A v Rigby
[2019] WASC 466
•19 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: A -v- RIGBY [2019] WASC 466
CORAM: SMITH J
HEARD: 8 OCTOBER 2019; AND BY WRITTEN SUBMISSIONS FILED ON 16 OCTOBER 2019
DELIVERED : 19 DECEMBER 2019
FILE NO/S: SJA 1084 of 2019
BETWEEN: A
Appellant
AND
PHILIP JAMES RIGBY
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P M HOGAN
File Number : PE 3683 of 2018
Catchwords:
Criminal law - Appeal against conviction - Circumstantial case - Whether evidence supported verdict of guilty - Whether the magistrate's verdict was unsafe or unsatisfactory on the evidence - Whether miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 7(a), s 7(b), s 7(c), s 401(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A Elliott & Mr H Glenister |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allami v The State of Western Australia [2013] WASCA 230
Austic v The State of Western Australia [2010] WASCA 110
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Bentley v Greaney [2016] WASC 227
Birdsall v The State of Western Australia [2019] WASCA 79
Clarke v The State of Western Australia [2018] WASCA 14
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
L v The State of Western Australia [2016] WASCA 101
Marchesano v The State of Western Australia [2017] WASCA 177
O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)
R v Beck [1990] 1 Qd R 30
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Taylor v The State of Western Australia [2016] WASCA 210
Ward v The Queen (1997) 19 WAR 68
Williams v The State of Western Australia [2017] WASCA 206
SMITH J:
On 7 December 2018, the appellant, A, pleaded not guilty in the Children's Court to one charge of aggravated home burglary with intent. The charge was that, on 8 October 2018, A entered or was in the place of F ordinarily used for human habitation, without F's consent, with intent to commit an offence therein, in circumstances of aggravation, namely in company with (two) other persons.[1]
[1] Particulars given in the notice of prosecution, PE 3683 of 2018.
The charge against A and another juvenile co-offender was listed for trial in April 2019. When the trial commenced on 26 April 2019, the prosecutor stated in opening, that either A or B, or another (adult), was the principal offender, or A and B were each an aider or abettor, of the offence of aggravated (in company) habitation burglary with intent.[2]
[2] ts 18, 26 April 2019.
On 29 April 2019, the magistrate delivered extemporaneous reasons for decision. His Honour found A and B each guilty of the offence as an aider, and entered a conviction against A and B.
In the notice of appeal, A sought leave to appeal against conviction on four grounds. Before the hearing of the appeal, A abandoned grounds 2 and 3, and sought leave to appeal on grounds 1 and 4 only.
Grounds 1 and 4 are as follows:[3]
Ground 1
The learned Magistrate erred in fact and law in finding that [A] was an 'aider' under s 7(b) or s 7(c) of the Criminal Code.
[3] Appeal notice, filed 5 July 2019.
Ground 4
There was a miscarriage of justice as the verdict of the learned Magistrate was unsafe and satisfactory.
Leave of the court is required for each ground of appeal. Leave to appeal must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
[4] Criminal Appeals Act 2004 (WA)s 9.
I am of the opinion that leave to appeal on both grounds should be refused. I am not satisfied that the proposed grounds have any reasonable prospect of success and, accordingly, I am not satisfied that any error of law in the decision of the magistrate has been demonstrated. The principal reasons for my findings are that I am not satisfied that:
(a)guilt could not, on the facts before the court, be inferred; and
(b)evidence supporting reasonable inferences compatible with A's innocence should not be considered in isolation from the whole of the evidence.
The evidence
A conceded at trial, and does not challenge on appeal, that he was one of three people seen by a witness, H, in the rear yard area of the burgled property on 8 October 2018.[5] By the end of the trial, the only fact in issue was whether it could be proved beyond reasonable doubt that A entered the place of the owner of the property or whether he aided any person who did.
[5] Appellant's outline of submissions, filed 17 September 2019 [23].
The prosecution case was that witness H observed that:[6]
(a)A, B and another were on the bike path adjacent to the side fence of F's property;
(b)one of the group entered F's back yard and started checking doors and windows while the other two remained on the bike path as lookouts;
(c)the lookouts then entered F's back yard; and
(d)one of the group then entered F's garage.
[6] ts 83 ‑ 84, 26 April 2019
The prosecution submitted that the two who remained in the back yard of F's property were aiding the person who entered the garage and on that basis A could be convicted of the burglary.[7]
[7] ts 84, 26 April 2019.
H's property is located in the street behind and diagonally across from the rear of F's property and adjacent to a vacant block of land that abuts the bike path that runs horizontally to F's property.[8]
[8] ts 21 ‑ 23, 26 April 2019; exhibit 1A.
The side of F's property (from the front of the house to the rear) abuts a bike path that runs horizontally to F's property. The other side of the bike path is what could be described as park land that runs down to the Canning River.[9] F's property is at the end of a cul-de-sac and the rear side fence of F's property (abutting the bike path) appears to be comprised of metal posts with open vertically strung wire through which the park area and the bike path can be seen.[10] Importantly, the back yard of F's property can be clearly seen from the grassed area of the park and from the bike path that is adjacent to F's back yard.
[9] Exhibit 1, see Google Maps, aerial map of F's property.
