Chifuntwe v The Queen

[2018] ACTCA 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Chifuntwe v The Queen

Citation:

[2018] ACTCA 12

Hearing Date:

12 February 2018

DecisionDate:

24 April 2018

Before:

Murrell CJ, Mossop and Wigney JJ

Decision:

The appeal is allowed. On the charge of robbery, the verdict of guilty is set aside and a verdict of not guilty is entered.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against guilty conviction – Whether the decision at trial was unreasonable – Whether the decision at trial was unsupportable by the evidence – The rule in Browne v Dunn – Whether all reasonable hypotheses consistent with innocence excluded

Cases Cited:

Browne v Dunn (1894) 6 R 67

Jones v The Queen (1997) 191 CLR 439

Knight v The Queen (1992) 175 CLR 495

M v The Queen (1994) 181 CLR 487

Mulvihill v R [2016] NSWCCA 259

MWJ v The Queen [2005] HCA 74; 80 ALJR 329

SY v R [2018] NSWCCA 6

The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308

Parties:

Kalonga Chifuntwe (Appellant)

The Queen (Respondent)

Representation:

Counsel

Ms E McLaughlin (Appellant)

Ms M Jones (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 29 of 2017

Decision under appeal: 

Court/Tribunal:            ACTSC

Before:  Elkaim J

Date of Decision:        15 June 2017

Case Title:                   R v Chifuntwe (No 2)

Citation: [2017] ACTSC 134

THE COURT:

The trial

1. Sitting as a judge alone, the trial judge found that, on 16 May 2016, the appellant committed the offence of aggravated robbery (robbery in the company of an unknown person).

1. The trial judge found the appellant not guilty of a second offence: that, on 18 May 2016, the appellant used an offensive weapon (the motor vehicle that he was driving) against a police officer intending to prevent or hinder his lawful apprehension. His Honour was not satisfied beyond reasonable doubt that the appellant had deliberately driven his vehicle at a police officer; rather, his primary intention may have been to flee the scene. His Honour found the appellant guilty of a backup charge of failing to stop a motor vehicle for police.

1. At the trial of the aggravated robbery charge, the contentious issue was whether the appellant was one of two men who had robbed the complainant of a Mercedes-Benz vehicle. The prosecution case was circumstantial.

The appeal

1. The appellant appealed against the conviction for robbery in company on the sole ground that the finding of guilt was unreasonable and/or was not supported by the evidence.

1. In written submissions, the appellant advanced three principal arguments:

(a)Because of non-compliance with the rule in Browne v Dunn (1894) 6 R 67 (Browne v Dunn), the trial judge should not have made negative credit findings about the appellant’s evidence.

(b)Two circumstances upon which the trial judge relied in finding that the appellant was one of the robbers were inherently of little or no probative value.

(c)Taken together, the established circumstances were insufficient to exclude a reasonable hypothesis of innocence.

1. At the hearing of the appeal, the submissions focused on the third argument. The appellant noted that the Court was required to independently examine the evidence and, allowing for the advantages enjoyed by the trial judge, was to decide for itself whether the evidence supported the conviction: Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487. The appellant said that, having regard to the trial judge’s findings about the credit of the witnesses (including the appellant), in assessing the strength of the case against the appellant his Honour enjoyed few advantages over this Court.

1. The appellant submitted that the established circumstances fell short of establishing the offence beyond reasonable doubt; it was not possible to exclude the reasonable hypothesis that the robbery was committed by another person and that the appellant was merely a receiver of the stolen vehicle. The appellant conceded that the only hypothesis consistent with innocence was that he had received the Mercedes-Benz vehicle knowing that it was stolen.

Prosecution evidence at the trial

1. On the appeal, the appellant did not dispute the following facts.

1. In the early hours of 16 May 2016, the complainant, a man of African origin and appearance, was asleep in the rear seat of his Mercedes-Benz vehicle. The vehicle was parked in a car park. The complainant was awakened to the sounds of people walking around the vehicle.  They banged on a window and then smashed the driver’s side windows.

