Youkhanis v R

Court of Criminal Appeal (NSW)|2014-10-17|Before: Gleeson JA, Fullerton J, Garling J

Judgment 1GLEESON JA: I agree with Garling J. 2FULLERTON J: I agree Garling J. 3GARLING J: The applicant was convicted by a jury on 13 February 2012, of an offence contrary to s 94 of the Crimes Act 1900 in that, on 13 February 2010, he stole a sum of money from the person of Mr Mohit Sharma. 4The conviction was entered by Ashford DCJ after the jury returned its verdict. On 4 April 2012, her Honour sentenced the applicant to a term of imprisonment of 18 months which was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. 5Over 18 months later, after the expiry of the sentence, the applicant filed a Notice of Application for an extension of time within which to lodge a Notice of Appeal. 6The basis of the application for an extension of time was that the delay was: "... due to the complex nature of this matter and the delay in receiving transcripts and exhibit material. The appellant is a person of prior good character (excluding the conviction in this case). He has a desire and wish to study law. A conviction for a matter of this kind would disqualify him from practicing law." 7The Crown did not oppose the grant of an extension of time and it is appropriate in my view, and I would propose, that an extension of time be granted. 8I will hereafter refer to Mr Youkhanis, the applicant, as the appellant.

Notice of Appeal 9The Notice of Appeal seeks only to address matters relating to conviction. There were four grounds of appeal. 10On 4 September 2014, when the matter came before the Court for hearing, senior counsel for the appellant indicated that the appellant no longer pressed Grounds 3 and 4. Accordingly, it is only necessary to consider the first two Grounds. 11They were in the following form: "1. That the evidence of the main prosecution witness lacked probative force to the extent that 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. 2. The appellant's conviction in relation to count 2 is, in the light of his acquittal in respect of count 1, unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912."

The Original Indictment 12When the indictment was presented before Ashford DCJ and a jury on 30 January 2012, the Director of Public Prosecutions charged the appellant with two counts. 13Count 1 on the Indictment was the offence of robbery contrary to s 94 of the Crimes Act 1900, and Count 2, which was expressed to be in the alternative to Count 1, was of the offence of stealing from the person, which is also an offence contrary to s 94 of the Crimes Act. 14The trial commenced on 30 January 2012, and the jury retired to consider its verdict on 13 February 2012. It returned later that day and found the accused not guilty of Count 1, namely, robbery, but guilty of Count 2, namely, stealing from the person. 15In light of the grounds of appeal, it is necessary to review the evidence in the case presented by both parties at the trial.

Crown Case 16Prior to the events in question, and for a period of about 18 months up until the end of October 2009, the appellant supplied to Mr Mohit Sharma, who was the victim of the offences for which the appellant was indicted, a number of Apple iPhones which Mr Sharma would then sell on eBay for a modest profit. For the purpose of engaging in those modest commercial transactions, Mr Sharma would contact the appellant on a mobile telephone number which ended in 945. (It is convenient to refer to the mobile telephone numbers relevant to the trial by using their last three digits.) 17Some months after that initial arrangement ceased, during which period no further contact was made, the appellant made contact with Mr Sharma on 27 December 2009, by sending him a text message from a mobile telephone number 969. The appellant then told Mr Sharma that he could acquire a large number of iPhones at a very good price. All contact with respect to this new transaction was carried out by the appellant, either using the 969 number, or else by using a mobile phone with a blocked number. 18It was the Crown case that in early 2010, Mr Sharma agreed to buy 75 iPhones from the appellant at $600 per handset, making a total cost of $45,000. This number was later increased to 100 handsets. The appellant and Mr Sharma arranged to meet on the evening of 12 February 2010 to complete the transaction. They eventually met on that evening at about 11pm. 19It was the Crown case that Mr Sharma arrived at the address which the appellant had given him, the appellant got into his car and directed him to a second location which was at the end of a poorly lit cul-de-sac near to a park in the suburb of Cecil Hills. 20It was the Crown case that during the drive the appellant made four calls on Mr Sharma's phone to a mobile phone number ending in 700. The appellant said to Mr Sharma that the people they were meeting had guns and were "dangerous". The appellant demanded to see the money. Mr Sharma showed him a bag which Mr Sharma had placed in the back seat of his car containing $45,000. He did not show him the balance of the money which was also in another bag in the back seat of the car. 21It was the Crown case that at the end location in the poorly lit cul-de-sac at the edge of a park in Cecil Hills, the appellant stepped out of Mr Sharma's vehicle, took the money bag containing $45,000 from the back seat of the car and ran off into the park. 22A central feature of the Crown's case was that the appellant had, whilst at his place of employment at the Vodafone store in Mt Druitt, obtained two sim cards that were later activated as the mobile phone numbers 969 and 700. In other words, these two numbers were obtained and used by the appellant for his purposes, including this transaction, and were not unknown to him, as he claimed.