[10] Exhibit 2, photograph taken on 26 April 2019 of the rear yard of F's property.
The evidence of H was that at shortly before 12.40 pm on 8 October 2018, he had returned to his home and parked his car in the carport of his property.[11]
[11] ts 21 ‑ 24, 26 April 2019; exhibit 1A.
Upon arriving home, H observed from his driveway a group of three people standing either on, or adjacent to, the pathway adjacent to F's side fence (and back yard). H then entered his home and went to his back verandah where he saw one of the group on F's back patio. This person was shorter than the other two and wearing a grey hoodie. The person wearing the grey hoodie appeared to be looking through windows and trying to open doors.[12]
[12] ts 24 ‑ 25, 26 April 2019.
H returned to the front of his home and looked around the corner of his fence line, through an open chain-link fence surrounding the vacant block next to his house (located to the rear of F's property) and saw the other two members of the group standing separated, adjacent to F's side fence (on the path), looking in opposite directions. One appeared to be facing north‑east and the other was facing south‑west, with distance between them. Under cross-examination, H said he observed them doing this for 'seconds'.[13]
[13] ts 27, 29, 26 April 2019.
H then went back inside his house to retrieve his telephone, walked back onto his back verandah and telephoned the police. Police records record that the call was made at 12.40 pm.
While H was speaking to the police (or immediately after) he observed the other two males on the back patio of F's property. By then all three of the group were on F's property. H saw one of the three walk around the back of the house and down the western side out of sight. He then saw that the garage door was open and saw one of the group enter the garage through the door that was now open. H later clarified that he saw the pedestrian door open and the person walk through (to the garage) rather than the garage door (roller door).[14] When H had first began observing the group of three he observed that the pedestrian door to the garage and the roller door were both closed.[15]
[14] ts 32 ‑ 33, 26 April 2019.
[15] Both doors could be used to enter the garage.
After speaking to the police, H went out to his front yard and back yard several times to try and see what was going on at F's property. However, by that time he was unable to see anyone for a period of about three minutes. He then saw the group running along the back patio of F's property towards the open fence that abuts the parkland (away from the direction of his house) and he lost sight of them as his view was obscured by a garden shed on F's property. H did not see the group of three again.
At about 12.43 pm, on 8 October 2019, Constables McDiarmid and Lin were dispatched to attend at F's property under 'priority two' emergency driving conditions, which meant that they were authorised to drive with their emergency sirens on and drive 20 km/h above the speed limit and breach red traffic lights.[16]
[16] ts 55 ‑ 56, 26 April 2019.
As Constables McDiarmid and Lin drove towards the parkland a short distance away from F's property they turned the sirens of the police car off and saw three young males running on the grass area from the direction of F's property towards the river into bushland.[17] Constables McDiarmid and Lin gave chase and conducted foot patrols of the bushland for about 30 minutes. At 1.09 pm they returned to F's property and observed that the rear garage door was partly open and the flyscreen on a rear window was partially damaged. They were subsequently notified that a group of three had been apprehended in the river by others and were in custody.[18]
[17] ts 56, 26 April 2019.
[18] ts 57 ‑ 58, 26 April 2019.
After police officers attended F's property, H went into F's back yard and also observed that the roller door of the garage was partially up.[19]
[19] ts 33, 26 April 2019.
At the trial, F also gave evidence. F's evidence was:[20]
(a)both the pedestrian and the roller doors at the rear of the garage were closed when he left the house before the burglary, albeit that the pedestrian door was not locked. The roller door was locked and when so locked can only be opened from the inside;
(b)a large fly screen to the rear kitchen window had been ripped away from the window and badly damaged;
(c)there is a gate (not depicted in the photographs tendered) in the metal fencing that runs along the boundary of the property that abuts the footpath, which fencing can be seen to join the open fencing along that boundary and a point close to the corner of the house. The gate was closed with a padlock on it when he left home. The gate was open and the padlock was gone when he returned; and
(d)aside from the state of the doors, nothing appeared to be out of place or missing in the garage after the burglary.
[20] ts 51 ‑ 53, 26 April 2019.
The issues in contest at trial and on appeal
It was not in contest at the trial that a group of three males were seen in F's back yard. Nor was it in contest that a burglary was committed by one of the group by opening the pedestrian door and entering F's garage.
Identification of the three members of the group was in issue at the trial, but not in the appeal.
It was also an issue at trial whether A was the principal offender, or an aider. On appeal, the issue in contention is solely whether on the evidence given at the trial it could be established beyond reasonable doubt that A aided the person who entered the garage.
Thus, the appeal turns on the question of whether, if A (on the least culpable scenario) was neither the first to enter the property (and who was seen at windows and doors), nor the person who was seen to enter the garage, he could or should have been convicted of the burglary. On this scenario, to be convicted A must have been one of the two people seen to be outside the property (keeping lookout) who then entered the property and could be seen on the back patio or down the side of the house, and who then ran together with the two others from the property in flight from pursuing police.
Principles ‑ accessories
Pursuant to s 7(b) of the Criminal Code, a person is liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence. Pursuant to s 7(c), a person is criminally liable if the person aids another person in committing the offence.