10.  The complainant saw two men, a white man and man of African appearance, whose skin (according to the complainant) was darker than his own.  The assailants shouted at the complainant.  The Caucasian man pointed a gun at him. The complainant saw that the African man was wearing a white hat, which the complainant also said was a “black polo (cap)” with a “front”. Of the African man, the complainant said that he “maybe had a bit of hair in the face…if I see him I may recognise him.”

11.  The complainant opened a car door and fled. As he was running from the scene, one of the assailants shouted, “where is the key?” The complainant replied, “in the car”. The assailants drove away in the complainant’s vehicle. In his haste to leave the scene, the complainant left possessions in the car, including his wallet. The complainant did not recall that there was a hat or cap in the vehicle when it was stolen.

12.  At 9:30 pm on 18 May 2016, the complainant’s vehicle was located by plainclothes police officers in a car park at the Charnwood shops. Its ACT registration plates had been changed to NSW registration plates. The vehicle was being driven by a man of African appearance who was wearing a white cap. There was a passenger in the car. The police attempted to block the vehicle with their vehicle.  They directed the driver to “[s]top; police”, but the vehicle drove away. This incident was the subject of the charge of using an offensive weapon (the vehicle) to prevent lawful apprehension of which the appellant was acquitted.

13.  About 20 minutes later, the vehicle was intercepted by other police officers. The appellant was driving it. A Caucasian man, Mr Jayden Gardner, was a passenger in the vehicle.  One of the officers observed that the appellant had a goatee beard.  Inside the vehicle, the police located a white cap.  The words “Stussy International” were prominently displayed in blue lettering on the front of the cap.

14.  When he was apprehended, the appellant was wearing a bum bag that contained possessions belonging to the complainant: the Mercedes car key, two bank debit cards, an ACT driver’s licence, a rewards card, a Medicare card and some money in note form from Malawi and Zambia.

15.  The complainant said that the African assailant may have been an African-American man whom he had met three days prior to the robbery. During an identification procedure involving photographs of African men, the complainant did not identify the appellant or anyone else as the African assailant.

Defence evidence at the trial

16.  The appellant gave evidence that he had possession of the car for three or four hours before it was intercepted by police. He said that he had purchased it for about $400.00–$500.00 and “something else” from a “friend’s friend”, a man of Caucasian appearance. The transaction had occurred when he met the vendor at his friend’s home in the Richardson/Chisholm area of Canberra.

17.  The appellant said that, at the time when he purchased the vehicle, he knew that it was stolen. It had a broken rear window. Within the vehicle console and glove box, he located items that he put in his bag, including the cards that belonged to the complainant.

18.  The appellant agreed that the white cap in the car was his cap.  He said that, when he acquired the vehicle there had been a “big rack of hats like probably…30 hats on it” in the back of the car.

19.  The appellant denied any knowledge of the robbery. He said that, at the time of the incident, he had been “messed up on drugs”.

Trial judge’s approach to the prosecution’s circumstantial evidence case

20.  The appellant made no complaint about the trial judge’s articulation of the correct approach to a circumstantial evidence case.

21.  Importantly, at [27] the trial judge observed:

I must determine whether there is any other reasonable conclusion arising from [the established facts] that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied of the accused’s guilt beyond reasonable doubt.

22.  At [29] the trial judge noted that he was guided by the High Court decision of R v Hillier [2007] HCA 13; 228 CLR 618 and in particular paragraphs [46], [47] and [48]. In those paragraphs, the High Court further explained the correct approach to a circumstantial evidence case.

23.  In returning a verdict of guilty, the trial judge relied upon the following four circumstances, particularly circumstances (a) and (b), at [74], [83] and [84] of his decision:

(a)On 18 May (two days after the robbery), when the complainant’s vehicle was located by police, the appellant was driving it. 

(b)When he was apprehended on 18 May, the appellant was wearing a bum bag containing the complainant’s possessions that had been in the vehicle when it was stolen.

(c)Like one of the assailants, the appellant was a man of African appearance whose skin was darker in colour than that of the complainant. On 18 May, the appellant had a goatee beard and the complainant thought that the African assailant had had some facial hair.