Appellant's Case 23It was the appellant's case at trial that he had had no contact whatsoever with Mr Sharma since they had last spoken in late 2009. 24The appellant said that he knew nothing of the two telephone numbers ending 969 and 700; that he did not send a text message to Mr Sharma in December 2009; he did not tell Mr Sharma that he could access 100 iPhones at a good price; that he did not make arrangements to meet Mr Sharma on 12 February 2010; and that he did not take the bag of money containing the $45,000, from Mr Sharma's car and run off with it. 25Shortly put, it was the appellant's case that he knew nothing about the allegations, but that Mr Sharma had serious financial difficulties related to his unsuccessful gambling activities, had kept the money for himself,had a motive to lie, and had lied about all of these events.

Evidence at Trial 26It will be obvious that in a trial such as this, when both Mr Sharma and the appellant gave conflicting evidence, that it was necessary for the jury to carefully weigh up the versions given by both Mr Sharma and the appellant, make a careful assessment of their credibility, and take into account and weigh in the balance all of the objective facts which were established, including those established by the circumstantial evidence. 27The Crown argued that Mr Sharma's account ought to be substantially accepted, and submitted to the jury that it was corroborated in material respects, by independent and objective evidence. 28The appellant's case to the jury depended upon the evidence that he gave to the jury, and the extensive attack which he made on Mr Sharma's credibility. As well, the appellant relied upon the fact that he was of prior good character, to which a number of witnesses attested and were not challenged.

