Tuncbilek v R

Proceedings on Appeal 32The applicant filed a Notice of Application for Leave to Appeal on 16 March 2012. He drafted it himself and indicated that on the hearing of the application he proposed to appear for himself. The application was out of time. No objection was made to the Court extending time for the filing of that application and I propose that the Court do so. 33The Grounds of Appeal were somewhat discursive and consisted in part of stated ground and part of argument. It is perhaps best to set out the document in its entirety. At the commencement of the document, the applicant listed six short numbered paragraphs which were as follows: "(1) Biometrics (2) Identification (3) Surveillance (4) DNA (5) Phone records (6) Miscarriage of justice." 34These seem to be the grounds of appeal. The following then appears in the Notice of Grounds of Appeal: "(1) Judge failing to give proper direction to the jury based on available evidence presented at trial against me about circumstantial and what evidence based is against an accused, there was confusion of understanding by jury. (2) Judge failed in addressing the jury about the law of evidence that was aloud [sic] in my trial, such as the evidence of the police who presented themselves falsely, such as me being convicted of armed robbery, the verdict of the jury is unreasonable. Judge erred in giving proper direction to jury. (3) Biometrics was taken of me which police didn't use in court trial? (4) I was arrested with fake gun replica 'revolver' witness described Gloc [sic] style weapon plus balaclava. I was in possession of ski mask, not balaclava. (5) The only evidence against me is evidence is not to be in a stolen car which I was only ever on the day of my arrest. My cowies [sic - co-offenders] were under surveillance for two days. My only crime is the stolen car. (6) Crimes that were committed by offenders they pleaded guilty. The only time that I entered the vehicle was on my arrest day." 35Accompanying the applicant's application for leave to appeal, and the grounds of the appeal, was a single page of written submissions. 36Again, it is best if the entirety of those written submissions are set out: "(1) The only time I entered vehicle used in previous was the day of 21 August 2009. The evidence clearly shows this account to be true. (2) 31 July 2009, 10 August 2009, 2x armed robberies occurred in the Central Coast area on banks. The two co-accused responsible to the crimes of armed robbery pleaded guilty. Phone records prove my innocence of involvement and evidence. (3) The evidence of surveillance shows that my only involvement in a crime was on 21 August 2009 in Kerr Road, Auburn. Not on 31 July and 10 August in Central Coast area with accused people who pleaded guilty. (4) Phone records even prove I wasn't in company with the other two co-accused who were always next to one another. They pleaded guilty because obviously they are guilty to the crimes they did. (5) There has been a very seriously big miscarriage of justice against me. The evidence proves this against me biometric/description/identification. Basically evidence proves my say of my truth against jury and direction of judge." 37In order to consider the application for leave to appeal, and the grounds of appeal, it is necessary to have an understanding of the Crown case presented at trial. 38In so doing, for the purposes of this appeal, the only conviction with which this Court is concerned is that of the armed robbery at the Greater Building Society at Lake Haven on 10 August 2009. Although some of the facts relating to the other offences may be contextually relevant, it is appropriate to concentrate on the Crown case with respect to the Lake Haven armed robbery which was presented to the jury. It is necessary to keep in mind that the applicant presented no evidence to the jury, so the only evidence which the jury had was that presented by the Crown and the cross-examination engaged in by experienced counsel for the applicant.

