HRNG ADELAIDE, 16 September 1992 #DATE 16:10:1992 Counsel for Gebert: Mr D.H. Peek Solicitors for Gebert: Jamison and Associates Counsel for Haley: Mr D.H. Peek Solicitors for Haley: Legal Services Commission Counsel for Black: Mr D.H. Peek Solicitors for Black: Legal Services Commission Counsel for respondent: Ms W.J. Abraham Solicitors for respondent: Director of Public Prosecutions

JUDGE1 MULLIGHAN J. The appellants were jointly charged with conspiracy to commit armed robbery. The particulars of the charge are that they, between 1st September 1990 and 6th October 1990 at Adelaide and other places, conspired together to rob a person or persons unknown whilst being armed with offensive weapons, namely firearms. They were also jointly charged, in the alternative, with possessing a firearm with intent to cause an offence contrary to s.32 of the Criminal Law Consolidation Act 1934. They all pleaded not guilty to both charges and after a trial by jury were found guilty of the first charge. No verdicts were taken on the second charge. 2. At the trial, each of them, at the end of the case for the prosecution, submitted that there was no case to answer. The learned Trial Judge rejected the submissions and the trial proceeded. None of the appellants called or gave evidence and after addresses of counsel and the summing up, the jury brought in the verdicts. 3. Each of the appellants appeals against the conviction on the first charge on grounds which may be summarized as follows:- 1 that the learned Trial Judge erred as a matter of law in ruling that there was a case to answer and he should have directed the jury to acquit each of them at the end of the case for the

prosecution or alternatively once each of them intimated that he would call no evidence; 2. that the verdict with respect to each of them is unreasonable and/or unsafe and/or unsatisfactory and/or it would be dangerous in the administration of justice to allow it to stand; 3. that a miscarriage of justice has occurred and the verdict is unsafe and unsatisfactory; 4. that the learned Trial Judge erred as a matter of law in his directions as to the jury as to onus of proof. 4. Despite the considerable body of evidence called at the trial, the essential facts were clearly established. At about 9.00 a.m. on 5th October 1990 a man left a blue Commodore motor vehicle owned by Telecom at a service station at the corner of West Terrace and Grote Street, Adelaide, for work to be done. At about 2.30 p.m. the appellant Gebert stole the vehicle from the service station. A few minutes earlier a Ford motor vehicle owned by the appellant Black entered the Central Market car park. Two employees of the service station followed the Commodore. It entered the same car park at 2.44 p.m. The two employees followed that vehicle into the car park. They saw the appellant Haley attract Gebert's attention and direct him to the Ford where the appellant Black was standing. Gebert brought the Commodore to rest near the Ford and the three appellants spoke to each other, but their conversation was not overheard. They were then seen to transfer items from the Ford to the Commodore and some items from the Commodore to the Ford. The two employees were in contact with the service station by a portable telephone and the general nature of their observations were related to another person at the service station who, in turn, contacted the police at 2.49 p.m. Soon after, three police officers attended at the car park. In the meantime the appellants had entered the Commodore and were in the course of leaving the car park when they were stopped by the police. Haley was driving, Gebert was in the front passenger seat and Black was in the rear. All of them were wearing gloves. They were arrested and the Commodore was taken back to Police Headquarters and searched. The following items were found in the Commodore, a fully loaded shotgun on the rear left seat and fully loaded .22 calibre pistol in the console between the front seats; a black bag on the front passenger's seat containing a cap, a pair of gloves, a long-sleeved singlet, overalls, 2 balaclavas and a pair of sunglasses; a brown bag on the floor near the front passenger's seat containing 2 ammunition belts with 49 shotgun cartridges and 3 loose shotgun cartridges; another pair of overalls on the rear left seat and another pair of sunglasses on or near the front passengers seat and a radio scanner tuned to a police radio frequency. Gebert was in possession of $720. The Ford was searched. Telephones which had earlier been in the Commodore and .22 bullets suitable for use in the pistol were found. Subsequently police attended at Black's house and there located a motor vehicle registered in the name of Haley. They are the overt acts upon which the Crown contended that the conspiracy could safely be inferred. 5. It was contended at the trial, and on appeal, that the evidence did not establish a case to answer. The test to be applied was discussed in The Queen v. Bilick and Starke (1984) 36 SASR 321. King C.J., with whom Mohr J. agreed, said at p 335:- "The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it is capable of producing in the