(d)The African robber wore a white cap.  On 18 May there was a white “Stussy International” cap that belonged to the appellant in the vehicle. According to the complainant, at the time of the robbery the cap was not in the vehicle.

24.  Although the trial judge did not expressly refer to this matter, a further and obvious circumstance that his Honour would have had in mind was that, at least by 18 May, the appellant knew that the vehicle had been stolen. The appellant admitted as much in evidence.  In any event, given the circumstances pertaining to the vehicle itself (the damage to the vehicle’s windows and the price for which it was purchased) and the evidence of flight when the vehicle was first approached by police, there was an inescapable inference that by 18 May, the appellant knew that the vehicle had been stolen.

The trial judge’s consideration of the circumstantial evidence

25.  The appellant submitted that the circumstances of physical similarity and the wearing of a white cap (circumstances (c) and (d) above) that may have suggested that the appellant was the African robber were of almost no probative value and should have been accorded almost no weight by the trial judge.

26.  It is clear from the trial judge’s reasons that his Honour was well aware of the limitations attaching to the circumstantial evidence of similarity in appearance and similarity in relation to the wearing of a cap. At [78], his Honour noted that persons of African appearance are not rare. At [79], his Honour said:

Facial hair is not uncommon and, on its own, is a factor of little weight. The same might be said for the wearing of a white cap.

27.  Like the trial judge, despite those limitations, we consider that circumstances (c) and (d) were of some significance.

Evidence of physical similarity

28.  We accept that “African” appearance is a very general description.  Africa is a large continent with a varied population. Further, as the trial judge observed, persons of African appearance are not a rarity in the Canberra community.  The complainant was himself a man of African appearance.

29.  The complainant gave no indication of the type of facial hair that the assailant may have had.  He was somewhat equivocal about whether the assailant had any facial hair at all.  We agree with the trial judge’s observation at [79] that facial hair is not uncommon and, on its own, it is a factor of little weight.

30.  Individually, the features of “African” appearance and facial hair are of little significance, but when combined they are of some significance; they show consistency of appearance between the African assailant and the appellant, albeit that the evidence falls far short of positive identification.

Evidence about the cap

31.  The appellant submitted that the differences between the assailant’s cap (as described by the complainant) and the cap found in the appellant’s possession meant that the cap evidence was of little probative value. In particular, the complainant did not refer to lettering that was consistent with the prominent blue “Stussy International” lettering on the cap that was found in the appellant’s possession. Further, in his evidence the complainant referred to what may be a particular and different type or brand of headwear (“polo”) and accepted that the assailant’s cap or hat may have been either black or white.

32.  With the benefit of hindsight, it is unfortunate that the complainant was not asked to reconcile his reference to a white hat (or cap) with his reference to a black Polo (or polo) cap and that he was not asked whether he observed any lettering on the cap worn by the African assailant.  However, given the complainant’s limited opportunity to observe the African robber and the circumstances in which he did so, there is every chance that, had he been asked, he would have been unable to give a more precise description of the cap worn by the assailant.

33.  The evidence about the cap is of some significance. It is evidence that the appellant possessed a cap that could be consistent with the cap described by the complainant, and that, when he was seen by the police two days after the robbery, he was wearing the cap.

Evidence said to create a doubt that the appellant was the robber

34.  The appellant referred to several aspects of the prosecution evidence that were said to be circumstances casting doubt on the conclusion that the appellant was the robber.

35.  A circumstance by circumstance analysis of the prosecution case is unhelpful. The correct approach is to consider whether, when the established circumstances are taken as a whole, the only available reasonable (or rational) inference (or hypothesis) is that the appellant is guilty. Nevertheless, we will deal briefly with the appellant’s criticisms of various circumstances.

Complainant’s failure to make a positive identification

36.  The appellant submitted that the complainant’s failure to identify the appellant as the robber when the complainant participated in a photo identification procedure was a circumstance that suggested that the appellant was not the robber.

37.  The appellant relied on the complainant’s statements that he had been physically close to the African assailant and had spoken to him.  In the course of evidence, the complainant said that, if he saw the assailant, he “may” recognise him.