There are four requirements for liability under s 7(b) or (c). These were recently restated by the Court of Appeal by Buss P and Mazza JA in Birdsall v The State of Western Australia:[21]
[21] Birdsall v The State of Western Australia [2019] WASCA 79 [110] ‑ [114]; the majority separated the third element between s 7(b) and (c), in [113] as (c) and (d)] so that they are referred to separately, the elements had previously been stated as four. See for example, Marchesano v The State of Western Australia [2017] WASCA 177 [171] (Buss P; Mazza & Mitchell JJA agreeing).
Section 7(b) of the Code provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if he or she does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
Similarly, s 7(c) of the Code provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if the person aids another person in committing the offence.
...
A person will not be deemed to have committed an offence as an aider under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt that:
(a)a person or persons (the principal) has or have actually done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which 'constitutes the offence' within s 7(a);
(b)the person alleged to be the aider had actual knowledge of the facts which constitute the offence (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed or might be committed by the principal);
(c)as to s 7(b), the aider did or omitted to do something with the intention of aiding or assisting the principal to do the acts or to make the omissions which constitute the offence;
(d)as to s 7(c), the aider aided the principal in doing the acts or making the omissions which constitute the offence; and
(e)what the aider did or omitted to do actually aided or assisted the principal to do or in doing the acts or to make or in making the omissions constituting the offence.
See, generally, Scafetta v The State of Western Australia; Bomford v The State of Western Australia; Ritchie v The State of Western Australia; Taylor v The State of Western Australia; Marchesano v The State of Western Australia.
A person will do or omit to do something, with the intention of aiding or assisting the principal to do the acts or to make the omissions which constitute the offence, if the person's act or omission was willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts or the making of the omissions which constitute the offence. See Marchesano. (footnotes omitted)
A concedes that the first requirement has been met in this case, that is, a principal offender committed the offence (charged against A).[22]
[22] Appellant's outline of submissions, filed on 17 September 2019 [50]; A conceded that both (a) and (b) had been met. At the hearing of the appeal, A withdrew the concession that (b) had been met. As a result, the respondent was granted leave to file supplementary submissions as to the requirements of (b) (element of knowledge).
An aider must have actual knowledge of the facts amounting to the offence in respect of which aid is being lent. In each case the aider need not know that the acts in question constitute an offence, but must know the essential facts that would constitute the commission of an offence.
Where a common purpose is not alleged (under s 7(c)) a mere suspicion of the facts constituting an offence is not sufficient. In Ward v The Queen, Steytler J observed:[23]
[I]t seems to me to follow, from these cases and from that of Giorgianni, that there is, for present purposes, a distinction to be drawn between cases in which those who, by their acts committed in advance of the commission of the crime by the principal offender, are 'aiders' of the crime committed by the principal offender, on the one hand, and those in which the 'aider' assists the principal offender in the actual commission of the offence in circumstances in which that assistance is not provided in the furtherance of any pre-existing common purpose, on the other. In cases of the former kind it is enough, for liability, that the aider contemplate only that the principal might commit the crime rather than that he or she will necessarily do so. In cases of the latter kind there can ordinarily be no liability unless the aider knows all of the facts constituting the offence which is then being committed and to the commission of which he or she is then lending assistance.
[23] Ward v The Queen (1997) 19 WAR 68, 75 ‑ 76 (Kennedy & Franklyn JJ agreeing).
However, a person will be responsible under s 7(c) if the aider knows what offence might be committed by the person he or she is aiding.[24] In any event, knowledge of the essential facts might be inferred from proof of exposure to the obvious.[25]
[24] Taylor v The State of Western Australia [2016] WASCA 210 [54] ‑ [59] (Buss P); Birdsall v The State of Western Australia [2019] WASCA 79 [113] (Buss P & Mazza JA).
[25] Ward v The Queen (1997) 19 WAR 68, 75 (Steytler J; Kennedy & Franklyn JJ agreeing) applying Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473.
While the respondent accepts that all four requirements are required for liability under s 7(c), the respondent submits that the fourth requirement (referred to as (e) in [113] of Birdsall v The State of Western Australia) is unnecessary for liability under s 7(b) and insofar as the authorities conflate by way of obiter (as to the need to satisfy the fourth requirement) they do not represent a correct statement of the law in a s 7(b) case.[26] In particular, the respondent submits that each of s 7(b) and (c) are differently worded in the Criminal Code and have different meanings, and that there is nothing in the language of s 7(b) that compels the conclusion that it must be proved that what was done actually aided or assisted the principal. It is said to follow, therefore, if that were so then s 7(b) would be otiose.[27]
[26] This point is said to emerge from a misapprehension of what was held by the Queensland Court of Appeal in R v Beck [1990] 1 Qd R 30 in O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997) and have the support of the learned authors of Colvin E, McKechnie J, Criminal Law in Queensland and Western Australia: Cases and Commentary, (6th ed, 2012) [20.8].
[27] Respondent's outline of submissions, filed 1 October 2019 [18] ‑ [23].
The respondent argues that the line of Western Australian authority in which the four requirements are set out turn on either the second requirement (as to knowledge) or the third requirement (as to intention to aid) and that none of these decisions turn on the fourth requirement of 'actual aid'. Thus, it is submitted that the four requirements are obiter with respect to a case concerning actual aid where criminal responsibility is said to derive from s 7(b).[28]
[28] Appeal ts 35, 8 October 2019.