minds of a reasonable jury satisfaction beyond reasonable doubt."; and later at p 337:- "The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer." 6. The other authorities cited by Mr. Peek, who appeared for all of the appellants at the appeal, in his careful and helpful analysis of the cases, do not in any way detract from or modify that test: see Attorney-General's Reference (No. 1 of 1983) [1983] VicRp 101; (1983) 2 VR 410, The Queen v. R. (1989) 44 A Crim R 404 and Doney v. The Queen [1990] HCA 51; (1990) 171 CLR 207. 7. At the stage of the submissions that there was no case to answer, the learned trial Judge had to decide whether the evidence in the Crown case was capable of proving beyond reasonable doubt each of the elements of the charge of conspiracy to commit armed robbery. If it was, then the case had to be left to the jury as it is no part of the function of the judge to adjudicate upon the facts: The Queen v. Prasad (1979) 23 SASR 161, Attorney-General's Reference (No. 1 of 1983) (supra), The Queen v. R (supra) and Doney v. The Queen (supra). In the last-mentioned case, the High Court went on to say, at p 214:- "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 8. The Crown had to prove an agreement between the appellants to commit an unlawful act which act was particularized as an armed robbery. Unless the evidence in the Crown case was capable in law of proving that conspiracy as particularized, there was no case for the appellants to answer: R. v. Lacey (1982) 29 SASR 525 where King C.J., at p 532, acknowledged that "there cannot be a verdict of guilty if the conspiracy proved is a substantially different conspiracy from that alleged: R. v. Maria (1957) QSR 512", see also Gerakiteys v. The Queen [1984] HCA 8; (1984) 153 CLR 317. Of course, in the present case, as in most cases, there was no direct evidence as to the existence of an agreement between the appellants or as to the purpose and scope of the alleged agreement. The Crown relied upon the overt acts which I have summarized to prove the existence, purpose and scope of the agreement and that each of the appellants were parties to it. In the circumstances, the Crown had to exclude any other reasonable hypothesis: The Queen v. Doney (supra), at p 211. 9. Mr. Peek argued that whilst the circumstantial evidence was capable of proving that there was an arrangement or an agreement between the appellants, even to commit a crime, it could not prove the conspiracy as charged and particularized because the hypothesis that the accused had agreed to commit some crime other than armed robbery could not be excluded. He cited R. v. Thomas (Unreported, Victorian Full Court, 29th September 1980), R. v McCaul and Palmer [1983] VicRp 102; (1983) 2 VR 419 and R. v. Sienczuk (1981) 5 A Crim R 243. The judgment in Thomas (supra) was not available to us but is cited, in extenso, in McCaul v. Palmer (supra). In Thomas (supra) the accused were charged with conspiracy to commit an armed robbery. The evidence established an overwhelming case that there was a conspiracy to commit a criminal act and that the accused were in possession of a firearm, however the detail of the overt acts are not described in the report. Crockett J. is recorded, at pp 423-4 of McCaul and Palmer (supra) as having said:- "It may also be assumed that the elements of a conspiracy and relevant possession of a firearm were fully established by the evidence. But the evidence upon which the Crown placed reliance to establish that the applicant conspired to commit robbery is, at

best, equivocal. Proof that the agreement entered into was one to rob was dependent upon circumstantial evidence. To enable the jury to have been satisfied beyond reasonable doubt of the applicant's guilt of the offence charged, it was necessary not only that his guilt should be a rational inference, but that it should be the only rational inference, that the circumstances enabled them to draw. That is to say the jury were disentitled to return a verdict of guilty unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than that of the applicant's guilt of the crime charged. Of course suspicion (which was considerable in the present case) is not sufficient. Nor is it enough that the only rational inference is that a crime has been committed. The permissible inference, as the learned Prosecutor for the Queen conceded, must point exclusively to the commission of the crime charged - or at least to a lesser alternative offence, of which, at