Evidence of Mr Mohit Sharma 29Mr Sharma gave evidence of the previous dealings between himself and the appellant. The detail of that is contextual only. 30Mr Sharma said that in December 2009, whilst he was in India visiting his family, he received a text message from a mobile phone number ending in 969. At that time he did not recognise the number, but the message said that it was from the appellant. Mr Sharma knew the appellant by the name of Garmin, rather than Ramin. 31When Mr Sharma returned from India, he rang the 969 number and spoke to the appellant. He recognised the appellant's voice. The number ending 969 was thereafter used by Mr Sharma to send text messages to, or else telephone, the appellant. Mr Sharma said that the appellant had told him that he had a large quantity of phones for sale at a really good price. He told the appellant that he would look into it and consider it. 32In January 2010, Mr Sharma agreed to buy 100 handsets from the appellant. Mr Sharma made arrangements to sell 75 of the handsets to a buyer in America and the balance of the 25 handsets to his close friend, Mr Chiraag Tulsiani. 33The appellant told Mr Sharma that he wanted to be paid in cash. Mr Sharma made arrangements for the American buyer to transfer the appropriate sum of money to his account. On 12 February 2010, which was the day Mr Sharma's American contact had transferred money into his account, he attended at the CBA Ingleburn branch and withdrew $45,000 in $50 and $100 notes. 34At that time, the appellant was using a blocked number to contact Mr Sharma. There was a deal of contact on that evening according to Mr Sharma, the effect of which was that the original meeting which was due to occur at 8pm was delayed until after 11pm. 35In preparation for the meeting, Mr Sharma's friend, Chiraag Tulsiani, came to his house at about 9pm and gave him a total of $16,000 for the 25 handsets which he was purchasing. This money was in two envelopes and was placed on the backseat of Mr Sharma's car. At that stage Mr Sharma put the $45,000, which was in a separate bag provided by the Bank, on the backseat of the car as well. 36According to Mr Sharma's evidence, the appellant asked to be picked up at his friend's house and taken to another place where a person in possession of the telephones would meet them. 37Mr Sharma picked up the appellant in his Ford Falcon motor vehicle, which had the numberplate "Mohit" from an address in Wetherill Park that he had been given. When he picked up the appellant, Mr Sharma said that, although it was February, the appellant was wearing a black hoodie jacket, and black pants with small redlines. 38The number plate was of some significance because the appellant denied knowing that the first name of Mr Sharma was Mohit, although he agreed that he had seen the number plate on many occasions prior to February 2010. 39The description of the clothes was also of some significance in the appellant's case because he denied owning any such clothes, and his sister who gave evidence, said that she had not seen such clothes being worn by the appellant. The clothes were also said to be inappropriate for a warm month such as February. 40Thereafter they set off for the alleged rendezvous. A precise address was not given, but Mr Sharma said that the appellant gave him directions as to where to go. Mr Sharma said that during the course of the journey the appellant borrowed his telephone and, so far as it appeared to Mr Sharma, called others on a number of occasions. 41About half way through the journey between Wetherill Park and Cecil Hill, the appellant asked Mr Sharma to stop the car saying that he wanted to search him in case he had "any weapons or any gun or anything like that". 42The appellant went on to describe to Mr Sharma that the person with the telephones that they were meeting was "kind of dangerous". There was further discussion about a search. Ultimately, the search did not go ahead because the appellant said to Mr Sharma "just show me the cash then I'll not search you". Mr Sharma showed him the cash and, according to him, the appellant said "Okay, no worries". 43This incident caused Mr Sharma to be apprehensive and uncomfortable. He was reassured by the appellant and was directed into a cul-de-sac and was told where to stop with the bonnet of his car facing towards a house. The appellant told Mr Sharma that it was his house and they would have wait for the other individual who was bringing the telephones. 44Whilst they were waiting in the cul-de-sac, the appellant used Mr Sharma's phone on two occasions. During the last of these occasions, the appellant became quite angry and was apparently abusing the person at the other end of the telephone. 45According to Mr Sharma, when that telephone call concluded, the appellant did not speak to him. Mr Sharma asked him if the telephones were being delivered and why he had become so angry. According to Mr Sharma, the appellant did not reply until finally he said "Okay let's go into the house". 46At that time the appellant opened his door on the passenger's side of the car. By the time that Mr Sharma opened his driver's side door to get out, the appellant had opened the back passenger door, reached in with his right hand, picked up the bundle of money which he had been shown earlier and ran off with it. 47Mr Sharma tried to stop him but the appellant pushed his hand away and ran off into the park with the bundle of money and Mr Sharma's mobile telephone. 48It was dark and raining. Mr Sharma did not run into the park after the appellant. He said he did not do so because he was scared. He said he was scared because he thought someone else might be coming, and that they might shoot him. 49Mr Sharma closed the two car doors and drove his car back around the corner where there was street light and immediately called 000. The 000 operator sent the police, who took Mr Sharma to the Green Valley Police Station. 50Mr Sharma's phone records showed four calls from his mobile telephone between 11.54 pm on 12 February 2010 and 12.06 am on 13 February 2010. All four calls were to a mobile phone number ending in 700. Mr Sharma's evidence was that he did not know whose number that was. These four calls matched the calls which Mr Sharma said the appellant had made having borrowed his phone.