Crown case on Lake Haven armed robbery 39The Crown alleged that the applicant was engaged in a joint criminal enterprise with other men, including Mr King and Mr Taotala (who pleaded guilty to the armed robberies), and that the enterprise was to rob the Bendigo Bank at Lisarow on 31 July 2009, and the Greater Building Society at Lake Haven on 10 August 2009. 40It was the Crown case that there were significant similarities between these two robberies and the events of 21 August 2009, when the applicant was arrested at Auburn. 41Those similarities were, shortly stated, these: (a)the armed robbery at Lisarow and Lake Haven was carried out by men armed with, or carrying, a red handled sledgehammer, a blue crowbar with a yellow sticker on it, and a pistol. As well, each of these robberies were carried out by men who escaped from the scene in a silver Subaru sedan. (b)on 21 August 2009, the appellant was arrested in a stolen silver Subaru sedan with Mr King, Mr Taotala and Mr Brough. At the time of his arrest, as his plea of guilty indicates, he was in possession of a replica pistol and was intending to rob a credit union at North Ryde. In the car was found a piece of notepaper indicating the location of the credit union and some basic directions. A red handled sledgehammer and a blue crowbar with a yellow sticker was found in the boot of the vehicle. 42The Crown case was a circumstantial one. The Crown case commenced with the facts and circumstances surrounding the arrest on 21 August 2009. 43The evidence before the jury was that from the morning of 21 August 2009, the silver Subaru motor vehicle in which the applicant was arrested, had been kept under either physical or else electronic surveillance. Mr King and Mr Taotala were seen in each other's company and in the Subaru for a good part of 21 August 2009. Mr Brough was first detected by surveillance at about 3.15pm on that day. The applicant, who was carrying a black and yellow backpack, first appeared on the electronic surveillance at about 3.28pm riding a bicycle in an easterly direction along Kerr Parade in Auburn. A recording of the electronic surveillance footage from that time was tendered at the trial. 44From about 3.30pm, for a period of four minutes, Mr King, Mr Taotala, Mr Brough and the applicant were seen, by an undercover police officer, walking south on Marion Street, Auburn from the vicinity of Kerr Parade. The applicant was pushing his bicycle. Outside 9 Marion Street, Auburn, the four men engaged in conversation during which time the applicant was seen to pull what was apparently a silver revolver out of the front of his trousers, and showing it to his three companions before replacing it down the front of his trousers. Further surveillance continued, during which time the men were sometimes in each other's company and sometimes not. 45At about 4.04pm the four men were captured by electronic surveillance getting into the silver Subaru. The applicant occupied the rear passenger seat. 46A few minutes later, police stopped the Subaru as it travelled south on Kerr Parade. It appeared that the Subaru attempted to escape, but police vehicles blocked it effectively. 47The four men were removed from the vehicle. Because capsicum cartridges had been fired into the rear window of the Subaru, the applicant was found to be unconscious. An ambulance was called and he was taken to hospital. 48The Subaru was searched carefully, a video recording of the search was taken and it was tendered at trial. 49As earlier indicated, the search revealed that in the rear luggage compartment of the Subaru there was "Trojan" brand sledgehammer with a red handle and black rubber grip, a blue "Mumme" brand crowbar with a yellow sticker on it, and a machete attached to a vehicle windscreen sunshade deflector. Also in the boot were the legitimate registration plates for the motor vehicle. The registration plates displayed on the motor vehicle at the time it was stopped were stolen from another silver Subaru some days earlier. 50A black and yellow backpack was recovered from the area backseat of the car which contained a black "Magic" brand ski mask, a black full-face balaclava and a black spray paint can. 51When Mr Taotala was searched, he was found to have in his pocket a handwritten note which read "CREDIT UNION 1/3 Julius Avenue, North Ryde". The note also had some further words "off Epping Road to Rivett Road" which was circled. 52The notepaper upon which this note was written was particularly characteristic. It featured a black border with word "Maggie" printed in black with Asian characters underneath. The bottom corners feature images resembling Mickey and Minnie Mouse. The note was tendered to the jury. 53Within a few hours of the arrest, police executed a search warrant at Mr King's residential premises. Photographs taken at the premises were tendered at the trial. The photographs included images of a notepad which identical paper to the note found on Mr Taotala at the time of the arrest. As well, a street directory opened at a map of North Ryde and surrounding suburbs, was found on a table in the premises. 54Photographs taken in the basement carpark of Mr King's residential premises showed an area where black spray paint was on the floor and wall. 55Items from the silver Subaru were submitted for DNA analysis. DNA recovered from the ski mask and balaclava found in the black and yellow backpack, and a swab from the rear offside interior door handle of the Subaru, adjacent to where the applicant was observed to be sitting at the time of arrest, was found to match the DNA profile of the applicant. The sledgehammer handle, the crow bar and the machete handle could not be successfully tested for DNA. 56It is appropriate to record here, that in front of the jury, the applicant admitted, by pleading guilty, to the three offences relating to the circumstances of the arrest on 21 August 2009, including that he was armed with a replica pistol with intent to commit an indictable offence (namely, an armed robbery), that he was travelling in a stolen motor vehicle and that he had possession of the relevant pistol. 57It was the Crown case that two armed robberies which had occurred on the Central Coast within a few weeks prior to the arrest of the applicant bore striking similarities to the events of 21 August 2009, such that it was submitted to the jury that it would conclude that the applicant was jointly responsible for those two armed robberies. 58Before the jury, when dealing with the two armed robberies, the Crown presented evidence which included evidence from a police officer that Mr King and Taotala had admitted their involvement in both the armed robberies at Lisarow and Lake Haven. It was also noted that Mr Brough, the fourth gentleman found in the motorcar on 21 August 2009, had not been charged with respect to either of the two armed robberies. 59The Crown also tendered CCTV footage of each of the armed robberies.