38.  At [42] the trial judge noted that there was little challenge to the complainant’s evidence in the trial.  His Honour accepted it entirely. At [85]–[86], the trial judge said:

I do not think [the complainant’s] inability to identify the accused in a photographic parade is significant. [The complainant] had been asleep in his car and was awakened by loud noises and heard threats that he might be shot. The lighting was poor and he was concerned to leave the vehicle as soon as possible. His capacity to have formed a reliable impression of the identity of the African man was limited.

For the same reasons I do not think [the complainant’s] recollection of an African-American man assists the defence.

39.  We agree with these observations. Indeed, had the complainant made a positive identification during the photograph identification procedure, the reliability of that identification may well have been questioned.

40.  The inability of the complainant, a reliable witness, to make a positive identification although he had said that he “may” be able to do so does not assist the appellant’s case. It is a neutral piece of evidence; it is not a relevant circumstance that informs a fact in issue.

Forensic evidence

41.  The appellant relied on the fact that, when the stolen vehicle was recovered, it contained items that were not connected to the appellant, Mr Gardner, or the complainant. There was forensic evidence that a black and brown cap located in the vehicle contained the DNA of a number of individuals, but that the material was not suitable for identification purposes and for that reason, could not be linked to the appellant or anyone else. 

42.  A fingerprint was developed from a soft drink bottle located in the front driver’s side door pocket, but there was no evidence that a connection was made to the fingerprints of known persons. 

43.  The forensic evidence suggests that a number of people may have been in the car. However, this piece of information is of little probative value in relation to the issue of whether the appellant was a robber or a receiver.

Items missing from the car

44.  Some of the complainant’s possessions that had been in the car when it was stolen were located neither in the vehicle nor upon the appellant when he was arrested on 18 May.

45.  The appellant submitted that this allowed a rational inference to be drawn that, after the vehicle was stolen, persons other than the appellant and Mr Gardner were inside the vehicle.

46.  By themselves, these circumstances establish very little. In particular, they do not assist in determining whether the appellant was the African robber or a receiver.

Time lapse

47.  The appellant submitted that the period of more than 62 hours between when the vehicle was stolen and when the appellant was located driving it allowed for the possibility that the appellant came into the possession of the vehicle otherwise than by stealing it.

48.  Of itself, this circumstance does not support a submission that the appellant was not the robber. However, we accept that it is a circumstance to be taken into account when determining whether, as a whole, the established circumstances are consistent only with the appellant being guilty of robbery.

The car was stolen from Campbell/Reid and was later located by police in Charnwood

49.  Given the time lapse between the robbery and the stolen vehicle being located, the fact that the vehicle was located some distance from where it was stolen is of little probative value.  It is consistent with the appellant being either the African robber or a receiver.

Trial judge’s findings on the appellant’s credit

50.  At [62], the trial judge observed:

The accused gave his evidence in a confident manner. There were no indications in his demeanour or manner of answering questions to suggest his evidence should be doubted at a prima facie level.

51.  At [87], the trial judge found:

I am satisfied on the Crown’s case of the guilt of the accused. In addition, I found the accused’s version about how he came to possess the vehicle to be particularly unconvincing, essentially for the reasons suggested by the Crown. I repeat them here:

(a)   Although one can understand a reluctance to incriminate other persons, this would not have extended to the accused’s friend at whose home he met the vendor of the vehicle.

(b)   The vagueness as to the identity of the friend and the friend’s friend stretched to the imprecision with which the accused nominated the location at which the vehicle was purchased.

(c)   The accused said that his initial intention was to “just to drive round in it but then I was going to sell it” (T 100.23). It seems quite extraordinary that $400 to $500, let alone “plus something else”, would be paid for a vehicle in order to drive it for a short period. Had the original intention been to resell the vehicle, the position may have been different.

Appellant’s submissions about breach of the rule in Browne v Dunn

52. The trial judge found that the appellant was an apparently credible witness. However, his Honour considered that the appellant’s version of how he came to possess the vehicle was “particularly unconvincing” for reasons (a), (b) and (c) set out at [87] of his Honour’s reasons: see above at [51]. In other words, his Honour found that, inherently, the appellant’s version of events was implausible.