Other Prosecution Evidence 51According to the prosecution evidence, the number 700 was registered to a Mr Tonny Luu at 220 North Liverpool Road, Green Valley. Mr Luu gave evidence that he had lived at that address since 2009, together with his family. He said that he had been to the same high school as the appellant, and in the same year. They were friendly at school with each other, but he had not seen the appellant since they finished high school in 2007. Mr Luu denied that he knew anything of the phone number 700 and said that he had never subscribed for, nor had he ever operated, that number. 52One of the other numbers, ending in 969 and being the number upon which Mr Sharma contacted the appellant during January, was registered to Mr Ali Scaf. It was also registered on the basis that Mr Scaf lived at 220 North Liverpool Road, Green Valley. Mr Luu, who had lived there for a significant period of time, said that he did not know Mr Scaf and Mr Scaf had never lived at his address in Green Valley. 53Evidence was given by an analyst at Vodafone, Mr J Santos, that the two numbers ending in 969 and 700, which were registered respectively to Mr Scaf and Mr Luu, had been registered at the Vodafone store at Mt Druitt where the appellant worked. His evidence also established that a number of calls from the number ending in 969 were made through a call tower at Market Town Mt Druitt at a time when the appellant was at work at the Mt Druitt store. 54A police investigator gave evidence that no DNA or fingerprints of the appellant were recovered from the motor vehicle. He also gave evidence that, despite extensive enquiries, he could not identify a person by the name of Ali Scaf having the driver's licence number or the date of birth provided on the Vodafone records. It was the Crown's case that Mr Ali Scaf was an entirely false name and a fictitious person. 55Mr Wayne Hancock gave evidence from his perspective as a fraud investigation manager employed by Vodafone. With respect to the number ending in 969, he gave evidence that the account had been created with the name of Ali Scaf at the Vodafone store at Mt Druitt at a time and on a day when the appellant was at work. He also gave evidence that the records showed that the entries were done in the Mt Druitt store by an employee who entered to the store dealer's code to access the records and create the entry in the fictitious name of Ali Scaf. 56Mr Chiraag Tulsiani also gave evidence. He gave evidence that he had known Mr Sharma for some period of time and was friendly with him. He said that Mr Sharma used to supply him with iPhones for which he usually paid in cash. He said that in February 2010 Mr Sharma told him he was sourcing 100 iPhones from the appellant. Mr Tulsiani agreed to buy 25 of the iPhones. 57He said on 12 February 2010, he withdrew $10,000 in cash from an ANZ account and the rest from his Westpac account. He said the cash, which totalled $16,000 was contained in two envelopes, and in each envelope there was a bank withdrawal slip. He wrapped the two envelopes in a yellow plastic bag and took the money to Mr Sharma's house. He was later informed of what had occurred. He attended the Green Valley Police Station and retrieved his money which was still in the possession of Mr Sharma. 58Of significance to the appellant, although led in the Crown case, was the evidence of Mr Graham Stephens, the regulatory affairs manager of the Star City Casino. He proved that Mr Sharma was a member of the Casino Rewards Program. It was the appellant's case that Mr Sharma had a gambling problem, and that the money which the appellant was said to have stolen had in fact in been used by Mr Sharma to pay gambling debts. 59Mr Stephens said that Mr Sharma had become a member of the Rewards Program in October 2008, but across the lifetime of his membership there had been a loss of $31,393. His evidence was that at the time of the events in question, Mr Sharma did not owe any money to the casino.

Evidence for the Appellant 60As earlier indicated, the appellant gave evidence. He agreed that he had met and had dealings with Mr Sharma up until about November 2009. He said that the last text communication he had with Mr Sharma was on 1 November 2009, and that he had not seen or spoken to him or sent him any text messages since that time. 61He said that he had had no contact with Mr Sharma during 2010; that he did not know anyone by the name of Ali Scaf; and he did not know anything about the mobile phone number ending 969. 62He denied having anything to do with the creation of the accounts for the mobile phone number ending 969 and the mobile phone number ending 700 which was registered in the name of Mr Tonny Luu. He agreed that he knew Mr Luu, but that he had not seen him since completing his Higher School Certificate. 63He agreed that he received an email on 21 March 2010 from Mr Sharma, which had questioned him about what had happened and had sought the return of the money, to which he had not responded, but said that he did not read it until after he had been questioned about the matter by the police. 64The appellant said that since he was not charged until late September 2010, he was at that stage unable to remember where he was on the evening of 12 February 2010. 65He denied owning clothing of the kind described by Mr Sharma. 66The appellant was cross-examined about a number of things. With respect to the mobile phone number 969, it was put to him that the activity on that number through the Market Town Mt Druitt tower coincided with his working hours at Vodafone at Mt Druitt, and the activity on that number on towers in other locations coincided with him having left work. 67The appellant agreed that on 2 February 2010, for a period of one second, his own mobile telephone, number 945, called the 969 number of which he said he had no knowledge. He agreed that the phone records showed that the call went through the Market Town Mt Druitt tower and the employment records showed he was at work at that time. The only explanation that he could offer was that it was perhaps a work-related call. 68The appellant completely denied any of the facts, matters and circumstances surrounding the events giving rise to the loss of cash described by Mr Sharma on the evening in question. In particular, he denied sending the text message to Mr Sharma on 27 December 2009 which put the events into train (on the account of Mr Sharma). Ultimately, that denial could not be maintained because of the production of records which showed the existence of such a message. 69Shortly put the appellant denied any involvement in the offence whatsoever. 70Three witnesses were called in the appellant's case, and each gave evidence of his good character.