However, the arguments sought to be put on this point by the respondent are not open to be made before a single judge of this court. The statement of principles by Buss P and Mazza JA in their joint majority reasons in Birdsall v The State of Western Australia represents the law in Western Australia. Consequently, it cannot be said that at least since (if not before) Birdsall v The State of Western Australia the law on this point is by way of obiter. This is because in Birdsall v The State of Western Australia the State's case:[29]
[A]s put in opening, was that the other seven males were criminally responsible for the Deceased's murder on one or other of three bases, namely:
(a)pursuant to s 7(b) of the Code, as a person who did an act for the purpose of enabling or aiding another person to murder the Deceased;
(b)pursuant to s 7(c) of the Code, as a person who aided another person in committing the murder; or
(c)pursuant to s 8 of the Code, as a person who had formed a common intention with at least the person who inflicted the fatal stab wound to prosecute an unlawful purpose in conjunction with one another (namely, to assault the Deceased or another member of the Deceased's Group), and in the prosecution of such purpose an offence was committed (namely, the murder of the Deceased) of such a nature that its commission was a probable consequence of the prosecution of such purpose.
[29] Birdsall v The State of Western Australia [2019] WASCA 79 [32].
In Birdsall v The State of WesternAustralia, Buss P and Mazza JA also said:[30]
Section 7(b), s 7(c) and s 7(d) are predicated upon and operate '[w]hen an offence is committed'. An offence is committed, for the purposes of s 7(b), s 7(c) or s 7(d), when the relevant acts or omissions by 'the aider' or 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. Also, the deeming provisions in s 7(b), s 7(c) and s 7(d) are engaged when the relevant acts or omissions by 'the aider' or 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur. That is, an alleged 'aider' or an alleged 'counsellor or procurer' is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' when those relevant acts or omissions (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. See s 7 read with the definition of 'offence' in s 2.
Section 7 focuses upon the relevant conduct (that is, the relevant acts or omissions), as distinct from any conviction of the 'principal'.
Thirdly, the effect of s 7(b), s 7(c) and s 7(d) is to deem 'the aider' or 'the counsellor or procurer', as the case may be, to have done the relevant acts or made the relevant omissions which 'the principal' has done or made, and not to deem 'the aider' or 'the counsellor or procurer', as the case may be, to be liable to the same extent as 'the principal'. (citations omitted)
[30] Birdsall v The State of Western Australia [2019] WASCA 79 [158] ‑ [160].
If this argument is sought to be pressed on behalf of parties for whom the Director of Public Prosecutions acts, it is an issue that should (at an appropriate time) be put to the Court of Appeal. Having made this observation, it may be open to argue that:
(a)section 7(b) should be read to catch acts that are carried out prior to the principal offender committing the offence (providing that such acts are for the requisite purpose 'of enabling or aiding', the principal offender); and
(b)section 7(c) should be read to catch acts only of aiding that are carried out at the time the principal offender commits the offence.
In any event, for the reasons that follow, I am of the opinion that it is not necessary to consider the point raised by the respondent in this appeal. This is because I am of the opinion that on the facts in this matter there was evidence before the magistrate upon which his Honour could be, and was so, satisfied beyond reasonable doubt that A:
(a)did an act which aided or assisted the principal to commit the offence; or did an act for the purpose of aiding the principal to commit the offence, that is, by the act of acting as a lookout (with one member of the group) on the path whilst one of the co-offenders was checking windows in preparation for the commission of the offence, either by another member of the group (assuming that person was not A); or
(b)by acting as a lookout in the back yard in close proximity to the principal offender when, in all the circumstances, such presence could be found to constitute more than mere presence and amount to the provision of apparent support to the principal offender whilst the principal offender entered F's garage.
As to the provision of apparent support, it should be noted that whilst presence at the commission of an offence will not, of itself, be sufficient to constitute aiding,[31] as Macrossan CJ stated in R v Beck:[32]
Intentional encouragement may come from expressions, gestures 'or actions intended to signify approval'. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.
[31] O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997), 7 (Malcolm CJ; Kennedy & Franklyn JJ agreeing) applying R v Beck [1990] 1 Qd R 30, 37 (Macrossan CJ) applied in Marchesano v The State of Western Australia [2017] WASCA 177 [169] (Buss P; Mazza JA agreeing; Mitchell JA relevantly agreeing); see also, Clarke v The State of Western Australia [2018] WASCA 14 [562] ‑ [563] (Buss P; Mazza JA agreeing; Mitchell JA relevantly agreeing).
[32] R v Beck [1990] 1 Qd R 30, 37.
In L v The State of Western Australia, the Court of Appeal stated:[33]
Aiding, counselling or procuring the commission of an offence requires intentional participation by conduct aimed at encouraging or assisting something which goes to make up the facts which constitute the commission of the relevant offence. A person cannot be an aider through an act which unwittingly assists the principal offender. Nor does a person aid another in the commission of an offence unless some support for the commission of the offence is actually provided. Presence at the commission of an offence may, but need not, constitute wilful encouragement or support of the offending. Whether an accused's presence constitutes aiding, counselling or procuring for the purposes of s 7 will depend on the proven circumstances of the case. (citations omitted)
[33] L v The State of Western Australia [2016] WASCA 101 [37] (footnotes omitted).