53.  Matter (c) upon which the trial judge relied was that at the time that he purchased the vehicle, the appellant only intended to drive around in it for a short period, and did not intend to resell it. The appellant only decided to resell the vehicle after he had already purchased it.

54. In fact, when asked about his intention in purchasing the vehicle, the appellant gave evidence that “[his] intentions at the start was just to drive round in it but then [he] was going to sell it.” The trial judge took this statement to mean that it was only after he had purchased the vehicle that the appellant formed an intention to sell it: at [65].

55.  However, we consider that, while the appellant may have been asserting that he formed the intention to resell the vehicle at a later time, the evidence is ambiguous. The appellant may have been asserting that he intended to sell the vehicle from the outset.  His intent was not clarified.  Consequently, we consider that the trial judge erred in concluding that the appellant meant to convey that it was only some time after he purchased the vehicle that he decided to sell it. 

56.  The appellant submitted that matters (a) and (b) relied upon by the trial judge were not inherently implausible and that, in the absence of cross-examination, the trial judge should not have relied upon matters (a) or (b) to say that the appellant’s evidence lacked credibility.  The reliance on matters (a) and (b) was in breach of the rule in Browne v Dunn.

57.  As to (a) (vagueness as to the identity of the friend at whose home he met the vendor), when he gave evidence, the appellant was not asked in evidence-in-chief to name the friend.  As to (b) (vagueness as to the location where the vehicle was purchased), the appellant stated in evidence-in-chief that the vehicle was purchased in the Richardson/Chisholm area and he was not asked to provide further details.

58.  The cross-examination focused on the alleged transaction itself, including the identity of the alleged vendor of the vehicle (the friend’s friend).  The appellant was not cross-examined about the identity of his friend or the location of his friend’s home (where the vehicle was allegedly purchased).  In final submissions, the prosecutor referred only to the matters that had been traversed by the cross-examination, saying:

I would ask your Honour to reject [the accused’s] evidence of how he came to acquire this vehicle. His story does not ring with truth. He purchased this vehicle on his version from a friend of a friend, a person he could not describe, a person he could not name and a person he could not give any detail of nor the conversation that he had. I suggest, your Honour, that he cannot remember those details because they simply did not occur.

59.  The rule in Browne v Dunn is a rule of practice founded in the requirement of fairness: Mulvihill v R [2016] NSWCCA 259 (Mulvihill) at [153]. It is not a “hard and fast” rule and what is fair will depend upon how the issue arises: at [155]. In Mulvihill, the Court of Criminal Appeal found that there was no unfairness or breach of the rule because the appellant had been aware of the contentions that would be put; the prosecution had opened on the contentious points, another witness had given evidence about them and the appellant had otherwise been made aware of the matters that would be put by the prosecution and had had the opportunity to address them.

60.  In general, if the credit of the witness is to be challenged on a particular point, the ground of the challenge should be put to them in cross-examination so that they have an opportunity to explain or deal with the imputation that will be sought to made: MWJ v The Queen [2005] HCA 74; 80 ALJR 329 (MWJ) at [18] per Gleeson CJ and Heydon J, and at [38]–[39] per Gummow, Kirby and Callinan JJ. In MWJ, at [18], Gleeson CJ and Heydon J observed that the principle had to be applied with care when considering the conduct of the defence in a criminal trial. In the circumstances of that case, their Honours considered that defence counsel was not obliged to cross-examine on an apparent inconsistency in the complainant’s evidence when such cross-examination would run the risk of eliciting further evidence of uncharged criminal acts.

61.  Gummow, Kirby and Callinan JJ observed at [39]:

One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with [the rule in Browne v Dunn].

