Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Aggravated armed robbery - Appeal against conviction - Evidence - Cross­examination of co­accused by counsel for appellant - Whether answers likely to prejudice fair trial of co­accused

Appeal - Criminal law and procedure - Aggravated armed robbery - Evidence - Prosecution tender of jackets not linked to any of the accused - Whether admissible - Reliance upon "lie" told by applicant - Whether capable of being shown to be a lie - Effect of - Whether substantial miscarriage of justice - Proviso

Appeal - Criminal law and procedure - Aggravated armed robbery - Multiple counts - "Similar fact" - Whether evidence on one admissible on others - "Propensity evidence"

Criminal law and procedure - Aggravated armed robbery - Parties to offences - Plan to rob shop - Opportunistic robbery of customer in shop - Whether criminal liability under s 7 Criminal Code attached to driver of getaway car outside shop

Evidence Act 1906 (WA), s 31A

CACR 19/2005 - Leave to appeal granted, appeal dismissed

Boardman v The Director of Public Prosecutions [1975] AC 421

Borg v The Queen [1972] WAR 194

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

Director of Public Prosecutions v P [1991] 2 AC 447

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Duong (1992) 61 A Crim R 140

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108

Lui Mei Lin v The Queen [1989] AC 288

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Murdoch v Taylor [1965] AC 574

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

R v Crabbe [1985] HCA 22; (1985) 156 CLR 464

R v Rowson [1986] QB 174

R v Tangye (1997) 92 A Crim R 545

R v Zheng (1995) 83 A Crim R 572

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444

Wood v The State of Western Australia [2005] WASCA 179

Zoneff v The Queen (2000) 200 CLR 234

Dick v The Queen [2001] WASCA 152

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Meaney v The Queen, unreported; CCA FCt SCt of WA; Library No 2267; 28 February 1978

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

R v Privitera [1966] WAR 12

"VIM" v The State of Western Australia [2007] WASCA 48; (2005) 34 WAR 1

1 ROBERTS-SMITH JA: On 10 February 2005 after trial before Jenkins J and a jury in the Supreme Court sitting at Rockingham, Laurie John Dodd and James Andrew Sweeney were convicted of four counts of aggravated armed robbery contrary to s 392(1) of the Criminal Code (WA). Jodie Tamara Quinn was convicted on two counts. Each seeks to appeal against conviction. There is an issue about whether leave to appeal is required or whether, in respect of some grounds at least, each has an appeal as of right. For convenience, I shall refer to them as appellants.

2 By count 1 on the indictment, Dodd and Sweeney were jointly charged that on 20 October 2003 at Lathlain, they stole with violence a cash register tray and money, from the Gallipoli Street Delicatessen. The charge alleged three circumstances of aggravation, namely that they were armed with an offensive weapon (a knife), they were in company with each other and that the shopkeeper was of, or over, the age of 60 years.

3 Count 2 charged Dodd and Sweeney jointly, that also on 20 October 2003 at Morley, they stole with violence a cash register tray and money, the property of the two Vietnamese proprietors of the Lincoln Food Centre, in circumstances of aggravation, namely that they were armed with an offensive weapon (a knife) and were in company with each other.

4 By count 3, Dodd, Sweeney and Quinn were jointly charged that on 24 October 2003 at Mount Lawley, they stole with violence a cash register tray and money the property of Jesters Jaffle Pie company, that they were armed with an offensive weapon, namely a knife, and pretended to be armed with a dangerous weapon, namely a pistol, and were in company with each other.

5 Finally, count 4 charged Dodd, Sweeney and Quinn jointly that on the same date and at the same place as count 3, they stole with violence, a handbag, cash and jewellery the property of a customer in the shop. The circumstances of aggravation alleged were the same as for count 3.

6 I shall deal with the appeal of each of the appellants separately, but before doing so it is convenient to summarise the way in which State opened its case at trial.

7 At the time of these robberies the appellants were under observation by the State Intelligence Service Covert Operations Unit. The operation was called "Operation Cleat".

8 On 19 October 2003, Quinn and Sweeney took a white Magna car belonging to Jennifer Collins, an acquaintance of theirs. They knew her and had been in her house. They took her keys and immobiliser and drove off with the car without her permission. It was returned on 21 October 2003.

9 Margaret Guilfoyle was the owner of the Gallipoli Street Delicatessen in Lathlain. She was more than 60 years old at the time. About 7.50 pm on 20 October she was in her shop when two men came in quite briskly. One had a large carving knife and the other had what was a pepper spray or something like it. They charged over the counter and threatened her. This was recorded on a security video. The offenders took the till drawer, searched various cupboards and went off with the till draw, spraying her with the pepper spray as they left. The offenders wore what was described as "very distinctive" clothing.

11 About 8.45 pm the same night, a Vietnamese couple were working in the Lincoln Road Food Centre, which they owned, when two men came in. One had a carving knife and the other had a pepper spray. One of them concentrated on the husband and the other on the wife. Threats were made and ultimately the offenders took the cash register tray and the money that was in it and departed.

12 A short while later, members of the Covert Operations Unit conducting surveillance at an address in Inglewood, saw two cars arrive. One was the white Magna; the other was a Ford Fairlane which had been associated with Dodd and his girlfriend, Cher Blight. Dodd was seen to get an item out of the Magna which then drove off and was later seen to stop in Hayes Avenue in Dianella, a short distance away. Somebody from the car went into the bushland. Police later went there, searched the area and found a cash register tray. When examined by police it was found to have been the till from the Lincoln Food Centre.

13 The Magna was observed to go to a petrol station where Sweeney alighted and was recorded on video.

14 The Magna was returned to Jennifer Collins on 21 October. On 23 October, Quinn borrowed it. This time Collins allowed her to do so because it had been previously returned. On this occasion, however, Collins did not get the car back until it was later returned by police.

15 On 24 October, Dodd and his girlfriend Cher Blight were at Dodd's address. He had the Ford Fairlane. About 11.36 am the white Magna arrived at Dodd's address at Inglewood Court. Sweeney was in the car with Quinn. They both went into Dodd's home.

16 A little while later, Dodd and Sweeney came out carrying bags and the three of them got into the Magna, Quinn driving. They then drove to various locations, still under surveillance, and were followed to the Dog Swamp Shopping Centre. The officers took video footage of them at various times during this period.

17 They were seen about 1.24 pm in Little Russell Street in North Perth. Sweeney then had a cloth wrapped around his head, although his face was still exposed. When the car left that location, it was observed that its number plate had been obscured by black tape.

18 They parked the car on Burt Street near the Jesters Pie Shop. As police watched, two disguised men ran into Jesters from the car. The pie shop was robbed, the offenders taking the till drawer and the cash contained in it. A customer was in the shop having a pie. The offenders saw her handbag and made her give it to them. She handed the bag to them, but followed them out and pursued them to their car, asking for her keys because she wanted them back.

19 The escape from the shop was video-recorded. The video shows the white Magna with its number plate obscured.

20 When the customer approached the car asking for her keys, a gun was pointed at her. The car then was driven off and was followed by the surveillance unit police officers.

21 Realising that the car was being followed, the driver stopped it. Dodd got out and pointed a gun at the car being driven by the police officers. At that time Dodd's face was not obscured.

22 Dodd got back in the car and the surveillance officers continued to follow. The police officers lost the car for a few minutes and when they saw it again the number plate was no longer obscured. They lost it again.

23 The car was dumped but the police did not discover it for a while.

24 In the meantime, Sweeney, Dodd and Quinn were seen going separately to the same address in Girrawheen. From there they drove away in the Ford Fairlane and were followed by police. About 3.15 pm they were stopped.

25 Jennifer Collins had telephoned Quinn about her car in the morning of 24 October. Quinn told her it had been stolen. That was a lie. When recovered by police, the car was intact and in perfect working order. Police also found in it a number of items which related to the robbery at Jesters Jaffle Pie Shop. The customer's bag and items of property were there as were a couple of Quinn's own cards.

26 There was a search of a house the State prosecutor said was "associated with these three" and that revealed the jackets he suggested had been used in the Gallipoli Street Delicatessen robbery.

27 I turn now to deal with the appeal by each appellant separately.

"1. The learned trial Judge erred in law in ruling that the applicants [sic] Counsel was not permitted to ask questions that were prejudicial to the co-accused.

2. The learned trial Judge erred in law in ruling that items of clothing (2 jackets) were admissible in evidence on behalf of the prosecution case on Counts 1 and 2.

PARTICULARS

2.1 The jackets were not relevant to the case as no evidence was adduced linking the jackets to the applicant.

2.2 There was no evidence that the jackets that were admitted as evidence were the same jackets that had been used in the commission of the offences.

3. The learned trial Judge erred in law in ruling that items of clothing (2 jackets) were admissible in evidence on behalf of the prosecution case on Counts 1 and 2 only as against the applicant.

PARTICULARS

3.1 The jackets were not relevant to the case as no evidence was adduced linking the jackets to the applicant.

3.2 There was no evidence that the jackets that were admitted as evidence were the same jackets used in the commission of the offences.

3.3 The learned trial Judge specifically referred to the evidence that the female co-accused was wearing the same jacket as the applicant 4 days after he was said to have worn it.

3.4 The applicant was denied an opportunity of suggesting that the jackets were relevant at least to the guilt of the female co-offender and also to the male co-offender.

4. The learned trial Judge erred in directing the jury that 'if you're satisfied that she (the co-offender) is wearing the jacket on the 24th, then that really goes to indicate that (the applicant) wasn't telling you the truth when he said that he just borrowed it on 20 [sic 21] October from the back of the car'

PARTICULARS

4.1 Assuming the jacket to be the jacket used in the offences, there was no necessary connection between the applicant wearing the jacket on the 20th [sic 21st] October 2003 and the co-accused wearing the jacket on the 24th October 2003.

4.2 The co-accused may have owned the jacket used in the robbery on the 20th October and was still wearing it on the 24th October 2003-without the applicant necessarily telling lies.

5. The verdicts of the jury on all counts were unreasonable and were not supported by the evidence.

PARTICULARS

5.1 No evidence was presented as to the identification of the applicant as one of the persons who was involved in the offences that were Counts 1 and 2, either at all or that was sufficient to establish beyond reasonable doubt that one of the offenders was the applicant.

5.2 The evidence on Count 3 and 4 that the applicant was seen a short distance from where the offences occurred was not sufficient to establish beyond reasonable doubt that one of the offenders was the applicant.

5.3 A reasonable jury properly instructed in the law could not have been satisfied on the whole of the evidence that the applicant was guilty of the offences charged."

29 The procedure adopted at trial in relation to the surveillance officers was for the individual officers to be called to give evidence of their observation of events and then to be cross-examined about those specific events and stood down. Any other officer giving evidence of that event or at that time was then called and cross-examined, before recalling the first officers to move onto the next event or period of time.

30 The first witness was surveillance officer 47 ("SO 47"). He said that on 20 October 2003 he was part of "Operation Cleat". He did not say what that was about, nor who was under surveillance. He described how observations made were recorded on running sheets. He was asked to give details of his first observation relevant to this case, which was at 8.46 pm on 20 October 2003. He said he saw Dodd talking to Cher Blight. They were standing behind a white Magna motor vehicle, the registration number of which he gave. They were at the front of 29 Harcourt Road, Inglewood. Dodd was wearing a black tank top and black track pants.