common law or by statute, the jury were entitled to find the applicant guilty. There is, of course, no such alternative to the common law offence of conspiracy. There is a number of other crimes which the evidence placed before the jury would allow them rationally to infer the applicant conspired to commit. Reference to two such offences will suffice: abduction and aggravated burglary." 10. In McCaul and Palmer (supra) the accused were charged that they conspired together and with another to rob and to have with them a number of firearms. A number of overt acts were proved which suggested a plan to commit a robbery. The men were travelling in a motor vehicle which was involved in a collision. Palmer was found with an overnight bag which contained a revolver. Another revolver was found in the car which McCaul admitted belonged to him. Beach J., with whom the other members of the Court agreed, after citing the passage of the judgment of Crockett J. in Thomas (supra), to which I have referred, went on to say, at p 424:- "In the present case the onus rested upon the Crown to establish that the applicant McCaul was party to a conspiracy to rob. In my opinion there was no evidence before the jury admissible against him which established that that was the nature of the agreement he had entered into with Palmer and King. At no time did he make any admission to that effect. In fact, from the outset he denied that he was a party to any such plan. When one looks at the totality of the evidence admissible against him, it is mere speculation to assume that the object of any conspiracy to which he

was a party was to commit a robbery. His behaviour that night was equally consistent with his being a party to a conspiracy to commit any one of a number of other criminal offences; e.g. abduction, murder, or some other crime of violence." 11. In Sienczuk (supra) the appellant was also charged with conspiring with another man to commit an armed robbery as well as other offences. The two men were in a motor vehicle which was stopped by police because of a traffic infringement. The other men ran from the car carrying a bag containing two loaded shortened firearms, some housebreaking equipment, some equipment for disguise and an instrument which was capable of being used to break the steering lock on motor cars. The appellant remained in the motor car and made no admissions to the police, although he disclaimed knowing the other men, which was shown to be false, and said he had been hitchhiking. Street C.J., with whom the other members of the Court agreed, said, at p 245:- "... in my view the evidence was not sufficient to be capable of establishing the conspiracy which was charged against the appellant. There were other hypotheses open. The existence of these tends against recognizing that it was open to the jury to convict of this conspiracy to commit an armed robbery merely upon the basis of the objective facts that have been summarised. The summing up itself, in not stating the elements of armed robbery, tends to leave open the significance which might attach to these alternative hypotheses. Assisted, as the court has been, by the submissions of the Crown on this aspect - the Crown having conceded that there is a real difficulty involved in the absence of a specific direction on armed robbery - I have reached the conclusion that the conviction on the conspiracy charge should be quashed." 12. I accept Mr. Peek's contention that the approach in these cases is not inconsistent with the test to be applied at the stage of a submission of no case to answer as expressed in The Queen v. Bilick and Starke (supra). Those cases are, in my view, merely examples of the application of the correct test to the facts of each of them. If the evidence in the Crown case cannot exclude any reasonable hypothesis consistent with the innocence, Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619, then the evidence is not capable in law of proving the charge beyond reasonable doubt and there is no case to answer. In the present context that means that if the evidence cannot exclude any reasonable hypothesis that the appellants were guilty of some conspiracy other than as charged, there is no case to answer. The onus on the Crown is to exclude any other reasonable hypothesis. That judgment is to be made upon the evidence in the Crown case. 13. I have mentioned the overt acts which were proved and not disputed. An important question is what inferences could safely be drawn from those facts. The brief time span of the events and the events themselves, together with the items found on the appellants and in the Commodore, justify the following conclusions. Haley travelled to the car park with Black in the Ford at a time when Gebert was in the process of stealing the Commodore. The firearms and other paraphenalia found in the Commodore by the police are items of the type commonly used in armed robberies. These items were taken to the car park by Black and Haley. The circumstances of the theft of the Commodore rendered it likely that the police would be informed promptly, which was the case, and that police patrols would be alerted to watch out for the vehicle and apprehend any occupants. The meeting of the appellants at the car park so soon after the Commodore was stolen and the Ford entered the car park establishes that there was a pre-arranged plan by the appellants to meet at the car park. Furthermore, it could safely be inferred that Black and Haley dropped Gebert in the vicinity of the service station before they proceeded to the car park. It may be inferred from the transfer of the firearms and other items to the Commodore, a vehicle recently stolen, that the proposed criminal activity was imminent. The presence of the appellants at the car park, their conversation, their involvement in transferring the firearms and other items to the Commodore and their leaving together in that vehicle establishes that they were all involved in the planned criminal activity. 