Burgoyne v The Queen

[2021] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

BURGOYNE v THE QUEEN

[2021] SASCFC 9

Judgment of The Court of Criminal Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Doyle)

5 February 2021

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED

This is an appeal against conviction of two counts of aggravated robbery pursuant to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).

The appeal is against the verdict of the trial Judge on the basis that the finding of guilt was unreasonable and/or cannot be supported having regard to the evidence.

The appellant was convicted of two counts of aggravated robbery which occurred in the early hours of the morning of 19 May 2019 at the Great Northern Hotel in Port Lincoln.  The appellant entered the hotel shortly before 2.00 am armed with a knife and stole cash from the till, a tin containing cash and other items, the purses of the duty manager and a customer, as well as the customer’s mobile phone. 

At trial, the prosecution led circumstantial evidence of a perceived similarity in the voice, accent and appearance of the appellant, though no direct identification evidence was led.

The appellant contends this evidence was incapable, both of itself and in combination with the other evidence, of establishing the identity of the appellant as the robber.  Furthermore, the appellant complains that the trial Judge’s findings as to the appellant’s explanation of how he came into possession of certain inculpatory items were insufficient and could not exclude, as a reasonable possibility, the appellant’s account.

Held per Kourakis CJ (Stanley and Doyle JJ agreeing), dismissing the appeal:

1.The evidence of similarity in appearance and voice was incapable of establishing Mr Burgoyne as the robber, although it may, in combination with other circumstances, support that conclusion.

2.The short time between the robbery and the use of the identities to fraudulently purchase items compounds the improbabilities that the appellant found the items.

3.The improbability of the robber discarding the purses and licenses at all, having specifically asked for them, and at a location where they might be seen, is more consistent with the prosecution case that the robber had in mind a criminal use for those items.

4.The possession of the cash tin and cash strongly supports the conclusion that the appellant committed the robbery. 

5.Little weight can be given to the appellant’s exculpatory answers or to the fact that the appellant was of aboriginal descent.

6.No regard can be had to the complainant’s reaction to hearing the appellant’s voice in the service station.

Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v Burgoyne [2020] SADC 121, discussed.

BURGOYNE v THE QUEEN
[2021] SASCFC 9

Court of Criminal Appeal:       Kourakis CJ, Stanley and Doyle JJ

1. KOURAKIS CJ:     Mr Burgoyne appeals against his convictions on two counts of aggravated robbery entered in the District Court following a trial by judge alone.  The first of the offences was committed by the taking of cash, a cash tin and the purse of an employee at knife point.  The second was committed by the taking of the purse and mobile telephone of a customer.  The only ground of appeal is that the conviction is unreasonable and cannot be supported having regard to the evidence.  In particular, Mr Burgoyne complaint is twofold.  First, that evidence of similarities between his and the robber’s voices, and their physical appearances, was equivocal.  Second, that his possession of some of the proceeds of the robbery was insufficient, in the context of the evidence as a whole, to exclude as a reasonable possibility that he had found those items only after the offender had discarded them. 

2. I would dismiss the appeal.  The short period of time between the commission of the offences and Mr Burgoyne’s fraudulent use of the drivers’ licences which were in the purses, his possession of the cash tin and a substantial quantity of bank notes excludes any reasonable possibility that another person committed the robbery.  I elaborate on my reasons below.

   The evidence

3. Just before closing time, at about 2:00 am on 19 May 2019, Ms SH, the duty manager of the Great Northern Hotel in Port Lincoln, was standing behind the bar.  A male came into the hotel from the rear entrance wearing a hooded jumper and something else masking his face.  He walked past a customer, Ms EF, jumped over the bar brandishing a large knife and demanded money from Ms SH.  The testimony of Ms SH and Ms EF, confirmed by CCTV footage, was that Ms SH gave the robber money from the till which he then placed in a bag which he had produced from under his clothing.  The robber demanded the nearby petty cash tin and Ms SH placed it in the bag.  He then asked Ms SH to open a cupboard beneath the bar, from which she retrieved her purse, which contained her driver’s licence and bank cards.  The taking of the cash from the drawer, the petty cash tin and Ms SH’s purse were the subject of count 1.