62.  In SY v R [2018] NSWCCA 6 (SY), the trial judge breached this corollary. The parties had agreed that there was no obligation on the defence to challenge the complainant’s credibility before submitting that the alleged offence did not occur and that the complainant’s version would be challenged simply on the basis that it was inherently improbable. The trial judge was advised of the agreement. Consequently, the complainant was not cross-examined to the effect that he had fabricated his evidence or was dishonest in any way. However, in her summing up, the trial judge implied that the defence should have put to the complainant that he was exaggerating or lying. At [62], Davies J (with whom Hoeben CJ at CL and Bellew J agreed) stated that, in the face of the agreement, it was an error for the trial judge to have make this suggestion to the jury.

63.  In the present case there was no agreement such as that which existed in SY which would preclude the application of the rule in Brown v Dunne or its corollary.  However, having regard to the nature of the Crown case, it must have been obvious to the appellant and counsel for the appellant that the appellant’s version of events was in issue.  The whole of the scenario of being a receiver of a stolen vehicle but not the robber was inconsistent with the Crown case and inconsistent with the guilt of the appellant on the charged offence.  In evidence-in-chief no attempt was made to be more precise about the identity of the appellant’s friend at whose home the appellant met the vendor of the vehicle or the location where the transaction occurred.  Such details would have made the evidence more credible.  The absence of any attempt to elicit further details in evidence-in-chief is likely to have been a forensic decision by counsel for the appellant.  In those circumstances we would therefore be reluctant to find that his Honour had breached the corollary of the rule in Brown v Dunne and precluded from making an adverse finding against the appellant in relation to points (a) and (b).  However, given that the sole ground of appeal is that the verdict was unreasonable or not supported by the evidence, the question of substance in this Court is not whether his Honour breached the corollary of the rule in Brown v Dunne by making a credibility finding based upon rejecting evidence that was not cross-examined upon but instead whether this Court considers that the evidence as a whole supported the conviction.  Thus the question is what this Court should do with the vague evidence of the appellant on points (a) and (b) in the light of the fact that the appellant was not cross-examined upon them.

64.  In our view, in assessing whether the Crown had excluded any reasonable hypothesis consistent with the innocence of the appellant, it is appropriate to take into account the vagueness of the appellant’s evidence on these two points.  The lack of cross-examination on those points means that it is harder to reach the conclusion that the evidence can be rejected beyond reasonable doubt.  In circumstances where there is a ground of appeal alleging that the verdict was unreasonable, it is necessary for this Court to consider all of the evidence.  Although the evidence given by the appellant on points (a) and (b) was vague and the appellant’s version of events was improbable, given the absence of any exploration of the evidence in cross-examination or some other reason for dismissing it, we do not consider that it is possible to rely upon those two points to reject the evidence of the appellant.

65.  As to matter (c) upon which the trial judge relied when rejecting the evidence of the appellant, the evidence was ambiguous and did not clearly carry the meaning which the trial judge attributed to it.

66.  Therefore when considering whether the verdict of guilty was unreasonable and unsupportable, we cannot reject the appellant’s evidence by relying solely on matters (a), (b) and (c) identified by his Honour.

Effect of appellant giving evidence

67.  As the appellant gave evidence, it is necessary to examine all the evidence—including the appellant’s evidence—to determine whether all reasonable alternative hypotheses that are inconsistent with guilt have been eliminated, i.e. whether it is reasonably possible that the appellant was merely a receiver.

68.  The range of available reasonable hypotheses may be narrowed where an accused person gives evidence at their trial.

69.  In The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 (Baden-Clay), the range of available hypotheses was narrowed because the respondent gave evidence at his trial. The prosecution relied on circumstantial evidence to establish that the respondent had killed his wife with intent to kill her or cause her grievous bodily harm. In evidence, the respondent denied that he had fought with his wife, killed her or disposed of her body. The Court of Appeal accepted a submission (that the respondent made for the first time on appeal) that the prosecution had not excluded an hypothesis that he had struck his wife during a struggle, that she had died as a result of a fall or in some other way that did not involve intent to kill or cause grievous bodily harm, and that he had disposed of the body in a state of panic. The High Court found that, in the context of the evidence given by the respondent, the hypothesis that was accepted by the Court of Appeal was mere speculation or conjecture, rather than acknowledgement of a hypothesis that was available on the evidence. It may have been available if, for example, there had been evidence of a fall injury: at [55]. But there was no evidence supporting the fall hypothesis. The respondent was the only witness who could have supported the fall hypothesis (other than the deceased, he was the only person present at the time of her death) but by his evidence he had excluded that possibility.