14. The nature of the planned criminal activity may be inferred from all of those circumstances, from the items found in the Commodore, and the fact that the appellants were all wearing gloves. It may be inferred that the planned activity involved one of them driving the Commodore and that it was to be used as a get away car. The other two were to wear disguise, overalls, balaclavas and sunglasses, during the activity and to carry firearms. The items for disguise could be disposed of quickly to prevent identification. Also, it may be inferred that the appellants appreciated that the proposed activity would very quickly be brought to the attention of police who would use police vehicles to locate the get away car and apprehend the occupants. Hence the radio scanner, which was tuned to a police radio frequency. It is also of significance that the 5th October 1990 was the Friday before a long weekend. It may be expected that there would be considerable activity in the retail sector and at financial institutions on such a day with the consequence that large amounts of money would be held at such places, thereby attracting the interest of robbers. All of these matters are hallmarks of an armed robbery and, in particular, of a financial institution or retail outlet which held money and had an alarm system. The bags found in the Commodore are consistent with the need of armed robbers to have a means of carrying the proceeds of a robbery. Two bags would be required if two robbers were to carry out the robbery. 15. The question is whether the evidence and the inferences which could safely be drawn is capable of excluding any reasonable hypothesis that there was an agreement to commit some other crime. To my mind that question must be answered in the affirmative. The evidence and the inferences which could be drawn established a very strong case that these appellants were party to a conspiracy, the purpose and scope of which was to commit an armed robbery. It is not difficult to speculate that the purpose and scope of the agreement was to commit some other crime, such as murder, abduction, another crime of violence or holding up a prison van to secure the escape from custody of a prisoner. However, such possibilities can be no more than mere speculation and none of them could rationally be inferred from the evidence as reasonable possibilities. In my view the learned Trial Judge was correct in rejecting the submission of no case to answer and in leaving the case to the jury. It was for the jury to decide whether they were prepared to draw the inference from the facts which they found proved that there was a conspiracy as charged and that the charge had been proved against each appellant beyond reasonable doubt. The evidence was sufficient for them to do so. 16. The second and third grounds of the appeal may be disposed of briefly. In my view, there was ample evidence before the jury to justify their drawing the necessary inferences so as to be satisfied as to the guilt of each of the appellants beyond reasonable doubt. 17. I now turn to the remaining grounds of appeal which relate to the directions of the learned trial Judge as to the onus, the quantum of proof. There are various complaints by the appellants as to these directions. First, it is submitted that the learned trial Judge misdirected the jury in his directions as to the standard of proof. He made it clear that the Crown had the onus of proving the charge and that nothing less than proof beyond reasonable doubt would do. He went on to say:- "'Reasonable doubt', ladies and gentlemen, is a phrase which is in common usage in our language. It means exactly what it says; no more and no less. It is a doubt which appears to you and seems to you to be a reasonable doubt. If you have such a doubt about the guilt of the accused, you will give that accused the benefit of that doubt and your verdict will be not guilty. If, on the other hand, you have no reasonable doubt, you are in the state of mind that the guilt has been proved beyond reasonable doubt, then your clear duty is to bring in a verdict of guilty." 18. Mr. Peek contended that this was a misdirection because it gave the jury to understand that they had to subject any doubt which they might hold to a further test, namely whether the doubt was a reasonable doubt. This Court has had occasion to deprecate attempts by trial judges to define what is a reasonable doubt: The Queen v. Wilson, Tchorz and Young (1986) 42 SASR 203, at p 206, The Queen v. Pahuja (1987) 49 SASR 191 at pp 194-195 and The Queen v. Britten (1988) 51 SASR 567. It is unnecessary to repeat what was said in those cases. An attempt to characterize a reasonable doubt is a misdirection: see Jacobs J. in Britten (supra) at p 573. These cases establish that if some amplification of reasonable doubt is desired, the direction should go no further than to tell the jury that a reasonable doubt is "one which they, as reasonable persons, are prepared to entertain": see Wilson (supra) at p 207 and Pahuja (supra) at pp 194-195. Whilst the direction was not precisely in those terms, I do not think that it could have been understood by the jury in any other way. There was no attempted definition of reasonable doubt by the use of some other expression and it was made clear that any doubt had to seem to the jury to be a reasonable doubt. In my view this direction was not a misdirection. 19. Also, Mr. Peek argued that the learned trial Judge misdirected the jury in the course of his directions as to the use to be made of the circumstantial evidence. The impugned directions are as follows:- "You may think, ladies and gentlemen - again these are matters which are entirely for you - that what was found in the Holden - that is the balaclavas, sunglasses, overalls - were, if nothing else, appropriate to some people who were prepared and about to commit some form of armed robbery. We have the stolen car and a driver and two other men who can take the firearms and