Exhibits 71There was significant documentary evidence tendered by the Crown dealing with copies of text messages which Mr Sharma said that he had received; multiple telephone records of various numbers; and accounts for various telephone numbers.

Ground 2: Inconsistent Verdicts 72It is convenient to commence an analysis of the appeal by reference to the second ground of appeal. 73The appellant submitted that the fact that the jury acquitted him on the first count of robbery but convicted him of stealing from the person, constituted an inconsistent verdict because the fact that the jury had acquitted the appellant on Count 1 meant that they could not have been satisfied beyond reasonable doubt about the credibility of the evidence of Mr Sharma, and accordingly, the conviction on Count 2 was inconsistent with that approach. 74There were a number of submissions made by senior counsel for the appellant. First, he submitted that Mr Sharma was the critical witness in the Crown case whose evidence underpinned the whole of the Crown case with respect to both Counts 1 and 2. Secondly, he submitted that the evidence on Counts 1 and 2 was essentially the same and that, in order to acquit on one count and convict on the other, the jury was relying upon the same evidence of Mr Sharma as to the time, the place and the circumstances with respect to each Count. 75He next submitted that there had been a substantial attack on Mr Sharma's credibility, and in particular regarding his reliability and truthfulness, which must have borne fruit because the jury acquitted the appellant on Count 1 of the Indictment. Accordingly, he submitted that the jury could not have been satisfied beyond reasonable doubt of the veracity and accuracy of the evidence of Mr Sharma, and hence should have acquitted on Count 2. 76Finally, he submitted that the only rational explanation for the guilty verdict on Count 2, was a compromise by the jury: "... perhaps taking into account the excellent character of the accused, his youth and matters of that kind." 77The Crown submitted that there was no inconsistency between the verdicts which the jury returned on Counts 1 and 2. 78The Crown submitted that the obvious logical and rational explanation, which stood apart from any assessment of Mr Sharma's credibility, was that the jury was not satisfied beyond reasonable doubt about an ingredient of the offence charged in Count 1, which was not an ingredient of the offence charged in Count 2. 79The Crown submitted that in order to prove the offence of robbery in Count 1, it was necessary for the Crown to establish that a threat or offer of violence, putting the victim in fear, coincided with the taking of the money. The Crown submitted that such an element is not necessary for the proof of the alternative charge of stealing from the person. 80The Crown noted that before the jury, the Crown case relied upon a threat or offer of violence, namely that which emanated from the appellant when he made a statement to Mr Sharma about a threat of violence that may in the future be coming from a third person, namely the unidentified supplier of the telephones, who was allegedly coming to the meeting in the cul-de-sac. 81The Crown submitted that the jury may well have been satisfied that Mr Sharma was frightened by the appellant's revelation about the potential danger, but it may not have been satisfied beyond reasonable doubt that such revelation constituted a threat or offer of violence or, if it did constitute such a threat or offer, that it was one made by the appellant or, if both of those matters were established, that the threat or offer of violence coincided with, or else was reasonably contemporaneous with, the taking of the money. 82The Crown submitted that nothing in that process of reasoning involves an assessment of the credit or believability of Mr Sharma, and thus it was open to the jury to find the appellant not guilty of the first count, but guilty on the second count.