4. The robber then threatened to stab Ms SH if Ms EF did not hand over her purse and mobile phone.  Ms EF handed those items to the robber, who placed them in the bag.  The taking of Ms EF’s purse and mobile telephone were the subject of count 2.

5. Ms SH described that part of the robber’s face which she could see, despite the covering, as dark brown in colour.  The Judge’s observation of the accused’s skin colour was that it was also dark brown, the Judge noting that Mr Burgoyne appeared to be of aboriginal descent.  Ms SH also described the robber as having what appeared to be markings on his face.  The video tape record of Mr Burgoyne’s arrest appears to show some lines around his eyes.  Ms EF described the robber’s accent as a ‘slight aboriginal twang’. 

6. Ms SH, who is 165 cm tall, gave evidence that she did not have to tilt her head to make eye contact with the robber.  Mr Burgoyne is 170 cm tall.  However, there was no evidence about the height range which would naturally fall within the ordinary vision of a person at the distances between Ms SH and the robber during the course of the robbery.  Nonetheless, Ms EF’s testimony was that the robber was a bit taller than Ms SH. 

7. Ms EF described the robber as slim, but thought that he had something jammed under his jumper.  Mr Burgoyne weighed about 75 kilos at the time of his arrest.  The Judge’s assessment was that the CCTV footage of the robber showed someone apparently bulkier than Mr Burgoyne as he appeared from the dock.  The Judge accepted that this observation might be attributable to the loose fit of the clothes worn by the robber. 

8. Ms SH gave evidence that three days later, on 22 May 2019, she visited a service station and was waiting to be attended to by the cashier.  There was a man immediately in front of her at the counter.  They were the only two customers.  CCTV footage showed that the male customer in front of Ms SH was Mr Burgoyne.  Ms SH testified that the man in front of her ‘sounded just like the guy at the pub’ and that it ‘just sounded a lot like him’.

9. Ms SH testified that upon hearing Mr Burgoyne’s voice she broke down.  The CCTV footage, which it can be accepted was properly received to show that the male was Mr Burgoyne, also showed that Ms SH became upset.  She can be seen speaking to the employees, apparently explaining why she was upset.  Ms SH testified that when the male turned around she recognised him as Joe, who was a regular customer at the hotel and would come in on Saturdays.  Significantly, she never claimed to have recognised the robber as the regular customer she knew as Joe.  The prosecution did not lead the evidence of Ms SH as positive evidence of identification through the sound of Mr Burgoyne’s voice.  It could not.  Ms SH’s evidence was only that Mr Burgoyne ‘sounded’ like the robber.  Her testimony of similarity between the voices was an item of circumstantial evidence. 

10. Given the admission of the evidence only as an item of circumstantial evidence, it is doubtful that the evidence of Ms SH’s reaction to hearing Mr Burgoyne speak at the service station was admissible at all.  The reaction of a witness who makes an out‑of‑court identification may be admissible in support of the in-court identification, but that is not this case.  In determining whether the evidence is capable of supporting the conviction, I put to one side altogether, and have no regard to, the evidence of Ms SH’s reaction. 

11. In summary, therefore, there is some evidence of similarity in physical appearance and sound of voice between Mr Burgoyne and the robber.  Indeed, it is likely that the robber and Mr Burgoyne were both members of Port Lincoln’s aboriginal community.  Of course, it is likely that there may be a number of aboriginal men in Port Lincoln who are a little over 165 cm tall and of slim to average build.  Nonetheless, it can be inferred that Mr Burgoyne and the robber are both members of a minority subset of Port Lincoln males.  The similarities between Mr Burgoyne and the robber are therefore of some, but limited, probative weight. 

12. Mr Burgoyne did not give evidence. 

13. Some facts were agreed and recorded in writing and received as an exhibit.  It was agreed that there was $1,833.00 in cash in the till, comprising two $100 notes and twenty-four $50 notes.  The petty cash contained approximately $900.00 in cash, some receipts and bingo tickets.

