Sweeney v The State of Western Australia [2006] WASCA 118

Sweeney v The State of Western Australia [2006] WASCA 118 - WASCA 2006 case summary — Zoe

[128]

"... 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."

[225]

"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."

[250]

"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. ..."

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Judgment (266 paragraphs)

Sweeney v The State of Western Australia [2006] WASCA 118 (27 June 2006)

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Legislation Cited (4)

Cases Cited (21)