Donohue v Tasmania

[2023] TASCCA 4

[2023] TASCCA 4

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Donohue v Tasmania [2023] TASCCA 4
PARTIES:	DONOHUE, Anthony Lee
v
STATE OF TASMANIA
FILE NO:	2670/2022
DELIVERED ON:	23 March 2023
DELIVERED AT:	Hobart
HEARING DATE/S:	28 February 2023
JUDGMENT OF:	Pearce J, Geason J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Appellant found guilty of armed robbery – No significant possibility an innocent person convicted – Verdict open.

Criminal Code (Tas), s 402(1).
M v The Queen (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53, 213 CLR 606; R v Baden-Clay [2016]
HCA 35, 258 CLR 308; Dansie v The Queen [2022] HCA 25, 403 ALR 221, applied.
Aust Dig Criminal Law [3476]

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Armed robbery – Sentence of three years and nine months with non-parole period of half of that term not manifestly excessive.

Criminal Code (Tas), s 240(3). Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	J Ker
Respondent:	P Sherriff

Solicitors:

Appellant:	Tasmania Legal Aid
Respondent:	Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 4
Number of paragraphs:	70

Serial No 4/2023

File No: 2670/2022

ANTHONY LEE DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J

GEASON J

MARTIN AJ

23 March 2023

Order of the Court:

Appeal dismissed.

Serial No 4/2023

File No: 2670/2022

ANTHONY LEE DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
23 March 2023

1             After a trial conducted before Jago J and a jury, the appellant was found guilty of armed robbery. Just after 9.00 pm on Sunday 2 May 2021 a man walked into the Lighthouse Hotel in Ulverstone armed with either a firearm or something which looked like a firearm and stole cash from a till. At trial there was no issue that the crime was committed. The only issue was the identity of the robber. The appellant was sentenced by Jago J to imprisonment for three years and nine months with eligibility for parole after having served half of that term. This appeal challenges both the verdict and the sentence. The appellant seeks leave to appeal on the ground that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. Leave is required because that ground of appeal does not involve a question of law: s 401(1)(b) of the Criminal Code. The challenge to the sentence is on the ground that it is manifestly excessive.

2   For the following reasons I would dismiss the appeal.

The appeal against conviction

3             The first ground of appeal invokes the common form unreasonable verdict ground stated in Tasmania in the first limb of s 402(1) of the Code. The approach which must be adopted by a Court of Criminal Appeal when considering an appeal on that ground is stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63, 181 CLR 487, 493–5, affirmed in MFA v The Queen (2002) 213 CLR 606 and in SKA v The Queen [2011] HCA 13, 243 CLR 400, and recently re- stated in Dansie v The Queen [2022] HCA 25, 403 ALR 221. The question which the court must ask itself is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M at 493. The question is "one of fact which the court must decide by making its own independent assessment of the evidence": M at 493. The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M at 493. However, as the joint judgment in M continued at 494-495:

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (Footnotes omitted)"

4             The case against the appellant was entirely circumstantial. Thus, it followed from the verdict that the jury, as it was correctly directed by the trial judge, was satisfied that the circumstances established by the evidence were inconsistent with any reasonable hypothesis other than his

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guilt: Peacock v The King (1911) 13 CLR 619 at 634; Barca v The Queen (1975) 133 CLR 82 per Gibbs, Stephen and Mason JJ, at 104; R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [46]-[47]. The task of this Court is to determine whether it is independently satisfied, as a result of its own assessment of the sufficiency and quality of the whole of the evidence adduced at trial, that the guilt of the appellant is the only rational inference available. In other words, that the evidence excludes as a reasonable possibility that a person other than the appellant committed the robbery.

The prosecution case

5             At trial there was very little challenge to the prosecution evidence. Deziree Templeton was the hotel duty manager. She was standing behind a counter in a bar area when a man walked in the back door, came straight to her and stood across the counter. She described the man as wearing jeans, a plain blue jacket and gloves. He was also wearing a black balaclava which completely covered his head apart from holes for the eyes and mouth. When describing the balaclava she said that "it struck me that it didn’t look like what I would expect normal balaclavas to look like. It looked, maybe, I don’t know, home-made or – it had just like lines all down it."

