Allen v Brown - [2016] TASSC 22

[2016] TASSC 22

COURT: SUPREME COURT OF TASMANIA

CITATION: Allen v Brown [2016] TASSC 22

PARTIES:  ALLEN, Mick
  v
  BROWN, Christopher John

FILE NO:  394/2015
DELIVERED ON:  5 May 2016
DELIVERED AT:  Hobart
HEARING DATE:  4 May 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence – Other cases – Burglary, stealing and motor vehicle stealing – "Strands in a cable".

Chamberlain v The Queen (No 2) (1984) 153 CLR 421; Shepherd v The Queen (1990) 170 CLR 573, referred to.
Aust Dig Criminal Law [2712]

REPRESENTATION:

Counsel:
             Applicant:  J Rudolf
             Respondent:  In person
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  In person

Judgment Number: [2016] TASSC 22
Number of paragraphs: 27

Serial No 22/2016
File No 394/2015

SERGEANT MICK ALLEN v CHRISTOPHER JOHN BROWN

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons delivered orally) 5 May 2016

This is a motion for the review of an order of the Deputy Chief Magistrate, Mr M Daly, who found the respondent, Christopher John Brown, not guilty of six charges and dismissed those charges. The charges related to burglaries at two Woolworths supermarkets that occurred in the early hours of 21 December 2014. The first burglary was at the Woolworths supermarket in Campbell Street, Hobart. The second was at the Woolworths supermarket in Lindisfarne. The respondent was charged with burglary of the Campbell Street supermarket, stealing cigarettes from there, burglary of the Lindisfarne supermarket, stealing money and items from there, and two counts of motor vehicle stealing. The two counts of motor vehicle stealing related to two Subaru vehicles that were stolen prior to the burglaries and found burnt out within minutes after the Lindisfarne burglary, not far from the Lindisfarne supermarket.
A lot of the evidence before the learned magistrate was uncontroversial. There were agreed facts as follows:
"(i)Between 8pm on 17 December 2014 and 8am on 18 December 2014, a green Subaru Outback station wagon … owned by Timothy Chappell, was stolen from outside 63 Strickland Avenue, South Hobart ...
(ii)Between 11pm on 20 December 2014 and 3am on 21 December 2014, a green Subaru Liberty station wagon, owned by Paul Helleman, was stolen from outside 39 Cornwall Street, Rose Bay. Inside the vehicle was an orange and black sleeping bag and cover. The name Helleman was written on it ...
(iii)At 2.54am on 21 December 2014, three offenders have gained entry to Woolworths Supermarket, 181-189 Campbell Street, Hobart by smashing out the bottom pane of glass at the front automatic sliding doors. Once inside the offenders have jumped the counter directly inside the front door. The offenders have forced open locked cigarette cabinets using a pinch bar, and stealing [sic] cigarettes and mobile phones. … CCTV footage of the incident has been obtained ...
(iv)At approximately 4.13am on 21 December 2014, two Subaru station wagons are captured on CCTV from the Chemist Warehouse, Lindisfarne, driving down Franklin Street, Lindisfarne towards Lincoln Street.
(v)At approximately 4.25am on 21 Decembr 2014, a Subaru Outback, FS 6798, was discovered fully engulfed in flames in Malunna Road, Lindisfarne.
(vi)At approximately 4.25am on Sunday, 21 December 2014, three offenders have gained entry to the Woolworths Supermarket, 6 Franklin Street, Lindisfarne, by smashing their way through the front glass automatic sliding doors. Once inside they have jumped the counter to where the cigarette cabinets are located. Offenders have stolen a large quantity of mobile phones from behind the service counter. They have also removed nine cash tills containing cash. … CCTV footage of the incident has been obtained. Police arrived at the scene, … locating an orange and black sleeping bag inside, which has been identified as belonging to Mr Helleman.
(vii)At 4.35am on 21 December 2014, uniformed police attend 6 Lenna Street, Rose Bay, recovering property stolen from the two Woolworths Supermarkets, and sleeping bag cover of Mr Helleman's in the garage of that address.
(viii)The defendant, Christopher John Brown, was located in the garage, and placed under arrest …
(ix)At 4.50am on 21 December 2014, the Subaru Liberty station wagon, DS 8903, was located engulfed in flames at Kaoota Road, Rose Bay.
That much was agreed. A lot more evidence was uncontested, and it is clear that the magistrate accepted that evidence. First of all, the closed circuit television footage showed the three offenders at each of the two supermarkets. From the way they were dressed, it appears that the same three people were the burglars at both places. And, in both cases, entry was gained to the supermarkets by smashing the front sliding glass doors with a pinch bar, which was then used to open cupboards or drawers.
The evidence in relation to the respondent was entirely circumstantial. There were three bodies of evidence that were relied upon by the prosecution as linking the respondent with the offences that were committed that night. The first was that, at the same address in Lenna Street as the police found the respondent, they also found property that had been taken from the Lindisfarne supermarket, Mr Helleman's sleeping bag cover, and a pinch bar resembling the pinch bar that had been used in the burglaries. It was pretty obvious that at least one of the thieves had brought items to the building where the respondent was found.
The second body of evidence concerned glass fragments that were found on the shoes that the respondent was wearing at the time when the police found him. There was evidence from a forensic scientist that there were fragments on both shoes that matched the glass that was broken at the Lindisfarne store. That man gave evidence that the glass broken at the Campbell Street store was different. And in a report that was tendered, he said that about 1.3% of the glass that exists in the community would match the glass that came from the Lindisfarne window. So the chances of a random piece of glass matching the glass from the broken window at Woolworths in Lindisfarne were of the order of 1 in 100.