Discernment 83In MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366, Gaudron, Gummow and Kirby JJ considered the question of inconsistent verdicts. They said: "Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness." At 367, their Honours said: "... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt." (References omitted) 84This decision was cited in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [6]-[8]. In Markuleski at [40], the judgment of McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 was also cited. In Osland, McHugh J said this at [120]-[121]: "When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory. In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. ... An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues, evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury." (References omitted) 85The authorities call attention to the facts, issues and directions in each particular case. As Spigelman CJ said in Markuleski at [73]-[74]: "The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant's evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case. It is not, however, easy to formulate principles as to when a jury should conclude that a reasonable doubt on one count, notwithstanding the complainant's evidence on that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant." 86It is obvious that the presence or absence of corroboration may be a relevant point of differentiation between verdicts on individual counts. After all, in many cases juries are given strong warnings about the dangers of acting on the uncorroborated evidence of a complainant. 87A court considering a question of inconsistent verdicts needs to be cautious before concluding that a jury (as a whole) has acted contrary to its clearly explained duty. Particularly where there is evidence to support the verdict, there is a need for great caution in presuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances and a contrary conclusion in others: Still v R [2010] NSWCCA 131 at [60] per Johnson J, Basten JA and Rothman J agreeing. 88The offences with which the appellant was charged are both contrary to s 94 of the Crimes Act, and both involve each of the elements of larceny, namely that the property must be taken from the person or the immediate personal care of another with the intention of permanently depriving the owner of that money. 89However, for robbery, which was the offence charged in Count 1, there must be violence, or a threat or offer of violence, which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken: R v Foster (1995) 78 A Crim R 517. Thus, the actual or threatened application of force must precede the taking of the goods and be reasonably proximate to it. 90The directions given to the jury by the trial Judge on the elements of the charge were concise. No submission was made at trial seeking further directions with respect to the elements of the offence. It was not submitted on appeal that the directions were inaccurate or inadequate. 91In giving her directions, the trial judge said this: "In respect of the first count the Crown must satisfy you beyond reasonable doubt that the accused took the property of Mohit Sharma, in this case money, with the intention of depriving Mohit Sharma, the owner of the money, of it permanently. ... The taking of the money, that is the property, has to be accompanied by the victim being put in fear by an offer of violence." 92Her Honour went on to summarise the evidence to which reference has been made earlier about the events which occurred on the way to where the vehicle stopped. She also drew the jury's attention to what occurred at the time the money was taken. She said, referring to the events in the cul-de-sac this: "... when the call was finished Sharma said [the appellant] exited the motor vehicle, opened the back door and took the bundle of cash in a bag which Sharma had previously shown him and then ran to the park. Sharma said he was scared as he thought someone might be coming who was going to shoot him or something. ..." 93Her Honour went on to deal with the alternative charge set out in Count 2. She said: "Now the alternative count, if you are not satisfied the Crown has proved beyond reasonable doubt all of those elements of count 1, then you must return a verdict of not guilty to that charge and then you go on to look at the elements of the alternative count of stealing form the person of Mohit Sharma. The essential elements of count 2 are in essence the same as count 1 with the exception of the element of placing Mohit Sharma in fear. Thus again the property taken must belong to someone other than the accused, that is the property of Mohit Sharma and taken from him. The property, that is the money, must be taken by the accused and carried away by him with the intention of permanently depriving Mohit Sharma of the money which is of value, and the money must be taken without the consent of Mohit Sharma." 94It is clear from her Honour's concise directions that there was a significant element which differentiated the charges which the appellant was facing on each count: i.e. the element of whether or not at the time of the taking of the money, Mr Sharma was put in fear by a threat of, or an offer of, violence. 95In the particular circumstances here, there being no other person present at the time of the taking, that offer or threat of violence had to come from the appellant. 96The Crown relied upon the earlier conduct in the car as it drove towards the cul-de-sac, including the description of those coming to deliver the phones, as having put Mr Sharma in fear sufficiently at the time of the taking of the money to constitute the offence of robbery. It was open to the jury to reject that argument. In so doing, it did not have to form a view of the veracity or credibility of Mr Sharma, but rather could have logically and reasonably simply formed the view that the Crown had not proved that element of the offence beyond reasonable doubt. 97Because of that obvious difference, and because that obvious difference provides a logical and reasonable conclusion which differentiates the verdicts on the two counts, I would not be prepared to find that the verdicts were inconsistent, as the appellant submits. 98I would not be prepared to uphold this ground of appeal.