The magistrate's findings
It is not in issue that the magistrate appropriately directed himself in relation to the burden of proof in the drawing of inferences.
The magistrate, when considering whether either of the two juveniles charged with the offence of habitation burglary were guilty of the offence, directed himself with regards to aiding, and stated that:[34]
The State says, at the very least, each of them is a section 7(c) ‑ sorry, 7(b) offender. In order to prove that, the State would have to prove that each one of these two knew all the essential facts which made what was being done an offence, namely a crime. I don't think there would be any dispute that the person seen at the scene at the rear of the house on the patio knew what was going on was a crime. They were close enough to see. The second thing the State has to prove against each aider and abettor is that each intentionally did what they did.
In this case, the State says at first it was a lookout and the second stage merged into a presence. Mere presence is insufficient but if the presence amounts to aiding then ‑ if the presence is more than mere it can amount to aiding, is the way to put it. The State says it started off at the two of them looking out for another as a lookout. And the evidence against each of these two, I suppose ‑ also, what I suppose ‑ it also includes flight, flight as consciousness of guilt, running away because of a guilty mind. So those are things the State has to prove.
[34] ts 3 ‑ 4, 29 April 2019.
The magistrate then turned to the facts of the case. The magistrate recited the evidence of H as follows:[35]
He said he saw two men, one was looking one way up the bike path, he said it was north-east, one looking the other way, it was south-west. They were on the bike path. [I]n infer from what he said, I draw the inference that these two people were looking about ‑ they weren't looking in the one direction or they weren't proceeding in the one direction and they weren't moving the one direction ‑ they were standing, looking about. That's what I infer from Mr H's evidence. Which by itself doesn't amount to anything but it's a piece of evidence in the whole, the whole of the evidence.
[35] ts 5, 29 April 2019.
The magistrate then stated:[36]
[36] ts 6 ‑ 8, 29 April 2019.
So Mr H saw what was one person there with a grey hoodie then the other two were there as well. And that's an important piece of evidence because it is the other two that have been seen on the bike path, moved, chose to, willingly ‑ no one forced them to ‑ walk over onto Mr F's property and be present where the man with the hoodie was checking the windows and walked down the side of the house.
That piece of evidence does two things. One, it makes the group a group of three and secondly, it puts the other two who weren't checking the windows physically present so that their presence ‑ so that the person checking the windows might, one infers, gain some comfort from their physical presence. So that goes together with the piece of evidence of looking about whilst on the bike path and they have then moved and become, willingly, a group of three closer to where the door was opened.
[Mr H] saw a person enter the personnel door… With three people present. One going in, two of the people having been further away and moved over to where the entry was. Mr H rang the police… 12.40 pm, I think, described to the police what he was seeing.
… He saw then those three people running away after he had rung the police. Counsel for (B) asked … whether those three people had ran back past his house rather than running away towards the river and no, Mr H said, 'Didn't come back past my house. Went the other way towards the river.'
The sighting then was next by ‑ at 12.46 by Constable McDiarmid,… and Constable Lin who were on the corner of…W Street – before it became a bike path ‑ and B Court, [the street in which F's property was located] and Constable McDiarmid looked towards the river and he sees three people. I infer that these are the same three people who had been seen by Mr H. That's an important piece of evidence because when the police parked there, they had turned their car siren off and, but obviously it was on before, and saw the three persons running away.
That's an important piece of evidence because that's flight, running away from ‑ towards the river from where there had been an entry to a house unauthorised. That, I infer, is evidence of consciousness of guilt. 'Constable Lin got out and ran after them', said Constable McDiarmid from about 40 metres away. He said he saw them. He said they were the same people that he saw later on in custody…
So there is evidence of consciousness of guilt by this group of three people, if they were the same three people who had entered the house. I infer that there were not three groups ‑ two groups of three young people on the bike path in the middle of nowhere on a Monday afternoon, one group doing a burglary and one not. I infer that's not the case. That's in fact, silly. So it was the same group of people who had done the burglary, that's why they were running away.
…
[T]he group of three were the ones that Constable McDiarmid had seen running away and a group of three were the same group of three who had been at the back of, and one of whom had been in, Mr F's house.
… [T]wo important pieces of evidence fortify that conclusion. One is that Mr H was cross‑examined and was adamant that a group of three never ran back past his house but rather went the other way. And the sighting of running across and running away from Constable McDiarmid was at 12.46 which was six minutes after the initial sighting by Mr H. So it fortifies my conclusion that there wasn't another group of three burglars wandering around the place who got there within six minutes and ran away. It was, in fact, the people who had been arrested, namely, these two and the other adult…
It really is quite a simple case. It comes down to the fact that there weren't two groups of three people. There was only one that included these two and each was a section 7 offender by way of aiding by way of presence and/or lookouting. When I say aiding by way of presence, what was happening was more than mere presence because there was a movement by two of them over to where, closer by several metres to where the actual entry was taking place and ‑ so anyway, for those short reasons I find the charge proved in this case, each of them guilty of entering with intent.