6             Miss Templeton thought the man was about six feet tall. She could only see his lips and formed the impression that his skin was white. From his style of dress she thought he was in his late 20's. He was carrying a small light blue backpack which she described as a child's backpack because of its style and because it had pictures of what she thought were animals on it. More than once the man said to her, in a normal voice, "Give me the till". Miss Templeton saw that the man was carrying a cylindrical metal object along or protruding from his sleeve. She thought it was the muzzle of a gun. She gave the man what was later established to be about $8,000 in cash. She had been counting the money ready for closing and thought that there was at least $5,000 in $50 notes. She said that "the bulk of it would have been the fifties, and then followed closely by the twenties, and then there was probably five, six hundred worth of fives and tens." She tipped the cash into the man's bag. As she did so an orange key tag went into the bag as well. The man left through the same door he had come in.

7             Christopher Stotson was a patron in the hotel at the time of the robbery. He had been in the gaming area but as he was walking towards the counter to cash in his coins he saw the robber and heard a male voice demanding of Miss Templeton that the till be emptied. He said the man was dressed in black and his face was fully enclosed by a tight fitting face mask, like a ski mask. As the man left Mr Stotson chased him. He said that the man then went "out the back door, through the car park, to the right and up the side street there towards the railway line." Mr Stotson said that the man ran up a driveway and through a gate, and seemed to know where he was going. Mr Stotson gave up the chase when the man outran him. Mr Stotson gave evidence that he was 173 or 175 centimetres tall and the man was a bit taller than him.

8             CCTV footage obtained from the hotel showed images of the robber both inside and outside the hotel. The images from inside the hotel are entirely consistent with Miss Templeton's evidence but do not allow any accurate assessment of the height or age of the robber or reveal any other identifying feature apart from the colour of his skin. The CCTV discloses one important matter not described by Miss Templeton or Mr Stotson. The robber was wearing not only the balaclava but also dark glasses with black frames over his eyes.

9             The direction in which the robber ran after leaving the hotel took him towards the home of Mildred and Trevor Targett at 62 Victoria Street. It was not far from the hotel and was adjacent to the railway line. Their driveway ran down the side of the house parallel to the railway line. There was a cyclone gate about half way down the driveway. At about 7.00 am on Monday 3 May 2021, the morning after the robbery, Mrs Targett went to her backyard to feed the chickens. She found what she referred to as a black beanie and a pair of black sunglasses on the ground next to a feed bin. She picked them up and put them on the lid of the bin.

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10           When Mr Targett left for work at about 6.15 am he noticed that the cyclone gate in the driveway had been left open. He returned from work at about 3.30 pm. Just after 4.00 pm some police officers arrived to inquire about the two security cameras he had installed on his house. He asked them to come back after he had checked with his wife. By the time they returned about an hour later Mr Targett had established that one of the cameras was not operational and the other showed nothing. However in the meantime, he noticed in the backyard what he described as a balaclava and sunglasses on the feed bin. He told the police officers what had been found. Photographs taken by the police show that the place in which the items were found was in a secluded corner at the very back of the yard between two outbuildings, as far from the road at the front of the house as it was possible to get. The photographs also make clear that the item is a black balaclava, not a beanie. The appearance of the balaclava matches the one described by Miss Templeton and Mr Stotson and both the balaclava and dark glasses match those shown on the hotel CCTV.

11           The balaclava and the sunglasses were sent by the investigating police officers to Forensic Science Services Tasmania for examination and analysis. Both items were swabbed and the swabs were sent for DNA profiling. One swab was taken from the sunglasses and two from the balaclava. DNA profiles were obtained from all three swabs and compared to reference DNA samples obtained from the appellant and his partner Carley Fenech. The DNA analysis was undertaken by Dr Paul Holloway. Dr Holloway reported that:

• the swab taken from the sunglasses produced a mixed DNA profile with three contributors. No reliable conclusions could be drawn about the second and third contributors, likely because those two profiles were degraded or insufficient. However, as to the other contributor, according to Dr Holloway, it was 100 billion times more likely that the profile came about as a result of DNA from the appellant and two other people, rather than from three unknown people;