31 The next observation made by SO 47 was at 9.09 pm. That was of the Magna parked on Molloy Street, Dianella. Its headlights were off. He saw a male run from bushland towards the vehicle off Hayes Road.

32 The witness was then cross-examined by Mr Noble, counsel for Dodd. He put it to SO 47 that he knew Cher Blight, the person he had seen Dodd talking to by the Magna on 20 October 2003, was Dodd's partner, with which the witness agreed. He did not see the Magna arrive at Harcourt Road and could not say how Dodd got there. He was asked questions about the process of recording observations. He confirmed that he had been unable to see who the person was he saw running from the bushland at 9.09 pm. The rest of the cross-examination concerned notations in the running sheets.

33 Mr Hanbury, for Sweeney, opted to defer his cross-examination until completion of the evidence of the individual officers.

34 SO 47 was next cross-examined by Mr Roth, for Quinn. In response to questions, the witness said he had been involved in Operation Cleat for four or five days prior to 20 October 2006 and so far as he could recall, that day was the first time he had seen that particular motor vehicle.

35 Cross-examination of the surveillance officers thereafter followed the same pattern. Thus, for example, SO 69 confirmed in cross-examination that the first observation of the white Magna which he had said in evidence was at 10.35 pm on 20 October 2003, was the first time he had seen that car.

36 When SO 47 finally completed the whole of his examination-in-chief, he was further cross-examined by Mr Noble, who began by asking whether he understood the address at 29 Harcourt Street, Inglewood was where Dodd and Cher Blight were living at the time. The officer said that address was believed to be associated with them. Pressed on whether the police information was that that was their residence around that time, he said "It wasn't in concrete", but that was what he understood the position to be. The remainder of Mr Noble's cross-examination was brief.

37 Mr Hanbury then cross-examined. He began by putting to SO 47 that the running sheet seemed to indicate that the first time he had made any observation of Cher Blight was at 11.21 on 16 October 2003. The witness said he would have to check the sheets, but if that was what was recorded it would be right. He was asked if that was the day Operation Cleat commenced. He said it was the first day of his involvement that he recalled. Mr Hanbury then asked (t/s 338):

"Do you recollect, officer, in connection with that question that I just asked you, that at 9.55 on 16 October 2003 that observations commenced at and in the vicinity of ..."

38 At that point Mr Noble objected. Her Honour sent the jury out. Mr Noble then said:

"Your Honour will recall the last question that I asked this witness was did he understand the position to be that 29 Harcourt Street, Inglewood was the residence of Mr Dodd and Ms Blight and he eventually agreed that that was his understanding. Mr Hanbury is now going to ask this officer if Operation Cleat commenced and involved surveillance on the address of 29 Harcourt Street, Inglewood, which is my client's - in evidence appears to be my client's residence at the time.

I don't know if Mr Hanbury is going to go further than that and ask if in fact Operation Cleat was a surveillance operation that centred on Mr Dodd, but he doesn't need to go any further than asking whether or not it centred around the residence of 29 Harcourt Street. My submission is that that line of questioning is highly prejudicial to my client. It is immaterial whether or not the surveillance operation, as appears to be the case, was centred on my client. What is material is the evidence that has been given by the operatives in court and I would oppose any further questioning down that line."

39 Her Honour asked Mr Hanbury what he intended to ask. He said he was going to ask whether observations commenced at and in the vicinity of 29 Harcourt Street. He said he did not know who the operation was centred on and there was no evidence of that. Her Honour ventured the thought that counsel for Dodd was concerned that was what Mr Hanbury was going to ask the witness. Mr Hanbury said that even if that were right, he could still ask the question, but he was not going to because he did not know who the operation had been centred on. Her Honour said that in that case she was still not clear what question he intended to ask. Mr Hanbury reiterated that he wished to have the witness confirm that the running sheet for 16 October 2003 commenced with the words "In accordance with SISC tasking re Operation Cleat, observations commenced at and in the vicinity of 29 Harcourt Street, Inglewood".

40 Her Honour queried why it would be relevant to ask about the commencement of observations as a whole at 9.55, when the witness' first observation was Ms Blight at 11.21. Mr Hanbury said that his client, Sweeney, was not mentioned from the start to the finish of the operation and he wanted the jury to know that. Her Honour responded that counsel could do that without adducing that the observations commenced at and in the vicinity of the Harcourt Street address. She said she could understand Mr Noble's concern that it would be prejudicial to his client to have evidence led that would identify his client's address as being the focus of the operation.

41 After some further brief exchanges, her Honour ruled (t/s 342):

"My ruling is that I can see the prejudicial value to Mr Dodd in leading evidence that the observations commenced at and in the vicinity of 29 Harcourt Street, Inglewood, the inference being that that was the focus and the target of the operation. We have heard evidence that that is the address of Mr Dodd. I cannot see the relevance of that evidence to these proceedings and in particular in relation to the case of Mr Sweeney.

Therefore, I rule that that question cannot be asked. However, the witness can be asked when he commenced observations that day and where he was when those observations were commenced and he can also be asked questions to ascertain from him that Mr Sweeney was not observed - I think Mr Hanbury said he wanted to lead evidence that Mr Sweeney was not observed that day or at that time and there is no difficulty with questions being asked to ascertain that evidence. ..."

"Can I clarify something because I was intending to ask this officer or put it to this officer that from the time that he commenced his observations until the time his observations were complete, which I think was Thursday the 23rd, Ms Quinn was not observed by any officer to be in any area in which they were observing. If I understand your Honour's ruling, that is - - -"

43 The jury returned and Mr Hanbury's cross-examination continued (t/s 345):

"Did you commence on 16 October 2003 observations?---Yes.

Did you finish observations on the 24th---Yes.

So from the 16th to 24th you were in fact making observations in Operation Cleat. Correct?---Yes.

In the running sheets for the period of time, is there any mention at all of the name Sweeney? You haven't mentioned it, officer, but if it's there would you point it out for me, please?---No."

44 Mr Hanbury then questioned this witness about his identification of Sweeney at the service station and other matters.

45 The submissions advanced in support of this ground of appeal are that as there were not separate trials and each accused was separately represented, it was permissible for counsel to ask relevant questions. If this had the effect of prejudicing the co-accused, then that was not objectionable of itself. Further, it was open to Sweeney to blame his co-offender if that was what he wished to do, and his counsel was entitled to ask questions that might have that effect. It is submitted that a co-accused may cross-examine (as to bad character and prior convictions) as a matter of right, without leave of the trial Judge (Murdoch v Taylor [1965] AC 574; R v Rowson [1986] QB 174; Lui Mei Lin v The Queen [1989] AC 288). Finally, it is submitted, there is no rule of law that a warning should be given when the alleged accomplice who testifies is one of the accused (per Brennan J in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41).

46 So expressed, there could be no dispute about the correctness of those statements of principle. But they are not to the point in respect of this particular issue. What they do not address are the questions of relevance and the trial Judge's obligation to ensure a fair trial for each of the accused.

47 In his oral submissions on the appeal, Mr Hanbury explained that the purpose of the line of questioning he had wished to pursue was to demonstrate not only that Sweeney was not seen at the Harcourt Street address, but that at that stage, on 16 October 2003, he was not the subject of any police interest. It was Sweeney's position that he had an association with Dodd and Quinn, which explained him being seen with them at various times in October 2003. What he wanted to do was to "flesh out the fact that the police, at that stage, were already tailing Mr Dodd, but not Mr Sweeney". In summary, Mr Hanbury submits that the effect of her Honour's ruling was to prevent him asking questions framed in a way which might prejudice a co-accused, and so he was precluded from blaming the other accused, should he have wished to do so.

48 These submissions completely misunderstand her Honour's ruling. Her Honour did not rule that counsel could not ask any question that was prejudicial to a co-accused. It is common place in joint criminal trials for such questions to be asked by counsel for co-accused - that is why they are separately represented. The ruling was directed to a question or questions seeking or likely to elicit a particular response. Her Honour refused to allow Mr Hanbury to ask questions which would show, or tend to suggest, that Dodd was the focus of the police surveillance operation. The evidence to that effect would have been prejudicial to Dodd as suggesting he was a criminal or a person whom the police suspected of having committed or about to commit a crime. Evidence about who was the focus of the police operation or who in particular the police were following or what suspicions they may have had about individuals was irrelevant to any issue in the case - and it had the prejudice towards Dodd to which I have referred. Such evidence was therefore both inadmissible and unfairly prejudicial to Dodd.

49 Her Honour made this clear in her directions to the jury, when she said (t/s 860):

"... you must not speculate about why the police were surveilling the accused. It's simply irrelevant to your considerations. Concentrate on what the police operatives said they saw not on why they were doing it."

50 Her Honour's ruling was correct as a matter of law. In any event, even if the ruling was wrong, it occasioned no miscarriage of justice to Sweeney, because the point which counsel could properly have made, namely that at no time during the surveillance operation was an observation made of Sweeney, was not precluded by the ruling - and indeed was made by counsel in cross-examination immediately thereafter.

52 Dealing with procedural matters whilst the jury were out selecting their foreperson, the State prosecutor informed the trial Judge that he had been provided with a video of a police search of premises at Hector Street, Osborne Park, at which jackets were found which the prosecution would say were those worn by the offenders in the robbery of the Gallipoli Delicatessen. He said he had not had an opportunity to view the video, but might seek to tender it during the trial later, depending upon what it showed.

53 As I have mentioned above, in opening the State case he had told the jury the jackets the prosecution said were used in the Gallipoli Delicatessen robbery were found during a search of a house "associated with" the three accused.

54 The jackets referred to were found together in a wardrobe during a police search in Hector Street, Osborne Park. Their relevance was said to be that on the State case they were the jackets worn by the two offenders who robbed the Gallipoli Street Delicatessen about 7.50 pm on 20 October 2003, Sweeney was wearing the white Fubu jacket when seen and recorded on surveillance video at the Shell service station in Girrawheen about 21 minutes past midnight the following morning, and Quinn was seen wearing the same jacket reversed at the Dog Swamp Shopping Centre on 24 October 2003.

55 Later in the trial Mr Noble raised the issue of the jackets with her Honour in the absence of the jury (t/s 638). He said his understanding was that the prosecution intended to tender the two jackets through Detective Walker who would give evidence that they were found together at an address in Hector Street, Osborne Park on 24 October 2003, which was the address of an aunt of Sweeney's. He said the problem was that the basis upon which it was to be shown that the address was that of Sweeney's aunt was hearsay, and he was objecting to hearsay evidence.

56 The State prosecutor, Mr Fitzpatrick, told her Honour that it only concerned Mr Hanbury's client and he had discussed the matter with Mr Hanbury, who had no objection.

57 Mr Hanbury said he had a conversation about it the day before with Ms Huntley, junior counsel for the State. The evidence referred to was a video tape of a police search of premises at 234 Hector Street. The occupant, shown on the tape, was a Victoria Disilvio. According to Mr Hanbury, Ms Disilvio was heard to say certain things on the tape to the effect that the jackets were purchased from a particular place and other matters. Mr Hanbury said that he had that day learned that the officer in charge of the search, Detective Sedgwick, was ill and would not be giving evidence. He said he would not object to evidence being given about the finding of the jackets at Hector Street, but the fact was Ms Disilvio was not a relative of Sweeney's and he would be objecting to any evidence suggesting she was. Further, if there were to be evidence of some relationship between Sweeney and Ms Disilvio, it should be given by Ms Disilvio, as otherwise it would be hearsay. Finally, he said that until a few minutes beforehand, he had not been aware there was any suggestion that Sweeney had volunteered the information that Ms Disilvio was his aunt.