The proposed grounds of appeal
It is conceded by A that unless the court finds that there was a miscarriage of justice the appeal should not be allowed.[37]
Proposed ground 1 ‑ did the magistrate properly identify the act that A did with the intention of aiding or assisting the principal offender?
[37] ts 2, 8 October 2019.
The error of law that A seeks to identify in ground 1 of the appeal is said to have occasioned a substantial miscarriage of justice on grounds that the facts found by his Honour did not satisfy the requirements for aiding.
It is contended on behalf of A that the magistrate erred in law in failing to direct himself on what the State were required to prove, in that his Honour failed to direct himself that he was required to be satisfied to the requisite standard that:
(a)the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence; and
(b)what the aider did or omitted to do actually aided or assisted the commission of the offence.
It is argued that the direction that the prosecution must prove against an aider and abetter that they 'intentionally did what they did' does not accurately reflect or summarise either of these elements, let alone both. This error of law is said to have caused his Honour to inadequately identify the facts that needed to be found to satisfy these requirements of aiding.
In particular, it is argued that the magistrate did not expressly identify the act that A did with the intention of aiding or assisting the principal offender, or the act of the principal that A intended to aid. It is said that the magistrate's finding was that A simply aided by his presence and there was no finding that A intended his presence to aid the offending.
It is also contended that the only possible assistance given to the principal offender, at the time of the commission of the offence, would have been by the presence of the two members of the group in F's backyard. If they were ever lookouts, the evidence of H was that this had ceased by the time one member of the group had entered F's garage.
Issue is also taken with the inference drawn by the magistrate that the principal offender 'might… gain some comfort from their physical presence'. A's claim is that, firstly, the magistrate did not find that the presence of the others did assist in the commission of the offence. Secondly, it said that this is not an inference but speculation, as there was no evidence to support this conclusion. Thirdly, even if this was a permissible inference, it is said that this was not the only inference open on the evidence. It is at least as likely as not that the presence of the others did not affect the comfort levels of the principal offender.
Proposed ground 4 ‑ miscarriage of justice
By this ground it is alleged that A's conviction for burglary was unreasonable or cannot be supported by the evidence.[38]
[38] Appellant's outline of submissions, filed 17 September 2019 [48].
The principles governing such a ground of appeal are well established and were summarised by Beech J in Bentley v Greaney:[39]
(1)the question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty;
(2)that question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(3)the appeal court must undertake its own independent assessment of all the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict;
(4)in answering that question, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a magistrate ought also to have experienced unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
[39] Bentley v Greaney [2016] WASC 227 [31].
It is contended on behalf of A that when regard is had to each of the relevant circumstances (of the observations of H) individually that the inference drawn by the magistrate that A and another were outlooking for, and providing support to, the principal offender was not open. This is said to be so because (on the least culpable scenario):
(a)when the evidence is examined each of the material observations by H, of the acts of A, are indispensable links in a chain and not strands in a rope;
(b)the acts of A are each individually consistent with either an innocent explanation or consistent with the offence of trespass or an intention to steal something from the backyard;
(c)it was not open to the magistrate to infer that A (and the other member of the group said to be a lookout) intended to aid the burglar or that they knew that the principal offender intended to commit a burglary; and
(d)that even if A was acting as a lookout for the principal offender at the time he was on the bike path, the only offence that was being committed at that point in time was trespass by the person in the grey hoodie who had entered the backyard of F's property and that A's role as lookout had ceased prior to the commission of the burglary.
In particular, it is argued that when the two members of the group are seen to be standing on the bike path, one looking north‑east and the other looking south‑west whilst the person in the grey hoodie is in F's backyard several inferences are open, some of which are inconsistent with a finding that they had actual knowledge that the principal offender intended to commit an offence of burglary. These are:
(a)whilst the two on the bike path know that the person in the grey hoodie has trespassed onto F's property, they have a mere suspicion that he is going to do more and might suspect that he intended to steal something from the yard or to steal something from the house (and in order to do the latter he might have to do a burglary); and
(b)they could be a lookout for the person in the grey hoodie or they could be a lookout for themselves (by thinking that they could protect themselves by looking to see if someone was coming instead of running away and being seen, and thus drawing attention to themselves and their friend who is in the backyard and who is about to commit an offence).
It is pointed out on behalf of A that there was no evidence before the magistrate about what caused the group of three to take flight as there is no evidence that the sound of the approaching police vehicles alerted anyone. Nor was anything stolen from F's property. Consequently, in circumstances where there is no evidence of a need for flight, or of any alert alarm being raised, it is argued that a reasonable hypothesis that cannot be ruled out is the possibility that the two persons who were on the bike path went onto F's property in an attempt to persuade the person in the grey hoodie not to commit the burglary and were ultimately successful in drawing him away mid offence.
Thus, it is said to follow that, in these circumstances, as it is accepted in the appeal that A was not the principal offender, that he was merely standing by.
Further, it is argued that the fact that A and the other two of the group of three ran away, in circumstances where an inference is open that they had trespassed, cannot be used as a circumstantial piece of evidence supporting guilt for the burglary as it is open that there are other reasons for flight, some of them innocent.