14. In May 2019, the accused lived at Unit 1/13 Cardiff Road (the Cardiff Road unit) in Port Lincoln with his partner, Chloe Sampson.  Ms Sampson’s parents lived at 19 Heather Road, Port Lincoln (the Heather Road address).  Mr Burgoyne’s parents lived at Unit 1/35 Knott Street in Port Lincoln (the Knott Street unit).  Mr Burgoyne had keys to that address.

15. After the robbery, the police were informed that parcels had arrived at the Port Lincoln post office addressed to Ms SH at a residential address which was not hers.  The police seized five parcels from the post office on 22 May 2019 and a sixth on 23 May 2019. 

16. In all, the following mobile telephones, and associated services, were ordered using the drivers’ licences of Ms SH and Ms EF:

    ·12:05 pm Sunday 19 May 2019 (within 10 hours of the robbery) – Optus registered a prepaid mobile service for a customer, identified as Ms SH but said to be resident of the Heather Road address.  (The device connected to that service found by police under a cushion in the Knott Street unit).

    ·3:07 pm Sunday 19 May 2019 – Optus registered two new mobile phone services in the name of Ms EF, with a billing address at the Knott Street unit, and dispatched two smartphone devices to the Port Lincoln post office for collection.   (The parcel was intercepted by police on 22 May 2019).

    ·5:35 pm Sunday 19 May 2019 – Optus registered a mobile phone service in the name of Ms SH, and dispatched a smartphone device to be delivered to the Heather Road address. (The parcel was intercepted by police on 22 May 2019 and the smartphone was later found under a cushion at the Knott Street unit).

    ·9:50 pm Sunday 19 May 2019 – Telstra registered a mobile phone service in the name of Ms SH, said to reside at the Heather Road address, and dispatched a smartphone to that address.  (The parcel was intercepted by police on 22 May 2019).

    ·8:53 am Monday 20 May 2019 – Telstra registered a mobile phone service in the name of Ms EF, using Ms EF’s correct address but giving the Knott Street unit as the billing and delivery address.  The person ordering the service provided as a contact the telephone number of Ms Sampson’s mother.  Telstra dispatched a smartphone device for delivery at the Knott Street unit.  (The parcel was intercepted by police at the post office on 22 May 2019).

    ·8:59 am Monday 20 May 2019 – Telstra registered a mobile phone service in the name of Ms EF.  Ms EF’s address was correctly recorded but the Knott Street unit was given as the billing and delivery address.  Ms Sampson’s mother’s telephone number was given as a contact address.  A smartphone device was dispatched to the Knott Street unit but intercepted by police on 22 May 2019.  (It was intercepted by police and an undercover police officer delivered it on 23 May 2019 to Chloe Sampson). 

    ·9:01 am Monday 20 May 2019 – Telstra registered a mobile phone service in the name of Ms EF.  The contact number given was that of Ms Sampson’s mother.  The billing and delivery address provided was the Knott Street unit.  A smartphone device was dispatched to the Knott Street unit but was intercepted by police on 22 May 2019.  (It was later delivered to the Knott Street unit by an undercover police officer on 23 May 2019). 

17. Neither Ms SH nor Ms EF had any reason to nominate the Knott Street unit or the Heather Road address as a delivery or billing address for anything they ordered. 

18. On 23 May 2019, Mr Burgoyne attended the Services SA office in Port Lincoln and procured a label to attach to his proof of age card, which recorded his address as the Knott Street unit. 

19. When an undercover police officer delivered two of the intercepted parcels to the Knott Street unit on 23 May 2019, Mr Burgoyne was smoking a cigarette on the deck.  He called out to Ms Sampson, who came out of the house and signed an acknowledgement accepting the parcels addressed to Ms EF.

20. Police returned about 15 minutes later and arrested the accused.  On a search of the Knott Street unit, police located:

    ·The petty cash tin stolen in the robbery hidden in the backyard.  A fingerprint of a left index finger was found on the cash tin.  Mr Burgoyne could not be excluded from having left that impression.  However, it should be noted that the robber wore gloves.

    ·Ms EF’s driver’s licence with a change of address stuck on the back nominating the Knott Street unit.  (An inference could be drawn that the change of address sticker which had been attached to Mr Burgoyne’s licence had been removed and placed on the rear of Ms EF’s driver’s licence).