Armed robbery of Bendigo Bank at Lisarow 60The CCTV footage showed that only two men entered the Bendigo Bank at Lisarow. Both were wearing balaclavas. One man was armed with a red handled sledgehammer, which he used to smash the glass panel adjacent to an automatic teller machine and gain entrance to the office area of the Bank. It was the Crown case that the other man on the CCTV footage was armed with a blue crowbar with a yellow marking and a black handgun which was used to threaten staff and customers of the Bank. 61The Crown submitted to the jury that, by reference to a comparison chart prepared by police, which was admitted as an exhibit, the red handled sledgehammer and the crow bar with a yellow sticker located in the silver Subaru on 21 August 2009, were identical with those weapons used at Lisarow. 62The two men were seen escaping from the Bendigo Bank at Lisarow in a silver Subaru in which a third man was waiting as a get away driver. The silver Subaru carried registration plates, which it was agreed at the trial, had been stolen the previous day. They were different from the stolen registration plates on the silver Subaru in which the applicant was a passenger on 21 October 2007. 63The Crown presented mobile phone records to the jury of the applicant's mobile phone service. Although the relevant phone number was subscribed in the name of "Therese Haynes of Waterloo", it was the Crown case that because the number appeared on the contact lists of each of the three men arrested with the applicant on 21 August 2009, and also the applicant's mother, that it was the applicant's phone number. 64A phone call was made from that phone number after the armed robbery of the Bendigo Bank at about 5.26pm, which bounced off a mobile phone tower at The Entrance on the Central Coast.

Armed robbery of the Greater Building Society at Lake Haven 65The Crown case, which was presented to the jury, with respect to this armed robbery was that at about 4.45pm on 10 August 2009, three men entered the Greater Building Society at Lake Haven armed respectively with a sledgehammer, a handgun and a crowbar. Each of the men wore either a balaclava or a ski mask. 66According to the CCTV footage, the sledgehammer was used to smash a glass door separating the customer area from the tellers' area and the handgun and crowbar were used to threaten staff and customers. 67The CCTV footage showed that the sledgehammer had a red handle and that the crowbar, which was blue, had a yellow marking or sticker on it. Police prepared, and the Crown tendered, comparison charts in respect of the red handled sledgehammer, the blue crowbar with the yellow sticker located in the silver Subaru on 21 August 2009, which highlighted similarities with the items shown on the CCTV footage of this robbery. 68It was the Crown case that one of the offenders on the CCTV footage was Mr Taotala, who was wearing a blue jumper with distinctive trim, and who was carrying, and wielding, the sledgehammer. In order to identify Mr Taotala, the Crown also relied upon a comparison between the CCTV footage at the Building Society and the surveillance footage taken on 21 August 2009. Similarities in the jumper being worn on the two occasions were noted by the Crown. 69The offender shown on the CCTV footage carrying the handgun, which the Crown submitted to the jury was probably the applicant, was a person wearing a long-sleeved top with green and dark coloured horizontal stripes. Two eyewitnesses gave evidence that, by observation through the eyeholes of the balaclava, this offender had brown or dark eyes with olive or dark coloured skin. Another eyewitness, based on the offender's manner of speaking, expressed the view that the offender was of Lebanese descent. He was described by the eyewitnesses as "athletically built", weighing about 85-90kg, "agile", "thin" and at least taller than 5'9" and up to 6'2", that is, 176cm - 188cm. 70The third offender carrying the crowbar, who was seen on the CCTV footage wearing dark clothing, was described by one eyewitness as athletically built, like the other offenders and of similar height. 71Again, as with Mr Taotala, the Crown submitted to the jury that it could compare the CCTV footage of the three men in the armed robbery with the surveillance footage of 21 August 2009, and compare the height, build and profile of the applicant with the physical features of the offender with the handgun. The Crown submitted that the jury should infer that the offender with the handgun at the Greater Building Society at Lake Haven was the applicant. 72The evidence suggested that the three men who entered the Greater Building Society escaped from the scene in a silver, sporty, apparently new, motor vehicle. It was the Crown case that this was the silver Subaru in which the applicant was ultimately arrested. 73The Crown tendered evidence of the phone records which showed that the applicant made a number of calls both prior to the armed robbery, the last of which was at 2.46pm and following the armed robbery, the first of which was at 5.37pm, which bounced off mobile phone towers at Morisset and Wyee on the Central Coast. As well, the telephone records showed that in the period between the first armed robbery at Lisarow and the day upon which the applicant was arrested, the applicant made 40 phone calls and sent 14 text messages to Mr King's mobile phone.

The applicant's case 74Although the applicant did not give evidence at the trial, his counsel established a number of facts through cross-examination of the Crown witnesses. Those facts included: (a)at all times from 21 August 2009, the applicant denied being involved in either of the two armed robberies; (b)the applicant, whilst he may have been in the Central Coast area on the days of the armed robbery, because of the telephone records, was also in the Central Coast area on a number of other days in July 2009; (c)whilst the telephone records established a connection between the applicant and Mr King, they did not establish any connection between the applicant and Mr Taotala. There was a strong connection between Mr King and Mr Taotala established from mobile phone records. (d)the DNA evidence which established the applicant's DNA on the ski mask and balaclava found in the backpack in the motor vehicle, and his DNA on the nearside door handle of the motor vehicle, was entirely consistent with the fact, which was established by other means, that the applicant was in the motor vehicle on 21 August 2009, and that he had pleaded guilty to charges which were consistent with the finding of balaclava and the ski mask; (e)there were significant differences between the two armed robberies. There were only three people involved in the armed robbery at Lisarow as opposed to four at Lake Haven. As well, the third person identified as the driver at Lisarow, was clearly not the applicant. In addition there was evidence connecting a Mr Fadi Nabouche to the purchase of the sledgehammer left behind at the Lisarow scene. Mr Nabouche was related to Mr King; (f)the replica revolver found in the silver Subaru was not the handgun used in the robberies at Lisarow and Lake Haven, it was of an entirely different appearance.