The third piece of evidence concerned sunglasses found at Woolworths at Campbell Street. There was evidence that, in the area where the thieves took property from that supermarket, they made a mess, and on the floor in that area there was a pair of sunglasses. DNA testing of the sunglasses revealed a mixed DNA profile that had come from at least three contributors, but within that mixed profile there was a major profile that appeared to come from a single person, and that major profile matched the DNA of the respondent. The evidence was that the chances of a person chosen at random having DNA that matched that profile were of the order of 1 in 100 billion.
The prosecution case was that the combined effect of (a) the evidence as to the property from the Lindisfarne burglary, the sleeping bag cover, and the metal bar being in the same place as the respondent, and (b) the evidence as to the glass fragments on the shoes worn by the respondent matching the broken glass at Lindisfarne, and (c) the evidence as to DNA matching the respondent's DNA being on the sunglasses, was that there was no rational hypothesis consistent with the respondent's innocence, and that the charges against him were therefore all proven beyond reasonable doubt.
But the learned magistrate reached a different conclusion. He considered separately the evidence relating to the glass fragments, the sunglasses, and the stolen property. So far as the glass fragments were concerned, the respondent gave evidence before the learned magistrate that he had gone to sleep in the flat at 6 Lenna Street; that he had woken up in the early hours of the morning; that he had been unable to find his own shoes; and that he had put on a pair of shoes that he found in the flat, which he was still wearing when the police met him and arrested him. The learned magistrate considered that evidence and decided that he could not reject that account of events as a reasonable possibility.
In relation to the sunglasses, the respondent gave evidence that he had not been at the supermarket where they were found, but that he would sometimes put on other people's sunglasses. So the magistrate considered the possibilities that the respondent might, somewhere, somehow, have put on the sunglasses that later turned up at Woolworths in Campbell Street, and decided that he could not rule out the correctness of that evidence.
So far as the presence of the stolen property in the same place as the respondent was concerned, the learned magistrate took the view that a finding that the respondent had possession of that property was an indispensable step in the reasoning that could lead to a conviction. He referred to the case of Shepherd v The Queen (1990) 170 CLR 573. As to that property, the respondent gave evidence before the learned magistrate to the effect that he did not bring it there. His case was that it was brought there by others, and that they had fled. One of the police officers, Sgt Callinan, gave evidence that he saw another man flee from the garage or shed where the stolen property and the respondent were found. And he accepted that it was possible that yet another man had fled without him seeing that other man flee. The learned magistrate considered the evidence in relation to the stolen property in isolation from the other evidence, and concluded that he could not be satisfied beyond reasonable doubt that it was the respondent, rather than someone who had fled, who had possession of the stolen property.
So, having come to those conclusions, looking at the evidence as to, first, the glass fragments, and then the sunglasses, and then the stolen property, in isolation – and each body of evidence in isolation from the others – the learned magistrate concluded that the burglary and stealing charges were not proved beyond reasonable doubt. Having reached that conclusion, he concluded that he could not be satisfied beyond reasonable doubt of the respondent's guilt in relation to the motor vehicle stealing charges. In particular, he considered that it was possible that the sleeping bag cover found in the same place as the respondent could have been brought there by someone else who had fled.
In relation to circumstantial evidence, there are some important principles that have been discussed by the High Court. In Chamberlain v The Queen (No 2) (1984) 153 CLR 421 at 535, Gibbs CJ and Mason J said:
"Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278, at p 279 …".
In the same case, Brennan J said at 599:
"An inference of guilt may properly be drawn although any particular primary fact, or any concatenation of primary facts falling short of the whole, would be insufficient to exclude other inferences. It follows that the insufficiency of a piece of evidence to support an inference of guilt does not by itself warrant the setting aside of a verdict of guilty if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference."
The inference that the prosecution was asking the learned magistrate to draw was an inference that the respondent was one of the three thieves who burgled and stole from the two supermarkets. The learned magistrate, in my view, took an incorrect approach – the sort of incorrect approach referred to in the passages I have just quoted from Chamberlain's case – by looking at particular bodies of evidence in isolation, and deciding that conclusions adverse to the respondent could not be drawn from the pieces of evidence that he looked at in isolation. He should have looked at the whole of the evidence concerning property at the Lenna Street premises, the glass fragments, and sunglasses with DNA on them, and considered whether it could properly be inferred from all of that evidence that the respondent was one of the three thieves.
There is another important passage in the case of Shepherd v The Queen (above), where Dawson J described a different process of reasoning, at 579:
"On the other hand, it 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, vol9 (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."
As with Chamberlain's case, the principles discussed have to be applied by magistrates, just as they should be applied by juries. So it is necessary to consider whether any of the intermediate conclusions that were considered and rejected by the learned magistrate were indispensable ones that had to be established beyond reasonable doubt before the ultimate inference of guilt could be drawn.