    ·Under another cushion was a Samsung mobile phone, the number for which had been ordered in the name of Ms SH on 19 May 2019, registering an address at the Heather Road residence of Ms Sampson’s parents.

    ·In an orange canister on the kitchen counter were Ms EF’s medicare card and the medicare card and driver’s licence of Ms SH.

    ·In the master bedroom were wrappings from the parcels which had been delivered by the police, and on the top of cushions on a couch were two unopened boxes containing mobile telephones.

    ·On a search of Mr Burgoyne’s Cardiff Road address police found eleven $50 notes in a glass jar. 

21. The purses of Ms SH and Ms EF were never located.  Nor were the contents of the purses, other than the drivers’ licence and medicare cards.  Ms EF’s mobile phone was never recovered. 

22. Mr Burgoyne was interviewed by the police.  He admitted ordering the telephones found at, and delivered to, the Knott Street unit, but denied committing the robbery.  Mr Burgoyne was told that he was under arrest for aggravated robbery at the Great Northern Hotel on about 2.00 am on Sunday 19 May 2019.  When Mr Burgoyne was told that mobile phones purchased using the stolen credit cards and identities had been delivered to the Knott Street unit, he responded, ‘I will tell you straight out where they are from, we went for a walk that morning and I found stuff’.  Presumably Mr Burgoyne meant the morning of 19 May 2019.  He later explained that he went on the walk in the early hours of the morning, and that he and his partner ‘go for walks now and then’.  The cards located at the Knott Street unit came from the purses of Ms EF and Ms SH, however, Mr Burgoyne told police ‘I found stuff that morning and all I found was a purse and a phone’.  It is difficult to see why the robber would have consolidated the contents of the purses.  Mr Burgoyne admitted to ordering the phones but denied the robbery, saying to police, ‘I did not do that robbery.  I don’t do that shit man I got a little family’.

23. Mr Burgoyne did not volunteer that he had the cash tin.  It was located by police after his arrest.  Mr Burgoyne was told that he might be asked about it when it had been examined but no evidence of a subsequent interrogation was led. 

    The Judge’s reasons

24. The reasons the Judge gave for convicting Mr Burgoyne were:

    [82]Notwithstanding the limited opportunity the victims had to observe the robber, there are observations which are consistent with the accused.  Consistency is not to equated with proof but inconsistency may be exculpatory.  Inconsistency may raise a doubt.

    [83]The robber’s height was similar to that of the accused.  Ms [SH]’s description of the robber’s skin as dark brown is consistent.  I put aside the observations of Ms [SH] about seeing marks on the robber’s face because I would not describe the accused’s eyes, as shown in the arrest video, as having marks about them.  On the other hand, I do not accept Ms Mansfield’s description of the skin around the eyes being clear.  There are what I would describe as lines around the eyes.

    [84]I accept Ms [EF]’s evidence that the robber appeared to her to be slim but there was padding around his torso.  The accused is slim.

    [85]I give some weight to Ms [SH]’s voice recognition evidence.  She had an observable physical reaction to hearing the accused’s voice in the OTR.  Ms [EF]’s observation of the robber’s “slight aboriginal twang” is consistent with both the accused’s aboriginality and the mode of speech in the arrest video.

    [86]Of greater significance is the unlikelihood of the accused coming upon the identity cards of the victims as he says he did.  The accused’s productive use of those cards shows how unlikely it would be for the robber to discard them.  While the accused makes no admission about taking possession of the cash tin, I find that the location of the cash tin hidden in the back yard of Knott Street is powerful evidence of his putting it there.  I think it unlikely that the accused would take possession of the empty cash tin on his walk.  The cash tin would be a highly inculpatory item to take possession of it if [it] had no inherent benefit.  The identity cards were of benefit but the tin was not.

    [87]I do not accept the defence submission that the robbery was a sophisticated crime whereas the mobile phone ordering was unsophisticated.  I think both required some sophistication.  Nor do I accept that the robber’s interest in the safe excludes the accused.  It would be unremarkable for a member of the public to think there might be a safe in the hotel even if it was not in open view.