Interlocutory judgment 75In the course of the trial, and prior to 10 November 2009, objection was foreshadowed by counsel for the applicant to the admission of evidence, as either tendency or coincidence evidence, of the arrest and circumstances surrounding the arrest, on 21 August 2009, to prove the earlier two robberies. 76Objection was taken as well with respect to other counts in the indictment, but these objections, which were in part successful, are no longer relevant. 77On 11 November 2010, the trial Judge delivered judgment in which she held that there was no basis for the admissibility of the evidence as tendency evidence, but that the evidence could be admitted as coincidence evidence. 78In her judgment, her Honour noted that the Crown sought to lead evidence, as coincidence evidence, pursuant to s 98(1) of the Evidence Act 1995, of: (a)the facts, matters and circumstances surrounding the applicant's arrest on 21 August 2009, including that the vehicle in which he was arrested was a stolen silver Subaru, he was in possession of an imitation revolver, gloves, balaclava, a red handled sledgehammer, a blue crowbar and a machete; (b)that on 31 July 2009, the Bendigo Bank at Lisarow was robbed in circumstances where offenders were wearing gloves and a balaclava, one was carrying a red handled sledgehammer and the other was carrying a blue crowbar with a yellow sticker on it and a pistol, and that the robbers escaped in a silver Subaru with stolen number plates; and (c)on 10 August 2009, the Greater Building Society at Lake Haven was robbed by three men wearing gloves and balaclavas, one was carrying a red handled sledgehammer, one carrying a blue crowbar with a yellow sticker and one carrying a pistol. The armed robbers also escaped in a silver Subaru which was carrying stolen registration plates. 79In her judgment her Honour noted that in accordance with s 98 of the Evidence Act, she needed to be satisfied that appropriate notice had been given. There was no issue about this matter. Secondly, she noted that she needed to be satisfied that the evidence would have significant probative value. Her Honour then noted that s 101 of the Evidence Act, required her to determine whether the probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant. 80Her Honour found that the evidence had significant probative value. She found that evidence would, as counsel for the applicant had submitted, also have a prejudicial effect on the accused. Her Honour then weighed up the balance between the probative value and the prejudicial effect of the evidence and concluded in the following terms: "There is no doubt that placing the evidence of the accused's other criminal activity before the jury will have a prejudicial effect on the accused, but I consider that the probative value of the evidence does substantially outweigh the prejudicial effect it may have on the accused, particularly as I will direct the jury that: (i) they must only use the evidence that the accused committed counts [relating to his arrest on 21 August 2009] to determine whether the circumstances involving in the commission of those acts are so similar to the acts that the Crown says amount to the offences alleged, that they would conclude that the accused committed the offences charged; and (ii) that it would be completely wrong to reason that the because the accused has committed one crime, he is therefore generally a person of bad character and for that reason must have committed the offences."