58 Responding to these objections, Mr Fitzpatrick confirmed to her Honour that he proposed to lead the evidence through Detective Walker, who had been present at the search. That officer would say that the information about the address was given to him by Sweeney. When queried by her Honour, Mr Fitzpatrick conceded that had not been the subject of a deposition. He added that he understood there had been an agreement between Ms Huntley and Mr Hanbury about the matter the day before. He had sought agreement because of what could be heard on the tape. After the police officers introduced themselves, Ms Disilvio told them that she was Sweeney's de facto aunt - not a blood relative, but seen as an aunt - that she had known him all his life and that he had stayed there for a couple of weeks, the last time he got out of prison. Mr Fitzpatrick said it was because of that last comment that he did not want to play the tape. He had suggested they agree the house was that of an aunt of Sweeney's and the jackets were found there. It would then not be necessary to tender the tape. He said that was what had been agreed. If that agreement no longer stood, the prosecution would want to play the tape before the jury, although it would have to be edited.

59 Her Honour observed it seemed there was no longer any agreement, so the tape would need to be edited and the State would have to give the defence written disclosure of the conversation Detective Walker would say he had with Sweeney. Her Honour added that she assumed that when editing the video, the State would delete not only the reference to prison, but also the reference by the aunt to her connection with Sweeney, as that appeared to be hearsay. That observation generated further submissions from defence counsel, who contended anything said in the video by anyone would be hearsay. The outcome was that her Honour gave the State time to serve the defence with a supplementary deposition of Detective Walker and to edit the video tape by deleting the audio altogether.

60 The matter was raised again in the absence of the jury the following week.

61 Defence counsel objected to any evidence being given about the jackets because, as they had been informed, the prosecution did not intend to lead any evidence of any connection between the Hector Street address and any of the accused. That being so, it was submitted evidence of the finding of the jackets would be irrelevant.

62 Mr Fitzpatrick's response was that the evidence was relevant because the video and photograph of the Gallipoli Street robbery clearly showed a very distinctive logo on the back of one of the jackets. That was a white Fubu jacket. It was the State case that was also the jacket Sweeney was seen to be wearing at the Shell service station, also recorded on video, a matter of hours after the Gallipoli Street robbery. Further, it was the State's case that Quinn was quite clearly to be seen wearing the same white Fubu jacket, reversed, at the Dog Swamp Shopping Centre. Finally, the two jackets were found together at the address of Sweeney's aunt.

63 So far as that last point was concerned, Mr Fitzpatrick told her Honour that the information had been given to the police by Dodd (not Sweeney, as he had earlier understood). As objection had been taken to that evidence, he proposed to deal with it simply by eliciting from the police officers that from inquiries that were made, an address was identified which was subsequently searched on 29 October 2003 and the jackets were found. He agreed there would be no connection put forward between the accused and the location of the jackets.

64 The defence maintained the objection that in the absence of any connection with the accused, evidence of the finding of the jackets was irrelevant. As Mr Roth expressed it succinctly in his submissions (at t/s 670):

"Unless the crown [sic] can establish an association between the jackets and one of the co-accused, there's no relevance. They might as well have come out of Myers."

65 Her Honour ruled that she would allow the evidence (t/s 670 - 671):

"In my view, the finding of the two jackets together at a residence some nine days after the commission of the Gallipoli Street robbery is a relevant matter. Having regard to the state's [sic] case, on the state's [sic] case it would be open for a jury to conclude that Mr Sweeney had a jacket of the type with the Fubu logo on it and that he was wearing it some hours after the Gallipoli Street robbery.

There is other circumstantial evidence which the state [sic] relies upon to connect Mr Sweeney with that robbery, and then also we have then this evidence that a Fubu jacket was found together with, in the same place, nine days later, a jacket of the same type, the state [sic] says, as was worn by an offender in the Gallipoli Street robbery.

That seems to me then to give the finding of the jackets together some probative value in the state's circumstantial case. Therefore, I am prepared to allow the evidence to be led."

66 Evidence of the search at Hector Street and the finding of the jackets was subsequently given. The jackets were tendered. Senior Constable Taylor gave some evidence of this. His cross-examination by Mr Roth concluded with the following exchange (t/s 689):

"... In relation to that search warrant that you spoke of apparently where these jackets were located, I think you have said - - -?---Yes.

Ms Quinn on the fair end - did she ever tell you that she lived there, resided there or stayed at that address?---No.

What about Mr Sweeney? Did he ever tell you that he lived there, resided there or stayed at that address?---No.

What about Mr Dodd? Did Mr Dodd ever tell you that he lived there, stayed there or even resided - sorry, resided or even stayed at that address?---No. However, I'm aware. ..."

Thank you. That's fine. Thank you. No further questions."

67 The State prosecutor asked for the jury to be sent out before he re-examined. He then told her Honour that he wished to ask the witness to complete his statement that he "was aware ...". Defence counsel opposed that course on the basis the answer would have to be hearsay. Her Honour heard the witness' evidence about that on the voir dire. His answer was (t/s 693):

"---I was aware that Dodd had told other officers that were involved in the inquiry that that was the address where Sweeney was residing. He had also taken two other officers for a drive by the address to point the address out.

Were you involved in any of that?---No."

68 Her Honour ruled that she was not prepared to permit that evidence to be elicited in re-examination. That was where the evidence was left, except that the search video was subsequently tendered and played before the jury, without audio.

69 It remains only to mention the directions the trial Judge gave to the jury about this. She first told them (at t/s 870):

"... the evidence of the jackets is not admissible against either Dodd or Quinn ... to the extent that those jackets are relevant it depends upon the connection of Mr Sweeney with a Fubu jacket on 20 [sic 21] October, so it does not concern Dodd or Quinn at all."

"... I move on to the issue of the jackets which I have said is evidence which the state [sic] urges you to use in respect to Mr Sweeney. The question for you is whether these jackets have any significance - sorry. It is a question for you as to whether these jackets have any significance in this case. The first thing to say is that if they do, they are only relevant to the case against Mr Sweeney. The reason for that is because he alone is said to have been wearing a Fubu jacket on 20 [sic 21] October. The evidence is only relevant to what occurred on that day.

The state [sic] says that Mr Sweeney wore a Fubu jacket at the service station on the evening of 20 [sic early morning of 21] October, and you will have the video of that. The state [sic] also says that Ms Quinn wore the same jacket on 24 October. You have heard submissions from counsel about that. One counsel says you can see on the video she is wearing the jacket; the other one says you can't. Well, you can have a look at the video for yourselves and decide whether she is or isn't, but the state's [sic] position would be that if you're satisfied that she is wearing the jacket on the 24th, then that really goes to indicate that Mr Sweeney wasn't telling you the truth when he said that he just borrowed it on 20 [sic 21] October from the back of the car.

The state [sic] says that the offender wore the red Dada jacket during the robbery on the Gallipoli Street Deli on 20 [sic 21] October and again you will have the video of that and you can decide for yourselves whether that happened. The state [sic] says that jackets matching the descriptions of the Fubu and Dada jackets were located in the wardrobe of a house in Hector Street, Tuart Hill. The state [sic] asks you to infer that the Fubu jacket was the one Sweeney wore on 20 [sic 21] October and that the Dada jacket was the one that the offender wore in the Gallipoli Street robbery.

The state [sic] says that given that they were found together, there is a further inference that the presence of the jacket Sweeney wore with the jacket worn by the offender found together in the same place implicates Sweeney in the Gallipoli Street robbery.

Mr Sweeney says, on the other hand, that there's no evidence that the Fubu jacket which is in evidence is the same jacket that he wore on 20 [sic 21] October. He said that he didn't think that the one he wore was reversible. He says further that he found that Fubu jacket in the car. It wasn't his. He says that there's no evidence that the Dada jacket is the same jacket the offender wore in the Gallipoli Street robbery. He says both jackets are common, commercial brands. He says that there's no evidence of any connection between him and the Hector Street proposition and because of all these holes in the evidence, you cannot draw the information [sic] that the state [sic] asks you to draw.

These are matters for you but as a matter of law you could only use the evidence about the jackets as tending to show Mr Sweeney's guilt of count 2 if you were prepared to draw the inferences the state [sic] asks you to draw about those jackets. When considering whether you are prepared to draw those inferences you should remember that there is no evidence to connect Mr Sweeney with this particular Fubu jacket and there's no evidence to connect him with the Hector Street property in which this jacket was found."

71 As the result of a request by Mr Hanbury for a further direction in relation to the jackets, her Honour later reminded the jury of the evidence to the effect that the jackets were subjected to forensic scientific examination and no forensic material was found on them linking them to Sweeney (t/s 925):

"... Mr Sweeney asks you to take that evidence into account, that there was no forensic material on those jackets linking him with them. On that basis he says that that is a further reason why you should not be prepared to draw any adverse inference against him in relation to those jackets and certainly you can take that view if you choose to do so. It's entirely a matter for you."

72 Ground 2 is made out. There was absolutely no evidence of any connection between Sweeney (or any of the appellants) and the jackets seized at Hector Street. There was no evidence to link any of the appellants with either the jackets or the address. There was no evidence from which it could be inferred there was such a link. Apart from something Dodd said in cross-examination, there was no evidence of how common the brand, style, colour or any other feature of the jackets was. Asked if he had seen the Dada jacket before, Dodd said he had seen "hundreds" of them (t/s 801 - 802), and "hundreds" of Fubu jackets too. He said he had seen numerous jackets like that in shops, on people in the streets; "Hundreds and thousands of them would have been sold". As Mr Roth had submitted, they "might as well have come from Myers". The evidence had no more probative value than evidence that the same two jackets had been found on a rack together at a Myers Department Store and seized by police, would have had. It is plain the State originally sought to lead the evidence on the understanding they would be in a position to prove Sweeney had been at the Hector Street address, but when that evidence was not forthcoming, the essential evidential link evaporated - and without it, the evidence was simply irrelevant and therefore inadmissible.

73 That conclusion brings into play s 30(4) of the Criminal Appeals Act 2005 (WA), which provides that even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred ("the proviso").

74 The proviso is in a form common throughout the Australian jurisdictions. The High Court recently had occasion to consider its history and application in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444; 223 ALR 662. The Court identified three fundamental propositions (at [39]). The first was that the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. That is not a question to be asked by reference to the jury at trial, nor a "reasonable jury". Secondly, the task of the appellate court is objective and not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.

75 As the Court explained at [41], the task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence. The Court emphasised that the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. Further, it is necessary always to keep two matters at the forefront of consideration, they being the accusatorial character of criminal trials and the fact that the standard of proof is beyond reasonable doubt. Their Honours noted that the permissive language of the proviso is important as is the fact it is conditioned on the Court considering no substantial miscarriage of justice has actually occurred. Although no single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given, one negative proposition can be offered. That is that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence.

76 Having regard to the nature of the examination of the whole of the case which must be undertaken in accordance with Weiss, it is convenient to defer that here until I have addressed the remaining grounds of appeal. I accordingly come to ground 3.

77 What I have said above also largely disposes of ground 3, in respect of which two of the particulars given go to the issue of the relevance of the evidence about the finding of the jackets. Particulars 3.3 and 3.4 turn upon the use of the word "only".