    [88]I give limited weight to the $550 in $50 notes found in the accused’s bedroom.  It is true that this sum is much less than that stolen from the hotel but the discovery of the $550 was some three days after the robbery.

    [89]I am satisfied beyond reasonable doubt that the accused committed the two robberies.

    Analysis

25. It was not disputed by Mr Burgoyne that he and/or Ms Sampson had used the drivers’ licences of Ms SH and Ms EF to contract for the mobile phone services and order the telephones.   Leaving aside for now the question of timing and whether the robber would have discarded the drivers’ licences, the evidence of the steps they took to obtain, and their possession of, the telephones does not advance the prosecution case that Mr Burgoyne was the robber.  The critical question is whether the prosecution has proved beyond reasonable doubt that Mr Burgoyne was the robber.  The evidence of similarity in appearance and voice between Mr Burgoyne and the robber is incapable of doing so without more, although it may, in combination with other circumstances, support that conclusion.

1. The most significant of those circumstances is the improbability of the robber discarding the purses and licences at all, and at a location where they might be seen by early morning walkers in particular.  The robber, who specifically asked for the purses, notwithstanding the substantial amount of cash taken from the till and cash box, is likely to have had in mind the fraudulent use of the personal identification and credit cards, which the purses were likely to contain.  They are likely to be kept or sold to another for that purpose.  Additionally, if purses or cards are to be disposed of, it is more common to hide them in a bin or under vegetation to obstruct or delay any police investigation than to leave them in open view.

2. Next, the possession of the cash tin strongly supports the conclusion that Mr Burgoyne committed the robberies.  It is implausible that the robber would have left anything of value in the cash tin, and equally implausible that Mr Burgoyne would carry back an empty cash tin to the Knott Street unit.  If he had some use for an empty cash tin around the home there was no point in hiding it. 

3. I interpolate here that little evidential weight can be given to Mr Burgoyne’s exculpatory answers because of his failure to say where he found the items, his reference to only one purse and his failure to mention the cash tin.

4. Mr Burgoyne’s possession of a number of $50 bank notes within days of the robbery adds some, limited, weight to the circumstantial case against him.

5. Next, there is the circumstance that Mr Burgoyne and the robber are both members of a relatively small section of the Port Lincoln population who are males of aboriginal descent, around 170 cm tall and of slim to medium build.  Again, these similarities add some, but very limited, probative weight to the conclusion that Mr Burgoyne was the robber.

6. The relatively short time between the robbery and the use of Ms SH’s driver’s licence by Mr Burgoyne compounds the improbabilities of Mr Burgoyne having found items discarded by the robber to which I have already referred.  To be in a position to find property discarded by the robber, and to use it by some time before 12.05 pm, Mr Burgoyne must have found the purse(s), as he himself recognised in his answers to police, in the early hours of the morning.  The possibility of Mr Burgoyne finding items discarded by the robber reduces over time as the morning progresses because of the prospect of a more honest resident of Port Lincoln finding them and returning the items to the rightful owners or the police.  Moreover, if it were a chance finding, Mr Burgoyne must have resolved to act dishonestly and formulated and implemented his scheme very quickly.  Mr Burgoyne’s account, therefore, presents the improbable hypothesis that he, as a person bearing similarities to the robber, was the first person to find the purses discarded by him, but nonetheless was prepared to, and acted quickly, in putting the drivers’ licences to a criminal use.  On the other hand, the robber, having had schemes of this kind in mind when he demanded the purses of Ms SH and Ms EF, is likely to act promptly following the robbery.  It is therefore relatively more probable that Mr Burgoyne was in possession of the drivers’ licences and other items by midday because he was the robber than by reason of a chance finding on an early morning walk.

7. I am satisfied that the totality of the evidence adequately supports the Judge’s verdict.  There is no reason to doubt Mr Burgoyne’s guilt.

8. I would dismiss the appeal. 

9. STANLEY J:   I would dismiss the appeal.  I agree with the reasons of Kourakis CJ. 

10. DOYLE J:       I agree with the reasons of the Chief Justice, and would dismiss the appeal.