Jury directions - Grounds 1 and 2 81As I have earlier set out, the grounds of appeal relied upon by the applicant in his filed notice, it is unnecessary to set them out again. It appears in Grounds 1 and 2, that the applicant complains that the trial Judge failed to give a proper direction to the jury about circumstantial evidence and the use which might be made of coincidence evidence. 82The Judge's summing up to the jury on circumstantial evidence, the process of drawing inferences, and the proper use of coincidence evidence, were directions of law which, in their terms, complied appropriately with the relevant authorities, and did not misstate the law. 83On the contrary, they correctly stated the law. They were correct. 84It is to be recalled that the summing up was delivered on two separate occasions. So far as the directions of law were concerned, they were repeated in substantially identical terms. 85The applicant was represented at the trial by experienced counsel. It is relevant to note that at the conclusion of each summing up delivered by her Honour, counsel for the applicant did not object to the terms of her Honour's summing up. He did not submit that the summing up gave incorrect directions of law, nor did he seek any redirection of the jury. 86I can detect no error of law in her Honour's summing up on these directions, and accordingly would not uphold any appeal on the basis of these Grounds.

Biometrics - Ground 3 87The applicant complains that although after his arrest police undertook biometric measurement of his height, these were not presented to the Court. 88The first witness called by the Crown was Detective Senior Constable Kendall. He was the officer in charge of the investigation into the armed robberies at Lisarow and Lake Haven, and also was in charge of the arrest of the applicant on 21 August 2009. 89In evidence Det Const. Kendall indicated that because the applicant was taken from the scene of the arrest to hospital, he did not accompany the other three men who were arrested to the police station. 90The Crown did not tender in chief any evidence of any detail which related to the biometric features of any of the three men taken back to the police station, nor did they tender in chief any evidence of the biometric measurements which the applicant claims were taken of him. The height measurements of the four men arrested on 21 October 2009, were not relied upon by the Crown. 91It is clear that there was, however, evidence of the fact that biometric measurements were taken at the police station by Acting Sergeant Leto. Evidence of that fact was elicited from Detective Senior Constable Hennessy in cross-examination by the counsel for the applicant. 92After Detective Senior Constable Hennessey's evidence was complete, and when Acting Sergeant Lester gave evidence, the Crown elicited from him that he conducted forensic procedures and biometric measurements on each of the three people in the Subaru at the time of they returned to the police station after their arrest. Again, the precise measurements were not elicited by the Crown. 93However, in cross-examination counsel for the applicant elicited evidence that Mr Taotala was 181.5cm tall, Mr Brough was 176cm tall and Mr King was 179cm tall. There was no evidence elicited in the course of the evidence of either police officer that any biometric measurements were taken of the applicant. 94In submission to the jury, the Crown did not rely upon these measurements in any way. No reference was made to them by counsel for the applicant and they were not mentioned in the summing up. 95If there were biometric measurements carried out upon the applicant, as this ground of appeal appears to assert, then that fact would have been known to the applicant, and to his counsel. No evidence was elicited of those facts in cross-examination, and no evidence was tendered to the jury of those facts. 96In all of the circumstances, there is no basis for any complaint with respect to the conduct of the trial by reason of the asserted inappropriateness of the Crown failing to lead any evidence of the applicant's height. 97I would not uphold this ground of appeal.