• the DNA profile from first the swab of the balaclava was taken from the inner front surfaces down to the neck. It contained a mixture of three contributors. No reliable conclusions could be drawn as to the third contributor. Again, it was 100 billion times more likely that the profile would be obtained if the appellant was a contributor to it than if he was not. As to the remaining contributor, Dr Holloway's evidence was that there was enough DNA to enable a comparison and calculation of a likelihood ratio, but there was no reference sample provided to which the profile could be compared. From that evidence it is to be inferred that the sample did not match the DNA profile of Carley Fenech because her profile was provided for comparison;

• the other swab was taken from the outer surface of the balaclava. The DNA profile disclosed a mixture of three contributors. No reliable conclusions could be drawn as to the third contributor. However as to the other two contributors it was 100 billion times more likely that the appellant was one of the contributors than if he was not, and 41 million times more likely that Carley Fenech was a contributor than if she was not.

12           The prosecution called evidence from Rebecca Lamond, an employee of the Neptune Hotel in Penguin. The evidence established that the Neptune was operated by the same owner as the Lighthouse Hotel. Ms Lamond was working on Monday 3 May 2021 and had already heard about the robbery. A man, which the evidence established was the appellant, was in the gaming area of the hotel when she started work. At around 6.00 pm her attention was drawn to him because, in a series of transactions, he exchanged at least $1,000 in five, ten and twenty dollar bills for coins for the gaming machines. Ms Lamond thought it was unusual to exchange such a significant sum using notes of those smaller denominations. Ms Lamond also gave evidence that the man won some money, more than the amount he had exchanged for coins. She thought it was around $2,000. About half was paid in cash but the balance was such that it was required by the gaming rules or hotel policy to be paid by cheque. For that purpose she required identification. The appellant told her his name, and the name of his partner, a bit

4   No 4/2023

about his life and where he was living. He returned the following day to collect a cheque which had
been made out to him.

13           The appellant's home was searched by the police on 10 May 2021, just over a week after the robbery. In evidence was a photograph of the cheque from the proprietor of the Neptune Hotel made out to the appellant in the sum of $1,000.36. A small handwritten note was found in the domestic rubbish wheelie bin outside. The note was in these terms:

"$5 = 280 $10 = 510 $20 = 1160

2300

J"

14           The evidence did not disclose any other forensic link, either fingerprint or DNA, between the appellant and the robbery. During the search of the appellant's home on 10 May 2021 the police did not find gloves, a backpack, a key tag, a metal cylinder or firearm, clothing or any other evidence to link him to the robbery.

15           The prosecution called Carley Fenech as a witness. She lived with the appellant and their infant son in Penguin. She was responsible for the family finances and the appellant gave her his pay, she said, so she could budget. She recalled Sunday 2 May 2021 as a normal day in her life. Their son usually slept in the same bed as her and the appellant. She told the jury that her normal practice was to put the child to bed at no later than 8.30 pm and for her and the appellant to go to bed between then and about 10.00 pm. Ms Fenech said that she had no specific memory of what happened on 2 May but that she had no memory that anything out of the ordinary had taken place. She was confident, she said, that the appellant had gone to bed with her and was there in the morning when she woke.

The appellant's evidence at trial

16           The appellant gave evidence in his defence. He was aged 31 at the time of the robbery. He said that he was 190 centimetres tall which is almost 6 feet and 3 inches. He denied being responsible for the robbery. He claimed he was able to remember the night of the robbery because he had occasion to think about it only a week later when he was arrested. He said that he was at home throughout that night with his partner and child. He denied ownership or knowledge of a backpack like the one used in the robbery. He agreed that he was at the Neptune Hotel in Penguin on 3 May 2021 and claimed that the money he changed to use on the gambling machines had come from a money jar which he kept at the shed at his home which he referred to as his "man cave." He said that his habit was to accumulate small denomination notes "like fives, tens and twenty dollar notes and all" in the jar rather than keep them in his wallet. His evidence was that before he went to the Neptune Hotel on 3 May he had grabbed all of the notes from the jar and put them in his pocket. He did not count how much he had taken. He said that at the hotel he had won $2,000.36. He was paid $1,000 in cash and returned the following day to collect the cheque for the balance.