78 No point was taken about this discrete issue at trial. It is difficult to see what forensic use counsel for Sweeney could realistically have made of it. The Fubu jacket was said by the State to have been worn by one of the male offenders who robbed the Gallipoli Street Delicatessen. The State case was that person was Sweeney, because he was seen wearing the same jacket a few hours later. Given that Quinn and Sweeney were friends and had been in each other's company from time to time over that period, the fact (if it were so) that she was wearing the same jacket on 24 October would have no tendency to prove she had been involved in the robbery. There was no suggestion along those lines which counsel for Sweeney could properly have made. And there was no evidenced connection whatsoever with Dodd and that jacket, so that was even more the situation with respect to him. There is no substance in ground 3.

80 Sweeney and Dodd gave evidence at trial. Quinn did not. Sweeney said, in part, that in the late afternoon of 20 October 2003 he went by taxi to see Quinn at her mother's house at Bendix Way, Girrawheen. While there, he got a lift in the white Magna which belonged to Quinn's friend, Jenny, to the petrol station to get cigarettes. There was a white jacket on the back seat. He was wearing jeans and a t-shirt. It was a bit cool out so he put the jacket on. He agreed he was the person shown in the video wearing a jacket at the petrol station. He said that from the petrol station they returned to Bendix Way and he left the jacket in the car. He had never seen the two jackets tendered in evidence before. He did not think the white jacket he got out of the back of the car was reversible.

81 Police surveillance officers saw Quinn at the Dog Swamp Shopping Centre on 24 October 2003. She was wearing what the State maintained was the same Fubu jacket, but reversed, with the grey side out.

82 Counsels' addresses to the jury are not included in the appeal material, as, in accordance with usual practice, they were not transcribed. We therefore do not know how counsel dealt with this matter. The pertinent directions given by her Honour appear in those passages I have already set out above at [70] in particular, that if the jury were satisfied Quinn was wearing the jacket on 24 October, then that went to indicate Sweeney was not telling the truth when he said he just borrowed it on 20 [sic 21] October from the back of the car.

83 Even assuming it was the same jacket, I am quite mystified about how the fact Quinn was wearing it on 24 October could show Sweeney was lying when he said he borrowed it briefly on 21 October, taking it from the back of the car when they went to the petrol station and then leaving it in the car afterwards. Nor was Mr Dempster able to give any explanation of how Quinn wearing it on 24 October could show Sweeney was lying about that.

84 Whatever it was said to be, the "lie" was not one which was suggested as being direct evidence of guilt, so calling for an "Edwards" direction (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193). As Mr Dempster expressed the State's position on the appeal, it was a lie in the most general sense, going purely to credit.

85 As he himself was unable to say how Sweeney's account of how he came to be wearing a jacket at the petrol station on 21 March was shown to be a lie by Quinn wearing it on 24 October, Mr Dempster directed his submission to how that may have impacted on the trial. He submits that as the State's case was that Sweeney had been wearing the Fubu jacket during the robbery of the Gallipoli Street Delicatessen (which he denied having committed) a lie that he found the jacket in the back of the car when he and Quinn went to the petrol station some four hours later, was the same as a denial that he was one of the robbers. I do not think that gets to the problem.

86 The jury were told by her Honour that it was the State's argument that Sweeney was lying when he said he had found the jacket in the back of the car and left it there afterwards. If it was a lie, that lie went to Sweeney's credibility. He did give evidence, so his credibility was in issue. Mr Hanbury submits the trial Judge should have given a "Zoneff" direction (Zoneff v The Queen (2000) 200 CLR 234).

87 In Zoneff, the High Court said ([16] - [17]) that where there is a risk the jury might treat lies as evidence of guilt, the "preferable course" is for the trial Judge to ascertain precisely what use the prosecution seeks to make of that evidence. If the prosecution relies upon it as evidence of guilt, then a direction should be given in accordance with Edwards. If not, the jury should be instructed the evidence is relevant only to the accused's credit. Only by adopting that course can a trial Judge guard against "a perceptible risk of injustice". A Zoneff direction will not be required in every case in which the prosecution relies on an accused's lies as going to their credit. That will be so only where there is a risk the jury might treat the lie[s] as evidence of guilt.

88 Her Honour did not give a Zoneff direction in this case. She did not explain how the jury might logically conclude from the fact (if they found it to be) that Quinn was wearing the same jacket at the Dog Swamp Shopping Centre on 24 October, that Sweeney was lying when he said he found it in the back of the car on 21 October. Much more importantly, she did not direct the jury that evidence could not logically show Sweeney was lying about the jacket. It is true that in what she said to the jury her Honour was only recounting the argument which had been put before them by the prosecution, but in so doing, and without instructing them that reasoning in that way was not open to them as a matter of logic, her Honour was implicitly directing the jury it was.

89 Given her Honour effectively told the jury it was open to them to find Sweeney was lying about that, for the purposes of this ground, it must be assumed they did so. They may have concluded that he lied because he knew if he told the truth about it, namely that it was his jacket or at least one to which he had ready access, that would incriminate him in the offence charged - that is he was telling a lie about it because he knew he was guilty. There being at least a real risk that the jury might approach it that way, the trial Judge should have directed them against such reasoning and that, if they found it was a lie, they could use it only as going to his credibility.

90 The prejudice to Sweeney was first that the jury were told they could find he was lying about that if they were satisfied Quinn was wearing the jacket on 24 October, without being told how, in circumstances in which the evidence could not possibly have led to that conclusion. Secondly, in reality, the jury could not have found Sweeney was lying unless they were satisfied he was the person wearing the jacket during the robbery. This is precisely the sort of circular reasoning which Hunt CJ at CL criticised in the context of lies in R v Zheng (1995) 83 A Crim R 572, 576 - 578.

91 I would uphold this ground also. That brings me back to the proviso and consideration of the whole case.

92 Ms Collins' evidence was that she was a friend of Quinn's and had seen Quinn and her boyfriend Sweeney together a lot in the previous three months. On 19 October 2003 Quinn and Sweeney visited her. As they left at 7 pm she heard her white Magna car reversing down the driveway and down the road. Quinn was driving.

93 During the mid-morning of 20 October, Quinn telephoned Collins and said she was just down the road and would bring the car back. As that had not been done by 6 pm the following day, 21 October, Collins reported the car stolen. However, it was returned and when Collins asked Quinn where she had been, Quinn told her she had been "just driving around".

94 On 23 October, Quinn asked to borrow the car again and Collins allowed her to do so to drop her children off to school and on the condition that she then returned it immediately. However, she did not do so. On the morning of 24 October, Collins contacted Quinn on her mobile telephone. Quinn told her that Collins' car had been stolen from the Dianella Shopping Centre. Collins again reported her car stolen. On 27 October she was contacted by the police who informed her that her car had been found.

95 In the meantime, approximately 7.50 pm on 20 October, the Gallipoli Street Delicatessen was robbed. The evidence of the proprietor, Ms Guilfoyle, was that she was robbed by two men, one with a knife and the other who sprayed a substance at her. There is security video of the robbery. The video is in black and white. Both offenders were wearing balaclavas. One offender is wearing a dark jacket; the other is wearing a light-coloured jacket with a distinctive marking on the back.

96 At 8.20 pm SO 33 observed the red Ford Fairlane arrive at 29 Harcourt Street, with a single female driver. She got out and went into the premises. The surveillance operative said she returned to the driver's side of the car at 8.33 pm and then went back inside the premises. He identified her as Cher Blight. There was evidence that was the residence of Blight and her mother and that Dodd was also staying there at that time.

97 At 8.40 pm, SO 33 observed the Fairlane leave Harcourt Street with Cher Blight driving. She was the only occupant.

98 Sometime between 8.40 and 8.45 pm the Lincoln Street Food Centre was robbed. The two proprietors described what happened. The male proprietor said the man with the knife was taller than 1.7 metres and was slim but could not tell his skin colour. He said the second man had a similar body, and was also taller than 1.7 metres. In cross-examination he said he had told the police that the man with the knife was 170 to 175 cm tall but said that he was not then able to say how tall the person was. He did say he told the police that the offender was not over 30 years old, between 20 to 25 years, but it was very hard to tell because they were both covered and screaming. The female proprietor said the man who sprayed something in her face was very much taller than her. She is 1.5 metres tall.

99 Neither of them was able to give any useful description of the offenders.

100 At 8.46 pm, SO 33 saw the Fairlane arrive at 29 Harcourt Street. Cher Blight got out of the car and went to the rear of the Magna, which arrived seconds after the Fairlane. She there met Dodd, who removed something from the boot of the Magna and gave it to her. The operative said the item was approximately 30 x 20 cm and solid. He said that the number of occupants of the Magna were unknown but he did not see anyone else get out of it.

101 SO 47 saw Dodd speaking to Blight behind the Magna at 8.46 pm at the front of 29 Harcourt Street. At 9 pm the Magna was seen by SO 33 to leave Harcourt Street with four occupants whose identities he was not able to discern.

102 At 9.07 pm, SO 55 observed the Magna parked on the wrong side at Hayes Avenue, Dianella with the headlights off. He saw the rear driver's side door close. The lights went on and the car departed, turning left into Molloy Street. SO 55 returned and found a till tray located on the ground in the low bush on the verge of the road adjacent to where he had seen the car. This was later shown to be the till from the Lincoln Street Food Centre.

103 SO 47 had observed the Magna parked on the wrong side of Molloy Street with the headlights off at 9.09 pm, when he saw a male run from some bushland towards that vehicle. He was mobile at the time and the area was not lit. He saw the person in silhouette and could say only that it was a male.

104 At 9.23 pm SO 47 observed the Magna parked at 4B Morgan Way, Girrawheen. The Magna departed at 9.24 pm but SO 47 was not able to identify the occupants.

105 At 10.35 pm, SO 69 saw the Magna arrive at Harcourt Street. Two rear passengers exited the car and went into the house. He was not able to identify them. SO 69 observed the Magna leave Harcourt Street at 10.37 pm; again he was not able to identify the occupants.

106 The Magna was next observed to arrive at 39 Bendix Way, Girrawheen at 11.04 pm by SO 47. He said he saw a male driver get out of the car. SO 47 did not see the man's face at Bendix Way and was not able to positively identify him at that point, although he could see it was a male person with blonde hair and a pony tail. However, SO 47 subsequently saw the same person inside the Shell service station, and that was Sweeney. The Bendix Way address was that of Quinn's mother.

107 Shortly afterwards, about 12 minute past midnight in the early morning of 21 October, SO 69 observed the "male no 1" (identified as Sweeney) walk out of 39 Bendix Way and get into the Magna, joining another male who was sitting in the front passenger seat and who had remained in the car. The car departed.

108 SO 69 subsequently observed the Magna arrive at the shopping centre at the corner of Templeton and Marangaroo Drive, Girrawheen at 12.16 am. At 12.21 am it was seen by SO 47 arriving at the Shell garage off Templeton Avenue. He observed "male 1" going into the garage. Security video from the garage was exhibit 9. Sweeney admitted in evidence that the person shown there wearing a white Fubu coat was him.

109 At 12.48 am SO 55 observed the Magna parked in Finnerty Street, Karrinyup.

110 The evidence concerning the events of 19 to 21 October concluded with Ms Collins' evidence that Quinn returned the car to her on the morning of 21 October.

111 According to Collins, Quinn borrowed her Magna at 9.30 am on 23 October to take her children to school. Sweeney was in the car with her.