Relevant principles ‑ circumstantial evidence
Circumstantial evidence is evidence of facts from which (if accepted) a judge, magistrate or jury may infer the existence of a fact in issue.[40] Where the prosecution relies wholly or substantially on circumstantial evidence, a magistrate (or judge or jury) can only convict an accused where the inference of guilt is the only rational inference that the circumstances will enable them to draw.[41]
[40] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).
[41] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen & Mason JJ).
In assessing the evidence established beyond reasonable doubt by the circumstances, the question before a finder of fact is whether it is open, on the whole of the evidence, to be satisfied as to the guilt of the accused of the offence as charged.
A circumstantial case is not, however, to be considered on a piecemeal basis or on the rejection of one circumstantial fact alone. This well‑established point was explained by Gummow, Hayne and Crennan JJ in R v Hillier:[42]
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
[42] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] - [48].
Not all facts to be proved (by the prosecution) in a circumstantial case are required to be proved beyond reasonable doubt. As Hall J pointed out in Williams v The State of Western Australia:[43]
Not all facts are required to be proved to the same standard by the prosecution. The case law makes a distinction between facts which are indispensable in reasoning towards an inference of guilt and those that are not. The former are often referred to as 'links in a chain' and the latter as 'strands in a cable'.
[43] Williams v The State of Western Australia [2017] WASCA 206 [81] (Hall J; Buss P agreeing).
The analogies of 'links in a chain' and 'strands in a cable' (as to whether material facts are indispensable or not) were explained by Dawson J in Shepherd v The Queen:[44]
[I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
[44] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579.
Where a fact is an indispensable link in reasoning towards guilt (links in a chain) that fact must be proven beyond reasonable doubt. However, facts which are not indispensable in reasoning towards guilt do not have to be proven by the prosecution beyond reasonable doubt.[45]
[45] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J); applied in Williams v The State of Western Australia [2017] WASCA 206 [81] (Hall J; Buss P agreeing) see, also, observations made by Mazza JA at [12] ‑ [14].
A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt.[46] That is, proof of the fact is a necessary condition for establishing a further (and different) fact.[47]
[46] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 576 (Mason CJ); Austic v The State of Western Australia [2010] WASCA 110 [3] (McLure P].
[47] Austic v The State of Western Australia [2010] WASCA 110 [3] (McLure P).
Post‑offence conduct, including lies and flight from justice, is circumstantial evidence.[48] Flight evidence can be relied upon by the prosecution as probative of the truth of an accused's guilt.[49] A magistrate may accept and act upon evidence of post‑offence conduct without being satisfied beyond reasonable doubt that the evidence establishes guilt, unless the post‑offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends.[50]
[48] Allami v The State of Western Australia [2013] WASCA 230 [81] (Buss JA; Hall J agreeing).
[49] Allami v The State of Western Australia [2013] WASCA 230 [9], [13] (McLure P) [79] (Buss JA; Hall J agreeing).
[50] Allami v The State of Western Australia [2013] WASCA 230 [81] (Buss JA; Hall J agreeing).
There may, however, be some circumstances in which post‑offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post‑offence conduct. But, where such lies or conduct are considered in the context of all the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.[51]
[51] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [40] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Allami v The State of Western Australia [2013] WASCA 230 [94] ‑ [97] (Buss JA; Hall J agreeing).
A reasonable hypothesis consistent with innocence should not be excluded, or not be considered, in isolation from the rest of the evidence.[52] A magistrate cannot be criticised for not considering a hypothesis that is consistent with innocence if that hypothesis is speculative or if it is not a reasonable hypothesis. To be so reasonable there must be some evidence before the court upon which such a hypothesis could be said to be reasonable.
[52] Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [33] ‑ [34] (Hayne, Crennan, Kiefel, Bell & Gageler JJ) applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] ‑ [48] (Gummow, Hayne & Crennan JJ).
However, it is an error in principle to consider the significance of circumstantial evidence consistent with the innocence of the appellant in isolation from other evidence.[53]
Is an error of law established so as to establish a miscarriage of justice and is the verdict of guilt unreasonable?
[53] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48] (Gummow, Hayne & Crennan JJ); Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158 [34] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
For the following reasons, proposed ground 1 of the appeal has no prospects of success:
(1)Whilst his Honour's reasoning could have been more fulsome, clearly the magistrate found that A acted with the intention of aiding or assisting the principal offender and found that A's actions did in fact aid or assist.
(2)Whilst the magistrate did not make an express finding that the role of lookout actually aided the principal offender, it is well accepted that the role of a lookout can clearly be capable of constituting aiding.[54] If a person stands outside a property for the purpose of giving a warning to another (the principal offender) who he or she knows has or intends to enter premises for the purpose of stealing something, then that act constitutes aiding.
(3)Being present on a property whilst a burglary is being undertaken can also, in some circumstances, constitute aiding where the presence of that person said to be the aider goes beyond a mere presence.
(4)A finding that 'they did what they did', whilst inelegant, is a finding by the magistrate of a deliberate/willed act and a reference to the aid or assistance that A provided to the principal offender.