enter some premises for the purpose of committing an armed robbery. The stolen car can be abandoned. You know, if you accept the evidence of the police officers who went there, that Haley's van was parked at Black's premises. There was another vehicle, apart from the Ford, available to them. Is the only inference open to you, ladies and gentlemen, the only inference, that the plan was to commit an armed robbery? You may well be satisfied beyond reasonable doubt, as I have said, that at least the equipment in the car was such as you would expect prospective armed robbers to have with them. It was, ladies and gentlemen, pointed out to you that there are other offences for which that equipment may be appropriate - for

instance, kidnapping and the offence against the Correctional Services of aiding and abetting the escape of a prisoner. It would be naive to think that you are not aware of such an escape being carried out recently in this city - the stopping of a Correctional Services van by armed men. What you have to ask yourself, ladies and gentlemen, and ask yourself very seriously, assuming all of the preliminary things have been found by you to be proved to you beyond reasonable doubt, is the only reasonable inference to be drawn from the proved facts - the only reasonable inference - that these men were about to commit an armed robbery and were on their way to do it. If you are satisfied beyond reasonable doubt of that, along with all of the other facts which I have mentioned to you, then you will convict on the first count. You will be satisfied beyond reasonable doubt that they did the things they did in accordance with a pre-arranged plan, that they all knew what was in the Holden car and they were on their way, knowingly and in agreement, to commit an armed robbery. If you are not satisfied beyond reasonable doubt of any step in that process, then you will acquit them of the first count." 20. Mr. Peek's complaint is that the jury may well have taken that direction to mean that they should regard the evidence as only admitting of the hypothesis that the appellants had conspired to commit an armed robbery and not some other hypothesis. In short, the learned trial Judge had omitted to give the Peacock v. The King (supra) direction. Even standing alone, those directions could not be so interpreted. It may be seen that the learned trial Judge made it clear to the jury that they could only convict if they were satisfied beyond reasonable doubt that "the only reasonable inference" was that the appellants were about to commit an armed robbery. Furthermore, he drew their attention to other possibilities which had been advanced, presumably during the course of the addresses of the appellants' counsel. 21. However, later in the summing up, the learned trial Judge gave the following further direction:- "You have to consider the first count. You will consider all of the evidence but if you are satisfied, firstly, that what was observed by the mechanics and - assuming you accept their evidence - if you are satisfied that the only inference that can be drawn from their evidence is that these men were acting in pursuance of a common plan, a pre-arranged plan, when they met, when they were said to have met, in the Central Market Car Park, then you will go on to consider whether their subsequent departure was part of that plan - bearing in mind in the fact that they spoke and shifted stuff from one car to another and vice versa. If you (are) satisfied beyond reasonable doubt that the plan existed to carry out those actions, you will then consider whether or not you are satisfied beyond reasonable doubt that the equipment which I have said is at least consistent with the plan to commit an armed robbery - that is overalls, balaclavas, sunglasses, the gloves and the weapons - are you satisfied beyond reasonable doubt that they were in the car with the knowledge of each of them and driving off with those pieces of equipment was part of their common plan? If you are not satisfied of that, you will stop there and forget about the first charge but, if you are satisfied beyond reasonable doubt that all of that was part of their common plan, then you must ask yourselves the ultimate question: Are you satisfied beyond reasonable doubt that that plan was to commit an armed robbery? If you are not satisfied of that last part of the offence, then you will acquit them of the first offence." 22. In my view, the total effect of all of these directions, including the direction as to reasonable doubt, is that the jury were informed as to the onus and burden of proof and the need to exclude beyond reasonable doubt any criminal activity other than an armed robbery before they could convict the appellants of the first charge. There was no misdirection as to the use to be made of circumstantial evidence. 23. I would dismiss the appeal.

JUDGE3 OLSSON J. I agree that this appeal ought to be dismissed, for the reasons expressed by Mullighan J.