112 At 10.12 am on 24 October, SO 74 observed Dodd and Cher Blight at a public telephone box on the corner of Fifth Avenue and Beaufort Streets, Mount Lawley, with the Fairlane. Surveillance video footage was taken. Collins telephoned Quinn on her mobile telephone at 10.30 am. Quinn told her she was at the Dianella Shopping Centre and that the car had been stolen.

113 At 10.44 am SO 15 saw the Magna arrive at a public telephone box on the corner of Ninth Avenue and Beaufort Street, Inglewood. At the same time, Dodd and Ms Blight were seen using the telephone box at Fifth Avenue and then get into the Fairlane. They returned to Harcourt Street and both got out and went inside the residence. The Magna was seen to arrive there at 11.36 am. The Magna was seen by SO 66 to arrive and park outside 29 Harcourt Street. "Male no 1" (described as caucasion, medium build, about 25 years old, 178 to 180 cm tall, with short blond hair, wearing a red and white long sleeved top with white shorts with a black stripe down the side of the shorts) walked towards the residence and met Dodd. The two of them then walked back to the Magna. The man identified as Sweeney sat in the front passenger's seat. Quinn got out of the driver's side and went to the boot of the Magna. At 11.42 am SO 66 observed the Fairlane leave Harcourt Street with Mrs Blight driving and her daughter Cher in the front passenger seat.

114 At 11.44 am, SO 66 observed "male 1" (Sweeney) alight from the Magna and walk towards the residence at 29 Harcourt Street.

115 At 11.47 am he observed Dodd and "male 1" walk from the residence. Dodd was carrying a black bag and "male 1" was carrying a blue bag. "Male 1" got into the front passenger seat and Dodd got into the right rear passenger seat. "Female 2" (Quinn) was driving.

116 At 11.54 am, the Magna was seen parked in the driveway on Boag Street, Morley. It subsequently was driven around various car yards until just after 12.30 pm.

117 At 12.49 pm SO 45 observed the Magna parked on the verge of Venn Street, near Fitzgerald Street in North Perth. He saw Dodd get out and walk towards Fitzgerald Street. A couple of minutes later, Dodd was observed walking along Farmer Street, North Perth, putting on a blue t-shirt and blue cap. The Magna was following along behind. Dodd turned into Woodville Street, followed by the Magna. There was a female driver, a male front passenger and a male passenger in the right rear.

118 The Magna was next seen just after 1 pm parked at the Dog Swamp Shopping Centre in front of "Uncle Feng's" Store. Again, video footage was taken of this. Dodd, Sweeney and Quinn were seen inside the Dog Swamp Shopping Centre. They left about 1.11 pm. Dodd was driving.

119 At 1.16 pm on 24 October, the Magna was seen parked in the car park of 16 Little Russell Street, North Perth. At 1.24 pm, SO 36 saw Sweeney get out of the front passenger seat of the Magna with a white pinkish cloth wrapped around his head and neck with his face not covered. He said that Sweeney looked directly at SO 36, the operative looked straight back at him and Sweeney ducked back down into the car. In his evidence, Sweeney denied that they looked at each other and that he ducked back down into the car. The Magna departed from 16 Little Russell Street at 1.29 pm. SO 66 testified that when it drove off, the number plates were obscured by black tape. She could not see the occupants.

120 SO 15 said that at 1.31 pm he saw the Magna parked on Burt Street, North Perth, although he could not see the occupants. He saw two people run from the Magna towards Jesters Pie Shop and run in. He saw them in the shop and then saw some members of the public come out. According to him the people from the Magna were in the shop for 30 seconds to one minute.

121 The owner of the Jesters shop was out the back making pies when she heard the front door slam and a lot of yelling. She heard people say "get down". When she went out, a male came towards her. He had his face covered in what appeared to be blue bandages. He had a knife in his left hand and a black pistol-like gun in his right hand. He was wearing white baggy jeans and a dark coloured long-sleeved top. He told her to get down and whilst she did so she could hear someone else at the front, attacking the till. That person was yelling "Get her out here". He said he wanted her to open the till, but managed to rip the bottom part out himself. The two men then ran out the front door into Burt Street. Ms Anderson went to the window to get the number plate but it was covered in tape. A female customer ran after the men as they had stolen her handbag. She described the male with the gun as approximately 5 ft 7 or 8.

122 The customer said the man with the knife told her "We want your money". He came very close to her and said "I'm taking your bag". He took the bag and then ran out of the shop. She ran after the two men. When she was close to the car the gunman pointed the gun at her and said "Let go you bitch, or we'll shoot you". She retreated and they got into the car. There was a slight delay before the car sped off. She described the man with the knife as 5 ft 11 inches to 6 feet. He was wearing dark jeans, dark jacket, black knitted balaclava and there was a little light blue on him somewhere. She said he had very blue eyes. She described the second man as roughly 5 ft 10 inches, a little bit more heavily built. She said she could not see the driver's face because he or she averted or covered it, but the driver was of medium build. The customer said she was paying more attention to the man with the gun. She told the police that the getaway driver was a male because she thought that it could have been, but after thinking about it later at home, she thought that it could have been a female because of the behaviour of the car.

123 Another witness, Mr Papos, said the getaway driver had a hat and dark glasses on and was slouched over in the seat. He said that through the window it looked like a male figure. In cross-examination he agreed that he told the police the car was driven by a third male.

124 SO 15 said he saw the persons who had run from the Magna, come out of the shop and run back to the car. The male person with the tray came first and got into the front passenger's seat. The second male got into the right rear passenger seat. The operative saw an Asian female chase the two men. The second male turned and pointed the gun towards her and she backed off. The gunman then got into the car and the driver drove off away from Walcott Street (SO 15 gave a description of the two offenders). At 1.31 pm SO 74 observed the Magna with the registration plates blacked out, parked on Burt Street about 20 metres from the intersection with Walcott Street, North Perth. He observed a male wearing dark clothing, run from the pie shop. He took video footage of that. The video was exhibit 20 at the trial. He said the car took off under heavy acceleration.

125 SO 45 followed the Magna for about 100 to 150 metres as it left the pie shop. He saw the car stop near the intersection of Norfolk and Burt Streets. He saw Dodd get out of the vehicle, produce a black revolver and point it in his direction and go through the motion of appearing to fire at him. He said Dodd got back into the vehicle which then took off at high speed. Dodd denied this was him and it was contended at trial that the police officer's identification was unreliable and ought not be accepted.

126 Two other police operatives made observations of the Magna shortly afterwards, whilst there was still black tape obscuring the number plate, but lost sight of the car on Lockwood Street, Wanneroo.

127 A couple of minutes later, another operative saw it on Flinders Street, Nollamara. At that time the number plate was no longer obscured. It was followed but lost again in the vicinity of Lewes Road.

128 At 2.40 pm, SO 69 saw the red Fairlane at 4B Morgan Way, Girrawheen. A few minutes later, a taxi arrived and a male and female went into the unit. Sweeney, in his evidence, said around that time he and Ms Quinn took a taxi to that address.

129 The Fairlane left that address at 2.48 pm with Dodd driving, Cher Blight in the front seat and Quinn and Sweeney in the rear seats. At 2.52 pm, it was seen parked in the western car park of New Park Shopping Centre on the corner of Marangaroo Drive and Balgoni Avenue in Girrawheen. Sweeney was in the car. There was a female in the front passenger seat and Quinn was in the back seat. Someone appeared to be doing something with the boot. Again that was the subject of video footage.

130 The Fairlane left, with Dodd driving. A minute later it was seen to stop on the side of the road in Clover Square and Dodd and Sweeney got out and tried to close the lid of the boot or tie it down and they then drove off again. The Fairlane was observed to travel south on Wanneroo Road near the boundary of Balcatta and Nollamara. It stopped at a set of traffic lights at Amelia Street. Police in an unmarked car pulled up beside the Fairlane. The police car had a blue light on the roof. Within seconds, the Fairlane pushed and manoeuvred itself between two stationary vehicles in front of it and continued heading south through a red light and through the intersection. The police officers pursued them through the intersection and had a slight collision with the Fairlane. That car began driving along the footpath but came to rest when it hit a letterbox, about 200 metres down from the intersection. Dodd and Sweeney decamped but were caught. Dodd, Sweeney and Quinn were arrested.

131 The white Magna was located by police outside 34 Halland Way, Girrawheen on 27 October. It was locked, secured and undamaged. The pie shop customer's handbag was found in the car, together with the till tray taken from the shop. A bag containing Quinn's identity cards was in the boot.

132 Dodd's evidence was that he was in a de facto relationship with Cher Blight in October 2003. He was living at 29 Harcourt Street and moving to Dorking Place, Morley. He said that the white Magna arrived at the Harcourt address on 20 October. The driver was a Darren Smith, otherwise known as "Dasher". Smith was by the white Magna talking to Cher Blight when he came out. He described Dasher as 5 ft 7 with mousey brown hair, tied back. He said he spoke to Smith for a couple of minutes and then Smith drove off. He could not recall how many people were in the car, but it could have been two, three or four.

133 Dodd testified that he went to 4B Morgan Way, Girrawheen to pick up a van from a female by the name of Kelly, for the purpose of moving furniture. He said that Sweeney and Quinn later arrived in the white Magna. He agreed they went to various car yards in the white Magna. He agreed the observations made by the surveillance officers were of them. He admitted going to the Dog Swamp Shopping Centre. He said while Quinn was driving her mobile phone rang, so he answered it. The caller was Dasher Smith, who wanted the Magna back. Dodd said he arranged to meet Smith to give him the car, but Smith failed to appear. He said he tried to give the white Magna back to Smith once at Venn Street and then at Namur Street. However, when they got to Little Russell Street he left the keys in the ignition and walked off, calling Smith on his mobile to let him know. Dodd said he did that because Sweeney and Quinn had been arguing and shouting at each other from the shopping centre and he was just "fed up". He climbed over a fence and walked away. Dodd said he then called his girlfriend Cher to pick him up near her old school friend's house. She came in her mother's car, the red Fairlane. From there they drove to Mirrabooka Hungry Jacks and then to 4B Morgan Way.

134 According to Dodd, on arrival at 4B Morgan Way they were told they were too late as the van was now needed for something else. Sweeney and Quinn then arrived. They all left in the white Magna, driving through a red light at the Wanneroo traffic lights. He said the reason for that was because it was a reaction to a man they saw with a gun. He denied ever having seen the jackets found at Hector Street or ever having stayed at that address.

135 Sweeney denied ever having had a pony tail. He agreed his hair is blonde and that he had never changed it. He said he went to see Quinn at her mother's house in Bendix Way on 20 October, travelling there by taxi. He did not see Dodd at all that day. He said that while there he got a lift in the white Magna to the BP petrol station to get cigarettes. He said that Quinn's friend Jenny owned the vehicle. He said that at the time he was wearing jeans and a t-shirt. The jacket he was seen wearing at the service station was one he retrieved from the back seat of the white Magna and he left it there afterwards. He agreed that he visited car yards subsequently, and then going to Dog Swamp Shopping Centre and to some units on Little Russell Street with Dodd and Quinn. He recalled wearing a red and white jumper and white pants. He said that in the car, Quinn and he were arguing. At Little Russell Street he took his shirt off and left it in the car, as it was not his. He said he and Quinn got out of the Magna and walked off in different directions. He did not see what happened to Dodd. He did not know why they went to Little Russell Street. He said he walked for a while and then waved down a taxi which he took to the shopping centre at Girrawheen where he sat for about 40 minutes. He then called Quinn and she came in a taxi and met him and they both went to Morgan Way where they in turn met Dodd and his girlfriend. They all left in the white Magna, they went through the red light at the Wanneroo intersection as they saw a man with a gun. He denied ever having seen the jackets found at Hector Street.

136 In cross-examination he agreed he was at Collins' house and in the white Magna both times it was taken by Quinn. He denied getting back in the Magna at Little Russell Street and suggested what SO 36 thought was a "white pinkish" cloth he saw wrapped around Sweeney's head and neck was probably him taking off the red and white jumper.

137 The case against Sweeney turned essentially on the evidence of his association with the white Magna. The number plate aside, that was a reasonably recognisable vehicle. The photographs show it to be a Mitsubishi Magna Executive (showing damage apparently sustained at the time of apprehension, but otherwise) in excellent condition, unmarked, with a chrome tow bar ball, a flat white wing on top of the rear boot with embedded brake lights, but no roof racks or other accessories, and a Christmas tree air freshener hanging from the rear vision mirror. On his own evidence, Sweeney was in that car on both occasions Quinn took it from Ms Collins' place on 19 and 23 October respectively. Dodd was seen with the Magna at 29 Harcourt Street, where he was living with Cher Blight, only minutes after the Lincoln Street robbery on 20 October. A male person from the Magna dumped the till tray from the Lincoln Street robbery in bushland at Hayes Road about 15 minutes after the car left 29 Harcourt Street with four occupants. Shortly after 11 pm that night the Magna was at 39 Bendix Way, which was where Quinn's mother lived. Just after midnight, in the early hours of 21 October, Sweeney travelled in the Magna to the Shell service station. He admitted he was there, seen on the surveillance video, wearing a white Fubu jacket. The jacket was similar to that worn by one of the Gallipoli Street robbers. That robbery had occurred only about four hours earlier.

138 Sweeney was in the Magna again with Quinn when she took it from Ms Collins' home on the morning of 23 October. At 11.36 am that day the Magna arrived at 29 Harcourt Street, where Dodd was living, and Sweeney got out and met Dodd at the front of that address. After some time, Sweeney and Dodd, each carrying a bag, got into the Magna. Sweeney sat in the front passenger seat. Dodd sat in the rear. Quinn was driving. Between 11.54 am and 12.30 pm the three of them drove around various car yards. The three of them went to the Dog Swamp Shopping Centre. Quinn was observed there wearing a Fubu jacket, grey side out. The three of them went to Little Russell Street, which was described as a street only two car widths wide, with home units on one side and a high wall along the other. When they left the shopping centre, Quinn was driving, Sweeney was in the front passenger seat and Dodd was in the rear.

139 Sweeney admitted he was in the Magna at Little Russell Street. His evidence was that he had no idea why they were there. According to him and Dodd, all three of them got out of the Magna and walked off in different directions. A surveillance officer saw Sweeney standing by the side of the car with what appeared to be "pinkish white" cloth around his head and neck, although his face was obscured. According to the operative, Sweeney saw him and ducked down into the car.

140 The Magna was observed driving out of Little Russell Street. It had arrived there at 1.16 pm. It left 13 minutes later, at 1.29 pm, with strips of black tape covering the number plates.

141 The Magna was videotaped and photographed outside the Jesters Pie Shop while that robbery took place. Two males from the car ran into the store. One had a knife, the other had what appeared to be a pistol. The driver remained in the car. When the two men ran out of the shop with the till drawer, the man with the knife got into the front passenger seat. The other man went to the rear door on the driver's side. He pointed a gun at the customer who had run after them. A surveillance officer followed as they drove off. About 100 to 150 metres from the shop, the Magna stopped, and a male who the police officer identified as Dodd, got out and pointed a pistol at him. The police subsequently lost track of the Magna. Shortly after 2.40 pm, Dodd, Sweeney, Quinn and Cher Blight were all at 4B Morgan Way together.

142 On the evidence, the conclusion that the three people seen in the white Magna at the Jesters Pie Shop around 1.30 pm were the three accused, who were indisputably the three occupants of it in Little Russell Street only 13 minutes earlier, was inevitable. The accounts given by Sweeney and Dodd that all three of them simply left the car at Little Russell Street and went their separate ways, but happened to meet up again at 4B Morgan Way, lacked any possible credibility. Apart from its obvious difficulty of acceptance, that account would necessarily mean that within the space of less than 13 minutes, three other people happened upon the Magna, spontaneously decided to use it in a robbery, used black tape to obscure the number plates and then conducted the robbery at Jesters Pie Shop. Then there is the surveillance officer's identification of Dodd as the person who pointed the gun at him and the question of who were the people who used the same car two nights earlier to dispose of the till drawer from the Lincoln Street robbery.

143 The modus operandi of the offenders was the same in all three robberies. Two males burst into the premises shouting to persons present to get down and demanding money. One male had a knife, described as a large kitchen knife. In the first two robberies the men wore balaclavas. In those, the second man had a pepper spray. In each of them he sprayed a female proprietor in the face, (although at the Gallipoli Street Delicatessen Mrs Guilfoyle lowered her head and the spray hit her on the top of the head). In each instance the men took the till drawer from the cash register. In the Jesters Pie Shop robbery, their heads and faces were again covered. On that occasion, one of the men had a pistol. The first two robberies were committed about an hour apart. In the first of them, the Gallipoli Street robbery, the offender with the knife is seen to be wearing a light-coloured Fubu jacket, similar to that Sweeney is seen wearing at the Shell service station only four hours later. I have already mentioned the Magna was at Dodd's place within minutes of the Lincoln Street robbery and the till drawer from that robbery was disposed of from the white Magna about 20 minutes or so after the robbery.

144 The only surveillance officer identification of Sweeney which was disputed was that by SO 47 made at 11.04 pm on 20 October (see t/s 849). That was disputed because he described the male he saw get out of the white Magna at Bendix Way as blond with a ponytail. In the end nothing could have turned on that. The officer testified that was the same person he saw at the Shell service station shortly afterwards; Sweeney agreed that was him; and when his counsel reminded Sweeney of that evidence having been given by SO 47 he said (t/s 813):

"---It was me, sir, and I think they're mistaken about the ponytail. I did get into the car when it pulled up at Bendix Way but I didn't have a ponytail."

145 Given the whole of the evidence against Sweeney, a conviction on each count was inevitable. The wrongful admission of the evidence of the finding of the two jackets could not have affected that outcome. Nor could her Honour's directions in relation to the prosecution argument that if Quinn was wearing the Fubu jacket on 24 October, that indicated Sweeney was lying when he said he only wore it briefly on 21 October. The only way in which the jury could have come to the conclusion Sweeney was lying in his evidence about that, was if they were otherwise satisfied that he was one of the robbers and was wearing it during the robbery of the Gallipoli Street shop on 20 October. They could not have come to that conclusion consistently with her Honour's directions unless they were so satisfied beyond reasonable doubt.

146 I am satisfied, beyond reasonable doubt, having reviewed the whole of the record of the trial, taking into account only the admissible evidence and the "natural limitations" that exist where an appellate court does not have the advantage of seeing and hearing the witnesses, that Sweeney was guilty of the offences with which he was charged.

147 Although I would uphold grounds 2 and 3, I am satisfied that they did not result in any miscarriage of justice. I would accordingly grant leave to appeal but would dismiss the appeal.

"1. The learned trial judge erred in permitting to be admitted into evidence in the prosecution case two jackets when such items of evidence were not relevant nor admissible to the issues at trial.

PARTICULARS

(a) The two jackets were tendered in the trial as exhibits 17 and 18 and should not have been so admitted;

(b) The two jackets were not relevant to the evidence as they in no way could be linked in time or location to the Applicant;

2. The learned trial judge erred in law in directing the jury as to similar fact pertaining to Counts 1 and 2 and Counts 3 and 4.

PARTICULARS

(a) The learned trial judge left the issue of similar fact to the jury when the circumstances of the case would not warrant such a direction.

3. The learned trial judge erred in law in failing to separate the trials in respect of Counts 3 and 4 with Counts 1 and 2."

150 Ground 1 is limited to the evidence of the finding of the two jackets at Hector Street. The ground is misconceived, because that evidence was not admitted in Dodd's trial. It was not evidence against him and her Honour directed the jury very clearly to that effect. She said so repeatedly. Thus, at t/s 870 she said "... the evidence of the jackets is not admissible against either Dodd or Quinn ..." and that it did "... not concern Dodd or Quinn at all". At t/s 887 she reiterated that if the jackets did have any significance, they were only relevant to the case against Sweeney. Later, she said that the State argued the finding of the white Fubu jacket with the red Dada jacket implicated Sweeney in the Gallipoli Street robbery.

151 The evidence not having been admitted in respect of Dodd's trial at all, and the trial Judge having made that clear to the jury, there can be no substance in this ground.

152 As to ground 2, it is noteworthy that the "particulars" given in support of it, are not particulars at all, but merely a restatement of the ground in different words. The ground itself asserts error of law in her Honour's direction to the jury "as to similar fact" without stating what that error is said to be. The "particulars" appear to suggest no direction on similar facts should have been given at all. That indeed was the way it was put in oral submissions, although at the end the proposition appeared to be that her Honour should have told the jury they should not have regard to the evidence in respect of counts 3 and 4 when considering counts 1 and 2.

153 In his outline of submissions filed as part of the Appellant's Case dated 6 February 2006, Mr Moen contended the relevant statutory provision was s 585 of the Criminal Code and put there was no "striking similarity" between the offences charged in counts 1 and 2 and counts 3 and 4. He based that argument on the authority of Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 540; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 and Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at [294].

154 Section 585 of the Code was amended by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) on 1 January 2005. In its amended form it was in operation at the time of this trial, in February 2005, but that section had to do with joinder of charges and would only have been relevant to ground 3.

155 The same amending Act also introduced a new s 31A of the Evidence Act 1906 (WA), which also applied at the time of trial.

156 The effect of s 31A was explained by this Court in Wood v The State of Western Australia [2005] WASCA 179 per Pullin JA at [30] - [41]; and see generally, Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 at [92] - [130] per Roberts-Smith JA.

157 The present was a case in which the State relied upon the evidence in respect of count 3 to show that Dodd was also one of the offenders who committed the Gallipoli Street and Lincoln Street robberies on 20 October. Count 4, the robbery of the Jesters' customer, stood on its own. The evidence was relied upon as "similar fact" evidence to show the offences were committed by the same persons and Dodd was one of them (Boardman v The Director of Public Prosecutions [1975] AC 421; Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580). This is not a case in which there was any issue of concoction (cf Hoch v The Queen (supra)). "Similar fact" evidence is a species of "propensity evidence" as defined in s 31A(1) of the Evidence Act, and was admissible under subs (2) of that section. Because it was similar fact evidence directed to proving identity, its relevance (and hence admissibility) depended upon it being evidence of a character sufficiently special as to reasonably lead to that identification. Such probative force may be derived from "striking similarities" about the manner in which the crime was committed, but as Lord Mackay of Clashfern LC said in Director of Public Prosecutions v P [1991] 2 AC 447 at 460, restricting admissibility to such circumstances is to restrict the operation of a principle in a way which gives too much effect to a particular way of stating it, and is not justified. As his Lordship pointed out (at 460 - 461) the probative value of the evidence may have its effect from a combination of features, including "striking similarity" in the execution of the offences, but also including relationships in time and circumstance.