Fake pistol and ski mask - Ground 4 98The applicant seems to submit that the case against him could not succeed because the revolver with which he was found was not identical with the earlier robberies, and as well, only balaclavas had been used in the earlier robberies, whereas he was found in possession of a ski mask. 99It was clear that the Crown did not contend that the replica revolver found on the applicant at the time of his arrest on 21 August 2009, was the same as the weapon used in the two armed robberies at Lisarow and Lake Haven. 100As well, the applicant's counsel drew attention to and strongly highlighted, the differences between the weapon with which the applicant was found on 21 August 2009, and the weapon used in the two armed robberies. He submitted to the jury that this was a significant difference between the events, and was a feature to which they should have careful regard for the purpose of rejecting the Crown's case. He submitted to the jury (T.377): "The toy or replica pistol, which you've got the report on that was tendered through Detective Kendall, which was in [the applicant's] possession - and he has pleaded to possession of that - that's not the same weapon said to have been used in the other two robberies. It had recently been spray painted and it was a revolver type weapon, and you'll remember the description of the weapon at the Lake Haven robbery and that being: square, looking like a police-issue handgun." 101The relevance to the Crown case of the fact of the applicant being in possession of a handgun on 21 August 2009, was not that it was the same weapon which had been used in the Lisarow and Lake Haven robberies. Rather, the Crown case was that in the robbery which was intended to be undertaken on 21 August 2009, as in the two previous robberies, they had each been conducted, or were to be conducted, by the participants using a red handled sledgehammer, a blue crowbar with a yellow label and a handgun. 102The significance of the issue of whether what was being worn during the robberies, that is, either a ski mask or a balaclava, is somewhat elusive. The applicant's backpack on 21 August 2009, contained both a ski mask and a balaclava. Either could be used to cover a face and conceal an identity. The faces of the robbers in the two armed robberies were covered over by what appears to be a balaclava. But nothing turned on whether it was a balaclava or a ski mask. What was relevant, and a circumstance to which it was proper for the jury to have regard, was that on each occasion the faces of the robbers were, or were intended to be, fully covered. 103I can detect no error of a kind sufficient to give rise to any successful appeal with respect to this ground. 104The balance of the grounds relate to arguments about the facts. In short, they point out that there was insufficient connection between the fact that the applicant was found in the stolen car on 21 August 2009 and the previous robberies. It is convenient to consider these matters of fact as forming a basis for a ground of appeal, which is earlier referred to obliquely, and that is, whether in all the circumstances, the conviction is unreasonable, or cannot be supported, having regard to all the evidence: s 6(1) Criminal Appeal Act 1912.