(5)For the reasons I explain below (when dealing with proposed ground 4), it is clear that the magistrate found that, on the least culpable scenario, A acted as a lookout whilst on the path and in F's backyard and the acts of A (as lookout and by being present in the backyard) in the circumstances aided the principal offender.
[54] See for example the direction given by the trial judge in Taylor v The State of Western Australia [2016] WASCA 210 [64], [85(b)] (Buss P).
Proposed ground 4 of the appeal also has no prospects of success:
(1)The analysis put by Counsel on behalf of A, offends against the principal in Hillier, that is, all of the circumstances established by the evidence are to be considered and weighed together in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
(2) The first question before this court (insofar as the second requirement of aiding is concerned) is whether, on the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that A had actual knowledge of the essential facts constituting the offence (of burglary) that was being, or was about to be, committed or might be committed by the principal offender.
(3) The submission that it was open on the evidence to find that when the two members of the group are seen to be standing on the bike path whilst the person in the grey hoodie is in F's backyard they could have been looking out for themselves and could only have no more than a mere suspicion that the person in the grey hoodie intended to steal something from the yard or the house is speculative. This is because the evidence before the court was that, whilst the two members of the group were standing on the bike path adjacent to the backyard of F's property, the other member of the group (who was wearing the grey hoodie) went along the back of the house looking in windows and trying doors in circumstances where his actions would have been visible to the others through the see-through side rear fence. Also, the two members of the group standing on the bike path were stood apart from each other not looking at each other but in opposite directions, thereby looking along the visible directions from which a third party could come past F's property.
(4)Added to these circumstances was the circumstance that a flyscreen was partially torn off a window (which the prosecution relied upon as evidence of intent to enter the premises) so that when the person in the grey hoodie trespassed onto the property (either over the fence line or via the gate that had been padlocked prior to the burglary), it is clear that both persons who were standing on the path must have known that their associate was about to commit, or might commit, a burglary. Even if the flyscreen was not partially torn off the window until the two members of the group who were on the path had entered the backyard of F's property, A, at that time, was in close proximity to the principal offender and, assuming that the principal offender was the person that attempted to remove the flyscreen, by that time such an act, together with the checking of the windows, showed a clear intent to enter the premises.
(5)The knowledge of A of the offence of burglary is evident from his exposure to the obvious. Both persons on the path were in close proximity to the backyard of F's property. On these facts, the magistrate was entitled to find, as his Honour did, that 'the person seen at the scene at the rear of the house on the patio knew what was going on was a crime. They were close enough to see'.[55]
[55] ts 3, 29 April 2019.
(6)Armed with the knowledge that the windows were being checked, it was open for the magistrate to find, as his Honour did, that A acted as a lookout before trespassing onto F's property.
(7)After both persons on the path entered F's backyard, their proximity between the back patio and the garage was such that A must have known that the principal offender was entering the garage.
(8)The act of A (if he was one of the two who remained on the bike path) to act as a lookout is not a necessary condition for establishing the finding that when A entered F's property as a trespasser that he then became an aider or gave assistance to the principal offender.
(9)The prosecution case is that, on the least culpable scenario, A aided the principal offender by acting as a lookout on the path and then by entering F's property and going on to the back patio and standing near the open fence, close to where the burglary was committed by the principal offender entering the garage. In these circumstances, where A was in close proximity to where the principal offender entered the garage amounted to still being a lookout and by his presence giving encouragement or support (described as comfort by the magistrate) which constituted a separate act of aiding or assisting. It is a matter of common sense that this action would constitute assistance as the act of A, in looking out from the back patio, was an extra pair of eyes and ears to look and listen for any sign of trouble from a passer‑by or if the property was occupied or from the occupant returning to the house. To argue that it was open to find that A was merely present as a trespasser is to ignore all of the circumstantial evidence and to deal with the evidence in a piecemeal fashion.
(10) By standing on the back patio, it can be inferred from the circumstances, A has not stopped from acting as a lookout as he is in a position as a trespasser to assist with a possible confrontation and to assist, if necessary, to carry any stolen property. There was no evidence that A or any other member of the group, as their knowledge evolved, made any attempts to withdraw from the offending by, for example, leaving the scene or remaining 'neutral' by standing outside the property. To the contrary, after A entered the property, before the principal offender entered the garage, A remained on the property for some three minutes before fleeing with his two associates. This evidence, when considered with all of the other circumstances, leads to an inference that, as A's knowledge evolved, he continued to aid the principal offender to commit the offence.
(11)The post offence conduct of flight was not an indispensable link in the chain of reasoning as, on the evidence before the court:
(a)it was not the only evidence upon which the magistrate relied which could establish A's consciousness (knowledge) of guilt;
(b)in any event, the evidence of the circumstances of flight appears to have been relied upon by the magistrate to establish identity, that is, it was A, B and the other adult offender who were part of the group of three (one of whom was a principal offender who committed the burglary of F's house); and
(c)it would have been open to find that the offence of burglary was established on the uncontradicted evidence of H of the events that occurred prior to the flight of the group of three.
Conclusion
For these reasons, leave should not be granted in respect of proposed grounds 1 and 4, and, accordingly, the appeal should be dismissed.
I will hear the parties further as to the orders that should be made to give effect to this decision.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith19 DECEMBER 2019
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