158 It is important to bear in mind the nature of the prejudice from such evidence which the courts have traditionally be concerned to guard against, either by excluding it where its prejudicial effect outweighs its probative value, or by giving appropriate directions to the jury. The same notion is now encapsulated in s 31A(2)(b) of the Evidence Act and s 133 of the Criminal Procedure Act 2004 (WA). The former requires the court to conclude that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The nature of the prejudice was described in Donaldson (supra) (at [127] - [130]) as follows:

"127 The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.

128 In R v H, Lord Griffiths spoke (supra, 613) of judicial fears that convictions might be based on 'emotion or prejudice rather than a fair evaluation of the facts of the case ... '.

129 The notion of what prejudice is sought to be guarded against in this context was identified by Callaway JA (Phillips CJ and Buchanan JA concurring) in R v Best [1998] 4 VR 603 at 614 - 616. As his Honour there made clear, it is the first of the two principles enunciated by Lord Herschell LC in Makin v Attorney General for New South Wales (supra) at 65, that evidence which shows that the accused has been guilty of criminal acts other than those charged cannot be relied upon for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offences charged - that is to say, that the accused is the kind of person likely to have done so. His Honour went on to say (at 615):

'Even if the view be accepted that some propensity evidence is admissible as such because of its high degree of relevance or cogency (Harriman v R at 598-9; Pfennig's case at 484-5), the tribunal of fact must not reason that just because the accused engaged in misconduct on a previous occasion, he is the kind of person who is likely to have committed the offence charged. It is such simple, but beguiling, reasoning against which a propensity warning is directed. Such a warning is not confined to sexual offences: ...' (Emphasis in original)

130 In my opinion, the unfairness with which s 31A of the Evidence Act and the risk of prejudice with which s 133 of the CPA are concerned, is the use of probative propensity evidence in this impermissible way. The term 'propensity reasoning' is apt to describe that process of reasoning which infringes the first of Lord Herschell's principles in Makin, to distinguish it from the process whereby, whether because coincidence or fortuitousness could not otherwise explain it, the subject evidence tends directly to prove the accused's guilt of the offences charged. I turn now to the grounds of appeal."

159 It remains now to consider how her Honour actually dealt with this issue in her directions. The relevant passages appear at t/s 881 - 884:

"Sometimes there may be such a striking similarity between two or more different acts that a jury may be satisfied beyond reasonable doubt that the people or person who committed one set of acts must also have committed the other. That is to say that the accused has put a certain stamp upon the crime which makes it easily recognisable that he or she must have committed both sets of crimes.

This would not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity, such a clear, underlying unity between both sets of acts as to make coincidence a very highly unlikely explanation for what happened.

That is what the state [sic] says here. The state [sic] says that it's so unlikely that you can disregard the possibility that two different people committed these crimes. If you decide that the state [sic] is right - but in doing so you must bear in mind that it's not sufficient if the evidence simply raises or deepens the suspicion that these accused are guilty of all offences - it must make any other conclusion than guilty an affront to your commonsense.

In this case the state [sic] says that provided you're satisfied beyond reasonable doubt that an accused committed the crime alleged in respect to count 3, that's the Jester's Pie shop robbery, then the circumstances in which counts 1 and 2 were alleged to have been committed were so similar as to lead inevitably to the conclusion that he must have committed the other offences. Similarly, the state [sic] says that if you are satisfied beyond reasonable doubt that an accused committed count 2 on the indictment, that's the Lincoln Road robbery, then there are such similarities between it and count 1 that the same accused must have committed that offence.

Before you can use the evidence of guilt or a finding of guilt on count 3 in this way you must be satisfied that the accused you are considering has committed count 3. So the way you reason is that if you're satisfied beyond reasonable doubt that an accused committed the Jester's Pie shop robbery, you may then go on and consider whether the similarities between that offence and count 2 in particular are so striking or of such clear underlying unity that they make coincidence a very unlikely explanation and you can consider whether the similarities indicate that the same person or people were responsible for each transaction.

As I have said before, you can use the evidence in this way: you must be satisfied that the accused was a party to each transaction; that is, that the accused put a certain stamp upon the crimes. In considering the question of similar fact evidence you should bear in mind all that counsel have said about it. You must look closely at the dissimilarities between the offences, as well as the similarities. You need only resort to similar fact evidence in relation to any one count on which you're not otherwise satisfied of the accused's guilt.

If you are satisfied that the similarities are striking, taken in conjunction with any other evidence pointing to an accused being the robber in relation to the charge you're considering, you may convict on that count if you're satisfied beyond reasonable doubt that he is guilty of it. You should only act on similarities which are striking and pronounced, however the offences do not need to be identical in all respects before you can rely on similar fact evidence.

Another thing that I must make very clear to you is if you're satisfied that an accused was one of the robbers in relation to one of the offences, you must not from that alone conclude that he is a person with a propensity or a disposition or a likelihood to commit the other offences and he's therefore guilty of those other offences.

If you're satisfied that an accused is guilty of one of the robberies, clearly you must convict him of that offence, but if you're not satisfied beyond reasonable doubt that he was guilty of another one, then quite clearly you must find him not guilty of it despite any finding of guilt in relation to another offence. As I have said, you must not reason that just because he's guilty of one, then he is likely to be guilty of all of them.

Mr Fitzpatrick has recently addressed you on the issue of similarities between the offences. The matters which he drew to your attention were the following, and I might miss a couple of them out but in essence there were these: that all the offences were committed on small shops, basically easy targets; that in all cases there were various degrees of violence used and that there was a degree of planning in respect to all of them; that they were committed on vulnerable, easy victims who were in the businesses; that the offenders were two male tallish, Caucasian offenders; that there's a similarity of weapons, that's more striking, if I can use that word, certainly in relation to counts 1 and 2 than count 3; that in respect to counts 1 and 2 there was the gratuitous use of some noxious spray; that in relation to all counts there was a waving of a knife around in close proximity to the victims; that in all cases force was used to attack and take the till tray, that there was dominant behaviour on behalf of the offenders; that in each case the till tray was taken without the money in it being sorted or removed prior to it being taken; that in all cases disguises were used the state [sic] says that you should also conclude that gloves were used; that the robberies were committed quickly, and in relation to count 2 and count 3 that the Magna vehicle was used in conjunction with the robberies. It is also pointed out that in counts 2 and 3 one offender goes to the front and one goes to the back, so there's a similar modus operandi.

In relation to dissimilarities, I have briefly referred to some of them, but in more detail: in respect to counts 1 and 2, the weapons were both described as a knife but I don't believe that there was any real consistency in the description of that knife, and of course also there's a consistency there that in counts 1 and 2 there was the use of the noxious spray. In respect to count 3, a knife and a gun was used.

In relation to disguises, there's a difference in the disguises. In counts 1 and 2 I think the description is of balaclavas. Although Ms Fischer said that the offenders wore balaclavas in respect to count 3, you may well conclude rather that they had some cloth of some type wrapped around their heads.

In respect to the nature of the businesses, the nature of the small businesses are different. Counts 1 and 2 are both delis but count 3 is a pie shop, as you know. In respect of the time of the robberies, that timing is different. Counts 1 and 2 are at night time and count 3 is in the daytime.

Members of the jury, those are the matters you should consider as to whether or not there are striking similarities between the offences such that you can use a finding on one count that an accused committed the offence as proof that he must also have committed another one of the offences. In this respect it would seem to me that you should consider carefully whether or not you are satisfied beyond a reasonable doubt that the Magna was used in respect to counts 1 and 2 as well as count 3."

160 These directions made it clear how the principle of similarity was to be applied in respect to the identity of the offenders. They explained that the only way the process of reasoning could work, was from count 3 to counts 1 and 2, an only if the jury were satisfied beyond reasonable doubt that the accused in each instance was one of the offenders who robbed the Jesters Pie Shop. Her Honour explained the similarities it was necessary to look for were those which were "striking and pronounced", although she correctly pointed out the offences did not have to be identical in all respects. Importantly, her Honour warned the jury that suspicion would not be enough and that if they were satisfied the accused was one of the robbers on one count, they must not conclude just from that fact that he was a person with a propensity to commit offences and so conclude he was therefore likely to be guilty of either or both of the others. The Judge enjoined the jury to otherwise consider each offence separately, and return a verdict of not guilty in respect of any offence of which they were not satisfied beyond reasonable doubt. She concluded with a detailed itemisation of what the State said were similarities and what the defence said were dissimilarities.

161 These directions aptly and comprehensively addressed the potential prejudice which was to be avoided by the jury dealing with this evidence in an inappropriate way. No error of law as asserted by ground 2 is demonstrated.

Jodie Tamara Quinn -v- The State of Western Australia

163 Quinn filed an application for leave to appeal against conviction on 25 February 2005. It should have been an appeal notice in accordance with s 28 of the Criminal Appeals Act and r 28 of the Supreme Court (Court of Appeal) Rules 2005. That contained two grounds. Ground 1 was a ground that the trial Judge erred first in failing to sever the indictment and order separate trials in respect of counts 3 and 4, and secondly in "admitting into evidence against the co-accused" the two jackets found at Hector Street. Ground 2 asserted her Honour erred in leaving the issue of "similar fact" to the jury as between counts 1 and 2 and counts 3 and 4.

164 At the commencement of the hearing of the appeal, Mr Young sought leave to add a new ground 4, going to her Honour's directions to the jury that Quinn's criminal liability on count 4 could arise under s 7 of the Criminal Code. He also sought leave to amend ground 1 to accommodate the fact that the ruling rejecting the severance application was made by Wheeler J (as she then was) prior to the trial, and not by the trial Judge. There being no objection, leave was granted in both respects.

165 The extant amended grounds are as follows (I have renumbered them to accommodate the amendments):

"1. The Hon Justice Wheeler erred in refusing to sever the indictment and order separate trials in relation to counts 3 and 4.

2. The learned trial Judge erred in admitting into evidence against the co-accused two jackets, as such items were not relevant nor admissible in the trial (particulars omitted).

3. In relation to count four of the indictment, the learned trial Judge erred in directing the jury that the Appellant's criminal liability could arise under s7 of the Criminal Code.

PARTICULARS

(i) it was clear from the facts of the case that the State case was that the Appellant and co-offenders had planned to commit a robbery at Jesters Pie Shop and to steal the takings thereof.

(ii) In the course of committing that offence, one of the co-accused stole a handbag belonging to a customer in the shop.

(iii) The learned trial Judge directed the jury at T889-890 that the jury needed to consider the Appellants [sic] liability in terms of whether she assisted or aided in the commission of counts three and four. Her Honour directed that it was necessary for the jury to find that she must know what offence was being committed and that she gave actual assistance during the commission of the offence.

4. Given the objective of the offenders was to rob Jesters Pie Shop of its takings, the Appellants [sic] liability for the incidental robbery of a customer could only arise pursuant to s8 of the Criminal Code, that is whether the robbery of a person other than the intended target was a probable consequence of the plan to rob jesters."

166 In respect of ground 1, Mr Young concedes Wheeler J made no error of law or principle when dealing with the application for separate trials, nor that she made any error of fact. What he complains of is the actual decision not to order separate trials. He submits it is really a question whether the trial could fairly proceed with evidence being given on counts 1 and 2, albeit a direction was given that Quinn was not charged with those offences and the evidence in respect of them was not admissible against her. That seems to me to be a ground that there was a miscarriage of justice because of all the counts being heard together.