70.  The position was otherwise in Knight v The Queen (1992) 175 CLR 495 (Knight).  In that case, there was no dispute that the appellant had possessed a loaded rifle and had shot and injured the victim in the course of a struggle. Two shots were fired; the first shot missed the victim and the second shot struck him.  The appellant said that he did not point the rifle at anyone. He was charged with attempted murder and the prosecution relied on the second shot. The issue was whether the appellant fired the second shot with intent to kill.  The High Court concluded that, even if the jury disbelieved the appellant’s story, on the remaining evidence it was not possible to exclude the rational hypothesis that the second shot was fired recklessly but without intent to kill.

71.  This case is analogous to Knight rather than Baden-Clay. The appellant’s evidence did not narrow the range of available hypotheses. Regardless of whether the appellant’s evidence was possibly credible, there were abundant other evidence that the appellant was at least a receiver. Consequently, even if the appellant’s evidence is completely disregarded, the hypothesis that he was merely a receiver must be considered. 

Was the verdict unreasonable?

72. The trial judge’s reasons clearly indicate that his findings were not based on an assessment of the demeanour of the critical witnesses. His Honour found the complainant to be a credible witness. His Honour saw no indication in the appellant’s demeanour or manner of answering questions that suggested that his evidence should be doubted at a prima facie level: at [62].

73.  Consequently, when compared to the trial judge, this Court suffers no significant disadvantage in determining whether the evidence proves that the appellant is guilty of aggravated robbery.

74.  We have concluded that there is a reasonable hypothesis consistent with innocence; that the appellant was not the African robber but was merely a receiver.

75.  First, while the appellant’s account of how he came into possession of the vehicle is inherently somewhat improbable, his evidence was given in a prima facie credible manner and cannot be dismissed on the basis of poor demeanour or the like.  We cannot dismiss his account on the basis that the trial judge dismissed it.  Nor can we identify other reasons to completely dismiss his account of what occurred. Consequently, the appellant’s account of events remains a reasonable possibility.

76.  Second, even if the appellant’s account is completely disregarded as implausible, there remains a reasonable hypothesis that the appellant merely received the stolen vehicle.

77.  In summary, the circumstantial evidence case against the appellant is that, on 18 May (two days after the robbery), he was driving the stolen vehicle and he was in possession of a bum bag containing the complainant’s possessions (including the complainant’s car keys and identification cards) that had been in the vehicle when it was stolen. The appellant admitted that he knew that the vehicle was stolen.  The appellant’s appearance was similar to that of the African assailant. When he was arrested, the appellant was in possession of a cap that could be consistent with the cap worn by the African assailant.

78.  As the trial judge found, the circumstances that the appellant was driving the stolen vehicle and had the complainant’s personal possessions are of greater probative value; they create a very strong link between the appellant and the stolen vehicle. However, these circumstances were consistent with the appellant being either the African robber or a mere receiver. Similarly, the fact that, on 18 May 2016, the appellant knew that the vehicle was stolen and the evidence suggesting that others may have been present in the vehicle between when it was stolen and when it was located approximately 64 hours later do not tend to show that the appellant was the African robber rather than a mere receiver.

79.  On the other hand, as the trial judge said and as we have stated above, the circumstances of the appellant’s similar appearance and possession of a white cap are of less probative value. It is these circumstances of lower probative value that tend to put the appellant at the scene of the robbery.  In our view, they are insufficient.

80.  Looking at the established circumstances as a whole, we cannot exclude the reasonable hypothesis that the appellant received the stolen vehicle but did not steal it.

81.  The prosecution conceded that there is no statutory alternative of receiving to the offence of aggravated robbery.

82.  The appeal is allowed. On the charge of robbery, we set aside the verdict of guilty and order that a verdict of not guilty be entered.

I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Wigney.

Associate:

Date: