Regina v Niass

Regina Crown PARTIES: Barry John Niass Appellant

Mr R Jankowski Appellant COUNSEL: Mr D Arnott Crown

Hogan Geikie Poole Appellant SOLICITORS: S Kavanagh Crown

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 2004/2732 HUNT AJA GROVE J HALL J

1 HUNT AJA: The appellant, Barry John Niass, was convicted in the Parramatta District Court on one charge of break enter and steal. No verdict was taken on an alternative charge of stealing. Judge Payne imposed a suspended sentence of two years' imprisonment with a non-parole period of fifteen months. He has appealed against his conviction, but he has not sought to challenge the sentence imposed.

2 The Crown case was that the appellant was involved in a joint criminal enterprise to break and enter a factory and to steal a bobcat located in the factory by providing his truck to transport the bobcat away. There was no dispute at the trial that the bobcat in question was in fact driven out of the factory building and loaded on to the appellant's truck after a padlock had been removed from the factory's perimeter fence, an inner fibro wall had been broken in order to gain access to the bobcat and the bobcat had been "hot-wired" to enable it to be driven to the appellant's truck for loading.

3 The appellant's case was that his truck had been parked outside his house earlier that evening when he was approached by two men whom he had not known before and asked whether he would be prepared to assist them in collecting a bobcat as their own truck had broken down. A fee of $400 was agreed, and he gave the men his mobile telephone number to ring when they needed him. At 12.30 am the same night he received a call to go to a particular street in Guildford. He drove to that street, where, he said, he fell asleep in the cabin of his truck. He was woken by a man shaking him and telling him that the bobcat was "down there". He rolled the truck about 300 metres down a hill, when he saw the bobcat being driven through the factory gates. The bobcat was then reversed on to his truck.

4 The police arrived shortly afterwards and the other two men took flight. They have not been found. A spanner, pinch bar and screwdriver were located in the cabin of the bobcat. An ignition barrel from the bobcat with wires attached was located on the factory floor. A headlight on the bobcat had been removed in order to gain access to the back of the ignition barrel.

5 The appellant called his uncle to corroborate the conversation he had had at his house with the other two men.

6 The only element of the crime which was in dispute at the trial, and this was the vital issue, was whether the appellant knew that the factory was to be broken into and the bobcat stolen. The appellant's sole ground of appeal is that there was a miscarriage of justice, in that the jury should have had a reasonable doubt as to his guilt of that crime. Translating that ground of appeal into the terminology employed by s 6 of the Criminal Appeal Act 1912, what is being alleged is that the conviction was unreasonable or cannot be supported having regard to the evidence. If that ground is made out, this Court is required by s 6 to direct the entry of a judgment and verdict of acquittal.

7 Where the Court is asked by an appellant to exercise this power, it must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain that verdict, it was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; MFA v The Queen (2002) 213 CLR 606 at [25], [55].

8 In making such an assessment, the Court must pay full regard to two important considerations - first, that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and, secondly, that the jury has had the advantage which this Court has not had, of having seen and heard the evidence when it was given. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: M v The Queen at 493-494; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen at [56].

9 The appellant has characterised the Crown case as "principally a circumstantial one", and indeed he had the benefit of a circumstantial evidence direction at the trial. It is, however, wrong to characterise the Crown case in that way. There was direct evidence as to the breaking, entering and stealing by the other men involved and of the appellant's participation in a joint enterprise of some kind by providing the transport to take the bobcat away. There was no direct evidence as to the state of mind required on his part, that he knew that the joint enterprise was a criminal one. That state of mind had to be proved by way of inference, but that did not make the case a circumstantial one. There is no need to give a circumstantial evidence direction where the only inference to be drawn relates to the accused's state of mind: La Fontaine v The Queen (1976) 136 CLR 62 at 71-72, 81, 85; Regina v Tillott (1991) 53 A Crim R 46 at 50.

10 However, where the issue to be proved by inference is an element of the crime charged - as it was here - the required inference must nevertheless be the only rational or reasonable inference available from the evidence: Knight v The Queen at 502-503, 509-510. At different times during the summing-up, the judge told the jury that: (i) they should not draw any inference from the evidence unless it was the only inference which could be drawn beyond reasonable doubt in the circumstances (this was said twice); (ii) if there were a conclusion to be drawn from the evidence other than the one favourable to the Crown, their duty was to acquit; (iii) if they considered that the appellant's version of what happened could possibly be true, they must acquit him of both offences; and (iv) they must be satisfied beyond reasonable doubt that guilt was the only rational inference open on the evidence, that the Crown had to exclude to their satisfaction beyond reasonable doubt any other rational, reasonable inference which could be drawn, and that, if they formed the view that another rational inference consistent with innocence was open on the evidence, their duty was to acquit. 11 The relevant state of mind of the appellant to be established in relation to the first count was that the factory was to be broken into and entered and that the bobcat was to be stolen. The second count, that of stealing, would appear to have been applicable if the appellant had become aware that the bobcat was stolen only when he saw it being driven out of the factory, but in the event that issue need not be pursued in this appeal.

12 The Crown relied on a number of different matters to establish that the appellant knew that there was to be a break and enter of the factory in order to steal the bobcat. Its principal case was based on the evidence of a person who was in the vicinity at the time, standing on the street, when the appellant drove his truck up the street and back down it about five or so minutes later and then stopped some distance from the factory. This was between 1.00 and 2.00 am on a Monday morning. The bystander's suspicions were sufficiently aroused that he telephoned the police to report what he had seen. The Crown argued that the appellant's conduct was consistent with his knowledge that a break and enter was to take place at the factory and did not want to wait outside the factory whilst it took place and thus attract attention to that event. The bystander gave evidence that the truck moved down to the factory (without headlights) in response to a torch being flashed by a person at the factory.

13 The Crown claimed that it was significant that the appellant allowed the other two men to load the bobcat on to his truck rather than supervise the loading. However, the judge warned the jury that the bystander's evidence as to the events which took place outside the factory some distance from him may be unreliable because it was dark, and that they should be very cautious before accepting it. I do not understand that warning to have been applicable to either the flashing torch or the absence of headlights, as both clearly would have been visible at night in a suburban street, even from a distance.

14 The Crown also relied on the fact that the description which the appellant had given to the police of the other two men was inconsistent with the description the police gave of the two men who had fled. However, the judge warned the jury to be very cautious in relation to the police evidence on this point as it may also be unreliable because of the dark and the short space of time in which they could see the two men. The Crown argued as well that the evidence of the appellant's uncle as to where the conversation took place at the appellant's house with the two men was inconsistent with that of the appellant himself.

15 The Crown relied further on the facts that, according to the appellant's own version, he had never obtained the names of the two men who had asked him to provide transport for them when their own truck had broken down, and he never obtained a precise address to go to when the men telephoned him. The evidence of the arrangements being made was described as being fundamentally not credible.

16 Other matters on which the Crown relied were more matters of inference rather than direct evidence. The factory was near to the appellant's house, so that he had the opportunity to see the bobcat being used during the week and thus to plan the theft. There was no evidence as to how the other two men arrived at the factory (their own truck, according to the appellant, having broken down), and there was no suggestion that they escaped in another vehicle when the police arrived. The inference the Crown suggested was that the other two men had been dropped off at the factory by the appellant before he had stationed himself some distance away whilst the break and enter took place.

17 The defence's response to these arguments, as put to the jury in the summing-up, was that the Crown was relying on ambiguous assertions which, if proved, were capable of an innocent explanation, were inconsistent with the sworn evidence of the appellant and his uncle and, when properly construed and clinically analysed, were capable only of proof that the appellant might have known what was to happen, but not proof beyond reasonable doubt that he actually did know and thus was part of the criminal enterprise.

18 The appellant effectively accepted in his evidence that the bobcat was not the type or size of equipment moved at night to avoid traffic disruption. He nevertheless said that he was not suspicious of the two men wanting it moved at night, because their truck had broken down and they would have wanted to complete the job. The defence criticised the bystander's evidence, based on his inability to see the things he said that he saw. It was pointed out that there was no evidence that the appellant had spoken to the other two men at the factory. His fingerprints were not found on the three implements found in the bobcat. The bystander had been in a position to see whether the other two men had broken into the factory, but had not seen them do so. The evidence was consistent with the theft being an "inside" job, in that it had taken place when the alarm had been turned off, and that the two men who spoke to the appellant had known that the bobcat was inside the factory. The time of night when all this happened was explained by the fact that earthmoving equipment is often moved in the middle of the night because of its size and to avoid disruption of traffic during the day. The fact that the truck's headlights were not turned on could be explained as an accidental failure to turn them on. The lack of detail in the contractual arrangements was said to be consistent with usual dealings within the trade. The different descriptions of the two men by the police was unreliable in the way already discussed. It was said that the appellant was intoxicated at the time of his arrest, and thus was unlikely to have been a participant in what was described as a sophisticated operation to steal an expensive item.

19 The Crown had sought to meet two of these points in advance. It alleged that the two men who broke into the factory appeared to have been unfamiliar with the layout of the factory because of their need to break through an internal wall as well as remove a padlock from the outside door. The fact that the appellant remained at the premises when the other two men fled was explained by the fact that, according to his own version, the police had been at his house about an hour earlier that evening in response to a noise complaint and, the Crown had suggested, the truck would have been recognised as his. (The truck, although owned by him, had not yet been registered in his name.)

20 The appellant's argument before this Court was put succinctly in these terms: [T]he appellant contends that on the state of the evidence at the close of the defence case … there were two inferences equally open on the evidence one consistent with innocence and the other consistent with guilt, and a reasonable jury ought to have found that the inference or hypothesis consistent with innocence was open on the evidence and in consequence thereof such jury should have entertained a reasonable doubt. It is, of course, unnecessary for the inference consistent with innocence to be open "equally" with the inference for which the Crown contends. It is sufficient that the inference consistent with innocence is a rational or reasonable inference available from the evidence; if such an inference is available, the jury is obliged to give the accused the benefit of the doubt necessarily created by that circumstance: Knight v The Queen at 503. 21 The appellant's argument, however, proceeds on the apparent assumption that the mere existence of evidence which is consistent with innocence required the jury to acquit. The argument overlooks the need for the jury to consider for itself whether the Crown had excluded beyond reasonable doubt the evidence on which the accused relies as being a version which could possibly be true. That is exactly what the jury were told it must do (see par [10], supra). The issue in this Court is whether it was open to the jury: (i) to reject the version given by the appellant as a possibly true version of the events; (ii) to reject as a rational or reasonable inference from the evidence the possibility that the appellant was innocent (Knight v The Queen at 503); and (iii) to accept as the only rational or reasonable inference from the evidence that beyond reasonable doubt the appellant did know that the factory was to be broken into and the bobcat stolen before he took part in the joint enterprise. 22 Even on the record there is an apparent lack of credibility in the appellant's version. It was an inherently unlikely one. The bobcat was not equipment of the size which it was usual to transport on a truck sometime shortly after midnight in order to avoid traffic congestion. His explanation - that he was nevertheless not suspicious because the truck being used by the other two men had broken down and the men would want to complete the job - immediately raises the further issue as to why they wished to transport the bobcat on their own truck at that time of night. It is difficult to accept that this would not have raised the suspicion of the appellant. There was also the curious further explanation for his lack of suspicion which the appellant offered in cross-examination:

The reason why is because their truck broke down, perhaps they didn't want to leave it on the premises so it could be stolen again. Counsel appearing for the appellant at the trial, perhaps wisely, did not seek to have the appellant elaborate that answer in re-examination. 23 Even accepting that a degree of informality might be expected in making contractual arrangements of this type, the absence of any names given by the other two men and of an address being given where the bobcat was to be collected is nevertheless scarcely credible. The appellant's explanation for the strange movements of his truck immediately before the bobcat was driven out of the factory (including running it down hill to the factory with no headlights) was seriously inadequate.

24 The jury saw the appellant and the other witnesses give their evidence. That they rejected the version given by the appellant as a possibly true version of the events does not surprise me. It was clearly open to them to accept as the only rational or reasonable inference from the remaining evidence that, beyond reasonable doubt, the appellant did know that the factory was to be broken into and the bobcat stolen before he took part in the joint enterprise. I am not persuaded that there is any significant possibility that an innocent person has been convicted.

25 The appellant has also argued that the jury's verdict is further vitiated by the judge's failure to direct the jury that, even if they did not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence for the defence gives rise to a reasonable doubt as to that issue. The submission is based on the dissenting judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515. The majority of the High Court in that case had refused special leave to appeal on the basis that it had been open to the South Australian Court of Criminal Appeal to conclude that there had been no substantial miscarriage of justice caused by a misdirection as to the onus of proof and therefore to apply the proviso. The need for the direction which Brennan J had suggested should have been given in that case arose because of the particular conflict which existed between the Crown evidence and the evidence on which the accused relied.

26 This complaint has not been raised by the appellant in his Grounds of Appeal. Nor was there any application made at the trial for such a direction to be given. The appellant concedes that, by itself, the absence of such a direction would not be sufficient to justify setting aside the jury's verdict. What he submits is that, in the circumstances of this case, the failure to give such a direction provides support for his contention that, had such a direction been given, the jury may well have returned a different verdict. That submission is not easy to follow where the appellant seeks to have the conviction quashed because of the quality of the evidence given. If the direction should have been given and was not, and if the jury may well have given a different verdict if it had been given, then there has been an error of law which would normally lead to a new trial. That appears to be the real reason why there is no ground of appeal directed to the absence of such a direction, because the appellant seeks only the quashing of his conviction; he does not want a new trial.

27 I do not accept that it is appropriate for this Court to determine whether the conviction was unreasonable or cannot be supported having regard to the evidence - on the basis that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty - by reference to the possibility (or even the probability) that the jury may have reached a different verdict if a particular direction had been given. The issue in this appeal concerns the quality of the evidence given, not whether the jury may have acquitted the appellant if different directions were given. If there has been a misdirection then, barring exceptional circumstances, there would usually be a new trial. In order to rely on the absence of such a direction, the appellant would need leave: Criminal Appeal Rules, r 4. That leave will only be granted where its absence led to a miscarriage of justice: Regina v Wilson [2005] NSWCCA 20 at [20] - [21]. I am satisfied that there has been no such miscarriage.

28 The so-called Liberato direction is an appropriate one to be given in many cases where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true. The context in which Brennan J suggested that it should be given is where the jury is being invited to choose between the Crown witnesses and the defence witnesses as to who is to be believed (see 514, 519). Deane J, the other dissentient in Liberato v The Queen, said (at 519) that, even in that situation, what was required was no more than clear and unequivocal directions as to the criminal onus and standard of proof. It has now been held that a Liberato direction is not required as a matter of law in every case so that its absence demonstrates an error of law: Salmon v The Queen [2001] WASCA 270 at [99] - [103]; Regina v Chen, Siregar & Isman (2002) 130 A Crim R 300 at [79]; Regina v Burt (2003) 140 A Crim R 555 at [61] - [63].

29 In the present case, the jury were directed that, if they considered that the appellant's version of what happened could possibly be true, they must acquit him. Such a direction prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant's evidence to be true that it could give rise to a reasonable doubt as to his guilt. There was no suggestion that they had to choose between the Crown witnesses and the appellant as to who was to be believed. The directions concerning the onus of proof given to the jury in the present case (quoted in par [10], supra) deny the possibility of any misapprehension by the jury such as that contemplated by the Liberato direction.

30 Accordingly, I propose that the appeal against conviction be dismissed.

31 GROVE J: I agree with the orders proposed by the presiding judge and the reasons given.

32 HALL J: I also agree with the orders proposed by the presiding judge and his reasons.

33 HUNT AJA: The order of the Court is that the appeal against conviction is dismissed.

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