167 It is submitted that there was prejudice to Quinn because there was evidence throughout the trial of surveillance of the three accused, particularly on 24 October 2003, but her being seen with Sweeney and Dodd was explicable on the basis she was Sweeney's girlfriend. There is nothing in this submission. Quinn's relationship with Sweeney was made clear to the jury. What was of particular importance in the trial was Quinn's association, and activities in connection, with the white Magna and the two other accused at times and in circumstances relevant to the robbery of Jesters Pie Shop.

168 The next submission advanced was that there was prejudice to Quinn in the evidence that it was she who took the white Magna on 19 October and again on 23 October, that she retained it without Ms Collins' consent and that in fact Collins reported it stolen.

169 So far as the case against Quinn was concerned, the evidence that she simply drove off in that car on 19 October without Collins' permission, was relevant to show she had access to it.

170 The car not having been returned by 6 pm on 21 October, Collins reported it stolen. However, Quinn returned it shortly afterwards.

171 It is submitted that had Quinn been tried separately, evidence that she had taken the Magna without consent could not have been before the jury and nor would other evidence of her close association with Sweeney, and that if the jury had been "left to focus solely on the events of 24 October [Quinn] would have had a greater prospect of acquittal".

172 That last conclusion might well be right, but is founded on a false premise. Evidence of Quinn's close association with Sweeney (and hence Dodd) was directly relevant to her involvement in the robbery of Jesters Pie Shop. So too was the fact that she drove Sweeney away in the Magna on 19 October and again on 23 October - and that she telephoned Collins in the morning of 24 October and told her the lie that someone had stolen the car.

173 Mr Young submits that given Quinn took the car on 19 October and (on the State case) that was associated with two robberies, returned and taken again on 23 October and used in another robbery, it would have been "only natural" for the jury, notwithstanding any direction, to entertain the suspicion that if not actually involved in the first two robberies, Quinn was at least involved in obtaining the car for that purpose.

174 The submission seems to come to the proposition that the jury might reason that although not charged with the first two offences on the indictment, Quinn was nonetheless involved in them and so was likely to have committed the offences in counts 3 and 4. I do not consider this a realistic proposition.

175 In relation to the point about the taking of the Magna, the trial Judge specifically directed the jury (t/s 860) that neither Quinn nor Sweeney had been charged with taking the car without consent. She told them that evidence was part of the background of the case and they must not be prejudiced against either Quinn or Sweeney because of it. Even if they accepted that evidence, they must not reason that because they took the car without Collins' consent, Sweeney and Quinn were more likely to have committed the offences with which they were charged.

176 At t/s 863 her Honour directed the jury that they had to consider each charge in respect of each accused separately, that it was not permissible for them to reason that if an accused was guilty on one count, they must be guilty on another or others, and nor could a finding of guilt against one accused mean that another accused was also guilty.

177 At t/s 870, the Judge instructed the jury that if a piece of evidence was only admissible against one or two accused, they could not take it into account when considering the case against the other accused. She said that evidence relating to the Gallipoli and Lincoln Streets robberies was not admissible against Quinn. She was not charged with those offences and the evidence about them was simply irrelevant to the case against her. She told them the evidence of the jackets was not admissible against either Dodd or Quinn.

178 The jury must be taken to have taken heed of and complied with these directions. Had they done so, none of the prejudice suggested in support of this ground could have arisen. I would dismiss this ground.

179 Ground 2 must be rejected for the same reasons I have given in respect of Dodd. The evidence of the jackets was not evidence in the trial against Quinn and the trial Judge made that clear to the jury. I turn to ground 3.

180 The trial Judge dealt with the basis of the alleged criminal responsibility of each of the accused at t/s 889 and following. She explained that the case against Sweeney and Dodd was that each of them physically committed the acts which constituted the offences and each aided the other to commit the robberies by their direct participation in the acts constituting the offences. That was an explanation that they were principal offenders within the meaning of s 7(a) and (c) of the Criminal Code. In respect of Quinn, she then said (t/s 889 - 890):

"In the case of Ms Quinn the state says that she - well, it's not suggested by the state [sic] that she actually physically committed the acts of robbery. However, it is suggested that she assisted or aided in the commission of counts 3 and 4.

It is the law that when a criminal offence is committed any person who has aided another person in committing the offence is deemed to have taken part in the commission of it and they're just as guilty of the offence as someone who actually held the gun or stole the money. So if a person aids in committing an offence, they are just as guilty of it as any person they assisted and who actually did the physical acts which constitute the offence.

So in particular this is how it comes to be that Ms Quinn is charged with counts 3 and 4. She can only be found guilty of these offences in the capacity of what I have described to you as an assistant or an aider. So what does it mean to assist or aid in a criminal offence? Before she can be found guilty in this capacity as an aider the state [sic] must satisfy you of two things: first it must satisfy you that she knew what offence was being committed by the people she aided in the sense that she had actual knowledge of the essential facts which make the acts done an offence.

It's not sufficient for her merely to have a suspicion as to what was going. That knowledge, however, may be inferred from proof of her exposure to the obvious. It's not necessary for the state [sic] to prove that the accused Ms Quinn knew that the two principal offenders were going to commit a particular offence called robbery or that they were going to rob a particular person and exactly how they were going to do it, but nonetheless before you could convict Ms Quinn you would have to be satisfied that she knew that basically the offence of robbery was going to occur; that is, that the principal offenders were going to commit an offence or offences which involved stealing property with threats of or the use of violence.

Secondly, the state [sic] must satisfy you that Ms Quinn gave actual assistance to the commission of the offence. Mere presence at the commission of an offence does not itself amount to aiding. For a person to be an aider there must be some deliberate active step or word or action which assists or encourages the commission of the offence. It's not enough for the state [sic] to show that the accused knew what was going on but did nothing to stop it. A person who is merely a passive spectator of a crime and does not take any part in it or does not interfere to prevent it, does not commit an offence in this capacity as an aider. To be an aider a person must give active assistance or encouragement to the commission of the offence.

In this case the state [sic] says that Ms Quinn aided the main offenders in that she must have driven them to the shop knowing that they were disguised and armed and that they planned to steal from someone with threats of or the use of violence and that with that same knowledge she drove them away knowing that they had accomplished their plan because they were carrying the till tray and a woman's handbag. ..."

181 The submission is that Quinn's liability in respect to count 4 should have been left to the jury on the basis of s 8 of the Criminal Code, not s 7. It is submitted that while it was open for the jury to infer that Quinn had knowledge that the co-offenders intended to rob Jesters Pie Shop, to put the case on the basis that she was liable for aiding and abetting any robbery of any person who happened to be in the vicinity, was putting the State's case too widely. It is submitted there was no evidence that Quinn knew of any intention to rob any entity other than Jesters Pie Shop, and indeed, the robbery of the customer appears to have been something of an afterthought on behalf of one of the co-offenders.

182 So the argument then goes, if there was no evidence that Quinn knew of any robbery taking place other than that of the pie shop, her liability could arise only under s 8, and the jury should have been directed that if they were satisfied the offenders formed a common purpose to commit that robbery, they should consider whether it was a probable consequence that a different offence, namely the robbery of another person, may have been committed.

183 The test contained in s 7(b) and (c) is a subjective one. It is that a person charged as doing an act for the purpose of aiding, or aiding the commission of an offence, is not liable for anything other than what they expressly agreed to, or realised might have been involved in the performance of the activity agreed to (Borg v The Queen [1972] WAR 194).

184 It must be accepted that, to paraphrase Dixon and Evatt JJ in Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 266, it does not follow as a matter of law that if Quinn aided and enabled the robbing of Jesters, she was criminally responsible for every criminal offence Sweeney or Dodd committed whilst inside. Whether that would follow from the facts was a question for the jury depending upon the conclusion they drew as to the nature of the plan to which she gave her aid, and her knowledge of their intentions.

185 It is true that where an accused's criminal responsibility relies upon aiding or enabling the commission of an offence (that is to say, someone who would have been an accessory before the fact at common law) that person must be proved to know or realise what offence was to be committed, that is, what acts were going to be done. As her Honour pointed out, it is not necessary for an aider under s 7 to know as a matter of law what the offence is, but only the essential facts which constitute the offence (per Gibbs CJ in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 487; R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 per Wilson, Deane and Dawson JJ at 506). Proof of intent is required, and it is an intent which must be based upon knowledge or belief of the necessary facts (Crabbe, ibid, 506).

186 The participants in criminal conduct pursuant to a plan, agreement or common design, are liable for all acts done by any of them in the execution of the design which can be held fairly to fall within its ambit (Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 per Barwick CJ at 111).

187 I use the terms "plan, agreement or common design" here in the context of the doctrine of joint criminal enterprise (covered by s 7 of the Code) not that of common purpose (covered by s 8 of the Code). In this case liability arrives from active participation, either before or at the time, in the commission of the offence itself by intentionally assisting the commission of it by the person who physically does the acts which constitute the offence. In such an instance, the aider (or accessory before the fact) is guilty of any offence within the scope of the plan, agreement or common design. The notion of extended joint criminal enterprise based upon common purpose, embodied in s 8, needs to be relied upon only where the offence charged is not the same as the enterprise agreed (see Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545, 556).

188 The evidence determining the scope of the criminal plan, agreement or common design to an aider (or accessory before the fact) is necessarily fixed at the time the accused parts company with the principals. Nothing which happens after that can provide direct evidence of the scope of the plan or agreement (Johns (supra) at 116).

189 Thus, the first critical step is to determine the scope of the common design. The question is whether the manner of carrying out the offence differs materially in kind from that agreed upon (Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108) or whether the particular offence, although uncontemplated and unexpected by Quinn, was reasonably within the scope of the plan to which she was a party (Duong (1992) 61 A Crim R 140, 148 - 149).

190 There was nothing in the State's opening which assists the resolution of this ground of appeal. The basis upon which the State was alleging Quinn's criminal responsibility for count 4 was not mentioned. Particulars were neither sought nor given. All that is before us is the record of the evidence and her Honour's directions. Counsel took no exception to her Honour's directions in respect of this at trial.

191 Had Dodd or Sweeney sexually assaulted a customer in the pie shop, the jury might have had little difficulty in rejecting any suggestion that Quinn was criminally responsible for that offence because she had agreed or realised beforehand that such an offence would be committed.

192 However, here the offence committed in relation to the customer was robbery - and all it was necessary for Quinn to know was that she was

driving the co-offenders there and waiting for them and then driving them away after they had stolen money with violence. Whether the money came from the till or from customers or staff, would be fortuitous and was not an "essential fact" in the sense that expression was used in Giorgianni.

193 To put it specifically on the basis the plan, agreement or common design was to rob the Jesters Pie Shop, in the sense that money would be taken only from the owner of the shop, is to put it too narrowly. The essential facts it was necessary to prove were that the three offenders intended to go to the shop and there steal money using whatever violence or threat of violence was necessary to do so. The State had to show Quinn knew that was the plan and participated in the execution of it, intending that to happen. That was the way in which her Honour directed the jury. Although it is no doubt true to say the armed robbery of the customer was opportunistic and unexpected, it was nonetheless an offence within the scope of the common design. There was no evidence that the common design was more restricted than the way I have described it above, which is the way her Honour put it to the jury. It was not necessary for the State to prove a more restricted agreement. Quinn's criminal responsibility was accordingly properly left to the jury in terms of s 7 of the Criminal Code.

195 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.

• Appeal by James Andrew Sweeney
• Dodd v The State of Western Australia
• Jodie Tamara Quinn -v- The State of Western Australia