Unreasonable or unsupported verdict 105When this Court considers whether or not the verdict of a jury was unreasonable, as that term is used in s 6(1) of the Criminal Appeal Act, it is necessary for the Court to make its own independent assessment of the evidence at the trial, both as to its sufficiency and quality: SKA v R [2011] HCA 13; (2011) 243 CLR 400 at [14] per French CJ, Gummow and Kiefel JJ; Morris v R [1987] HCA 50; (1987) 163 CLR 454 at [19]-[20] per Deane, Toohey and Gaudron JJ. 106In M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at [6]: "In reaching such a conclusion, the Court does not consider as a question of law whether there is evidence to support the verdict... Questions of law are separately dealt with by s 6(1). The question is one of fact which the Court must decide by making its own independent assessment of the evidence ... and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. " 107Any assessment of an appeal pursuant to this Ground, reflects the starting point that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses: M at [7] per Mason CJ, Deane, Dawson and Toohey JJ. As their Honours said at [9]: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal, that the Court may conclude that no miscarriage of justice occurred." 108The case against the applicant brought by the Crown was a circumstantial one. The appropriate approach to whether a verdict is unreasonable in such a case was discussed by this Court in Wood v R [2012] NSWCCA 21 at [52] where McClellan CJ at CL, with whom Latham and Rothman JJ agreed, said: "52 When, as here, the case against the accused is entirely or substantially circumstantial, 'the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ) citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252. That statement of principle is uncontroversial. It is really 'no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt': Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502 (Mason CJ, Dawson and Toohey JJ) quoting Shepherd at 578 (Dawson J). 53 At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment 'indispensable' intermediate facts ..., it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that 'one piece of evidence ... resolves doubts as to another' (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA)." 109When the police stopped the stolen silver Subaru sedan on 21 August 2009, the evidence was overwhelming that the four men in the vehicle were on their way to commit an armed robbery at the premises of a credit union at North Ryde. Inside the car each of the participants had, or had access to, a balaclava or ski mask to cover their face and protect their identity. The tools to give effect to the robbery were the replica handgun, of which the applicant was in possession, a red handled sledgehammer and a blue crowbar with a yellow sticker. 110There was evidence of significant contact between some, but not all, of the four men in the motor vehicle leading up to that date. As well, the four were seen intentionally together and getting into the motor vehicle shortly before it was stopped by police. 111The vehicle was bearing stolen registration plates, which it was accepted, had been stolen from another silver Subaru vehicle. 112Two of the occupants of the vehicle, Mr King and Mr Taotala, pleaded guilty to carrying out the armed robbery at the Greater Building Society at Lake Haven. The features of that armed robbery were that it was carried out by four men whose faces were covered, three weapons were used, namely, a red handled sledgehammer, a blue crowbar with a yellow sticker and a handgun, a fourth man acted as the driver of the getaway vehicle, which was a stolen silver Subaru sedan bearing stolen registration plates. Although these were not the same as those on the car on the day of the arrest, they also had been stolen from a silver Subaru sedan. 113There was evidence from the mobile telephone records that the applicant was in the Central Coast area and using his mobile telephone, where Lake Haven is located, before and after the robbery of the Greater Building Society at Lake Haven, but not during the period when the robbery was in progress. 114The CCTV footage of that robbery, and the surveillance footage of the applicant on 21 August 2009, albeit not as extensive as of some of the other individuals arrested on that day, nevertheless enabled a comparison to be made as to whether there were any similarities or dissimilarities between the individuals involved in the Lake Haven robbery, and those arrested on 21 August 2009. 115Allowing for each of the facts established in cross-examination by counsel for the applicant, to which I have earlier referred, I am of the view that there is no reasonable hypothesis which is consistent with the applicant not being involved in the armed robbery at Lake Haven, having regard to all of the evidence in the case. The facts strongly pointed to an identity in the numbers of robbers, the weapons used, and the get away car being used with false registration plates. These were not mere chance occurrences. They did not occur without a relationship between them. 116In other words, I am of the view that this was a very strong case against the applicant. Not only was it open to the jury to convict but I am not left in any doubt at all of the applicant's guilt of the offence of the armed robbery at Lake Haven. 117I am of the opinion that the verdict of the jury was not unreasonable, nor was it unsupported by the evidence. On the contrary, it was a strong case, one about which I have no doubt as to the applicant's guilt. 118I would not uphold any ground of appeal upon the basis that the jury's verdict was unreasonable or unsupported by the evidence: s 6(1) Criminal Appeal Act.

Orders 119I would propose the following orders: (1)Extend time for the filing of an application for leave to appeal to 23 March 2012. (2)Grant leave to appeal. (3)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2014