In my view, this was not such a case. It is useful to consider an example of a case where there was such an indispensable link. In Wallis v Tasmania [2007] TASSC 4, the appellant had been found in possession of stolen property that matched property taken in a number of burglaries. There was little evidence to suggest that he had committed the burglaries rather than receiving stolen property after the burglaries. At the site of one of the burglaries, a cigarette butt was found, and there was evidence that DNA matching that of the appellant was found on that cigarette butt. At [66] Crawford J (as he then was) explained that there was an indispensable link in the chain of reasoning in that case. He explained that the jury should have been directed that they could only find the appellant guilty of burglaries at other locations if they were satisfied beyond reasonable doubt that he had committed the burglary at the place where the butt was found. It was only if that was established that it might then have been open to the jury to infer, because of similarities in the circumstances of the burglaries, that the same offender had committed a number of other burglaries.
This is not such a case because, in my view, it was open to the learned magistrate to consider the whole of the uncontroversial circumstantial evidence, and, without drawing any intermediate conclusion, reach a conclusion of guilt.
The undisputed evidence quite clearly established that there were three offenders using two stolen Subarus who committed both burglaries. It was an agreed fact that there were three offenders at each place. The closed circuit television footage showed that the three at one supermarket were dressed in the same way as the three at the other. They used the same mode of entry. One burglary was at 2.54am, and the other at approximately 4.25am. The two Subarus had been stolen before the burglaries. They were filmed on Franklin Street at Lindisfarne going the wrong way along a one-way street at about 4.13am. They were found burnt out not far away – one at approximately 4.25am and one at 4.50am. The sleeping bag from one of the stolen Subarus was used to collect stolen property in one of the burglaries. And the sleeping bag cover was found with some of the stolen property at the Lenna Street address. So there was compelling evidence that the two burglaries and the use of the two stolen cars were matters for which the same people were responsible.
It is important to note that a charge of motor vehicle stealing under s 37B of the Police Offences Act 1935, although it is called "motor vehicle stealing", involves not just the taking of a motor vehicle, but also the unlawful use of a motor vehicle. So, even if the respondent had nothing to do with the taking of the vehicles when they were taken before the burglaries, if he was one of the burglars, and if the burglars used those two stolen vehicles, then that makes him guilty of the offences of motor vehicle stealing. So whoever burgled the two supermarkets and used the two Subarus was guilty of the six offences with which the respondent was charged.
In addition to the non-incriminating evidence, there was evidence that the respondent was wearing the shoes; that they were of such a size that he was able to put them on; that there was glass matching the Woolworths Lindisfarne broken glass on each shoe; that his DNA matched the major profile found on the sunglasses, found on the floor at Campbell Street right where the thieves had been; that the property from the Lindisfarne store was found with the sleeping bag cover and the metal bar at the shed or garage building in which the accused was found; and that that was a different building from the place where he had been sleeping, and where he said he found the shoes.
Alone, neither the evidence about the glass, nor the evidence about DNA on the sunglasses, nor the presence of the stolen property, might have warranted a conclusion of guilt. But the question that should have been asked is whether there was any rational hypothesis that was consistent with the respondent's innocence: Chamberlain v The Queen (No 2) (above) at 535. A hypothesis, to be consistent with the respondent's innocence, would have to have these characteristics:
·     First, that at least one of the thieves visited the Lenna Street property and brought the stolen property and the pinch bar inside the shed.
·     Second, that the respondent happened to be sleeping in the flat some metres away.
·     Third, that one of the thieves happened to go into the flat, remove a pair of shoes, and leave them there.
·     Fourth, that the respondent happened to put on that pair of shoes.
·     Fifth, that they happened to fit well enough for him to wear them.
·     Sixth, that he happened then to go to the place where the stolen property was.
·     Seventh, that his DNA happened to be on sunglasses that were not his, that happened to be on the floor of the Campbell Street supermarket, at the very place where the thieves had been.
If anyone considers a hypothesis embodying that combination of circumstances, I think the only sensible conclusion is that that is not a rational hypothesis. The chances of that combination of circumstances occurring are so remote that any such hypothesis should be rejected as too far-fetched.
In my view, the learned magistrate erred by not asking himself the correct question, and not considering the combination of facts that were uncontroversial and had been established.
But I go further than that. A finding of fact by a magistrate cannot be overturned on a motion of this nature, unless it is a finding that no magistrate could reasonably have made: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46].
In my view, once one analyses the uncontroversial evidence, it is clear that no reasonable magistrate could have considered that there was a rational hypothesis consistent with the respondent's innocence. It follows that the only appropriate conclusion is that each of the charges was proved beyond reasonable doubt. The circumstances established beyond reasonable doubt that the respondent was one of the three thieves, and, for the reasons I have stated, it follows that he was guilty of all the six charges.

For these reasons, I allow the motion to review, set aside the order dismissing the charges, and substitute a determination that each of the charges is proved.