Ground 1 - Unreasonable Verdicts 99The appellant submits that the evidence of Mr Sharma was so poor and so lacking in credibility and reliability that the verdict on Count 2 was unreasonable and ought to be set aside. 100I have earlier set out at some length all of the evidence. 101There were a number of features which corroborated Mr Sharma's evidence and particular parts of it. They included: (a)his banking records which showed the withdrawal of the sum of $45,000 on the day in question; (b)the evidence of Chiraag Talsiani with respect to the withdrawal of the sum of $16,000, the placing of it into two separate envelopes, the handing over of it to Mr Sharma and the money being retrieved from Mr Sharma's car after the events in question; (c)the telephone records of Mr Sharma's mobile telephone which indicated that, at the time of the events in question, four calls were made to a number which was unknown to him, and the registered owner of which was a fictitious person, but the number was associated with the appellant; (d)the immediate complaint by Mr Sharma in telephoning 000 to report the robbery at a time when he was in his car in the vicinity of the location at which he said the robbery occurred; (e)the receipt by him in December 2009 of a text message whilst he was travelling in India, from the appellant, a fact which was ultimately not challenged. It was this message which was the start of the train of events in question, with which the appellant asserted he had no connection; (f)the record of text messages on Mr Sharma's mobile phone which was tendered and became Exhibit E, which demonstrated the unfolding of the negotiations for the purchase of the phones consistently with the account given by Mr Sharma. 102As well there was significant and probative circumstantial evidence which told against the appellant's version, and supported the Crown case. 103The circumstantial evidence with respect to the two mobile phone numbers ending in 700 and 969 which pointed to the appellant as the person who had supplied false names and registration details for those mobile services, and kept them under his control and used them for various communications in the course of the events as described by Mr Sharma, directly contradicted the appellant's account of the events. It was very powerful evidence which also supported the Crown case. 104In particular, the telephone calls made to the mobile telephone number 700, at or around the time of the events in question from Mr Sharma's phone, could only have been made by the appellant. However, he denied any involvement with the number ending in 700. 105Thus, there was a strong, albeit circumstantial, case put forward by the Crown before the jury which did not relate to the credibility of Mr Sharma, and which implicated the appellant in the commission of these offences. 106In considering a ground of appeal such as this, it is always necessary for this Court to satisfy itself by reference to the whole of the evidence, as to whether it has a reasonable doubt about the guilt of the appellant. If it does, then that is a reasonable doubt which the jury must have had: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 - 495. 107As French CJ, Gummow and Kiefel JJ said at [14] in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400: "14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: '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'." (References omitted) 108This Court always needs to keep in mind that the starting point in the determination of an application of s 6(1) of the Criminal Appeal Act is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses: see M at 493 per Mason CJ, Deane, Dawson and Toohey JJ. 109I have carefully read and given close attention to the whole of the evidence in these proceedings. I accept that there were some answers given by Mr Sharma in the course of his cross-examination which did not reflect well on his credibility. But his evidence was corroborated in material respects. On the other hand, there is reason to doubt that the appellant himself gave entirely truthful evidence, particularly when saying that he had no role in any of the events in question. 110Having carefully reflected on the whole of the evidence, I do not have any doubt at all about the guilt of the appellant. In my view the verdict on Count 2 was not unreasonable. 111There was corroborated evidence from Mr Sharma who, although he was not the best witness, nevertheless gave quite compelling evidence as to what had occurred. The appellant, who, I accept, had no obligation to give evidence and of course no obligation to prove anything, nevertheless gave evidence which, frankly, was largely unbelievable. It did not accord with the circumstantial evidence obtained by the Crown and which did not rely at all on Mr Sharma's credibility. 112I would propose that this ground of appeal be dismissed.

Summary 113I have not been persuaded by the appellant that the verdicts were inconsistent, nor that his conviction of the offence, contrary to s 94 of the Crimes Act, of stealing from the person was unreasonable. 114I would propose the following orders: (2)Leave to appeal granted. (3)Appeal dismissed.

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