17           The appellant admitted that he had written the note found by the police on 10 May 2021 but said that it was the last record he had made of the money in his change jar. As to the balaclava and glasses he was asked by his counsel whether they were his. He agreed that he had owned a balaclava and sunglasses "just like that" which he would wear underneath his motor cycle helmet when riding. He said that he assumed that the items were his. I infer that he gave evidence in those terms because he knew by then that the DNA evidence strongly linked the items to him. When asked when he had last seen them he answered:

5   No 4/2023

"Could be one of four addresses in Ulverstone that I'd visit regular. I'd go there, take it off with me helmet. Take me sunglasses off and I'd put the balaclava and sunglasses in me helmet. Sitting here, I’ve obviously put me helmet on one day and I can't recall which of the four addresses I’ve left 'em at, otherwise I would've went and got 'em."

Assessment of the evidence

18           In my assessment, the prosecution evidence established beyond reasonable doubt that the balaclava and glasses found in the back yard of 62 Victoria Street were the ones worn by the robber. Counsel for the appellant did not submit to the contrary. The black balaclava and dark glasses worn by the robber matched the appearance of those found. The CCTV from outside the hotel showed the robber fleeing in the direction of Mr and Mrs Targett's home. Mr Stotson described the robber going up a driveway and through a gate, consistently with the appearance and location of that home and Mr Targett's evidence about his gate. The scenario that a balaclava and dark glasses of that appearance but different to the ones used in the robbery would be found together in that location at that time is so implausible that it can be safely excluded as a reasonable possibility.

19           It having been proved that the balaclava and glasses were those used by the robber it is necessary to consider whether the prosecution evidence excluded as a reasonable possibility the hypothesis that a person other than the appellant committed the robbery wearing those items.

20           The appellant submits that, aside from the evidence of the appellant and Ms Fenech, the nature of the issues and the evidence was such that this Court, based on the court record, is in just as good a position as the jury to assess the probative force of the evidence. He contends that the evidence contains inadequacies which should lead this Court to experience a reasonable doubt about his guilt and conclude that there is a significant possibility that an innocent person has been convicted. The appellant contends that the note found by the police does not add anything to the prosecution case because it was located more than a week after the robbery, and its terms do not make sense or correspond with the denominations and amounts stolen from the hotel. The description of the physical appearance of the male who committed the robbery included some differences to the accused although not to such an extent as to be inconsistent. The hypothesis consistent with innocence advanced by the appellant is that:

• the perpetrator of the robbery was a person other than the appellant who, prior to the robbery, came into possession of the balaclava and glasses previously used (in combination) by the appellant; and

• the cash the appellant had in his possession on 3 May 2021 at the Neptune Hotel was obtained by means other than the robbery.

21           The appellant first points to the DNA evidence which establishes the presence of DNA on the balaclava and glasses other than that of the appellant. Each of the swabs contained DNA from three persons. It follows that there must have been DNA on each item other than that of the appellant and Ms Fenech. That is made clear in the case of the swab taken from the inner front surface of the balaclava which disclosed the presence of DNA capable of being matched to another person. Dr Holloway agreed that it is impossible to say how long before the analysis was carried out that the bodily substance containing the DNA was deposited on the object. He also agreed that the longer that there is physical contact between a donor of DNA and an object the more likely it is that there will be DNA left on the object. The appellant contends that Dr Holloway's evidence supports the possibility that the DNA matching the appellant and Ms Fenech was deposited on the items before they came into the possession of another person who was the source of the unidentified DNA and the perpetrator of the robbery.

22           In considering, in a circumstantial evidence case, whether the inference of guilt is the only inference reasonably open, all of the circumstances established by the evidence are to be considered and

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weighed. The evidence is not to be looked at in a piecemeal fashion at trial or on appeal: R v Hillier
[2007] HCA 13, 228 CLR 618 at 638 [48], R v Baden-Clay at 324 [47].

23           In my assessment, notwithstanding the contentions advanced by the appellant, it was open to the jury on the whole of the evidence, in the sense referred to in M, to be satisfied beyond reasonable doubt that the accused was guilty.

24           The prosecution evidence contained no discrepancy and was not tainted. The combined force of the DNA evidence strongly linking the appellant to both the balaclava and glasses used in the robbery and evidence of his possession on the following day of a large quantity of cash in denominations consistent with that stolen provided powerful evidence of guilt. The cash the appellant took with him to the Neptune Hotel on 3 May 2021 cannot otherwise be linked to the robbery, but the force of the evidence concerning the cash is added to by the inherent unlikelihood that a person in the appellant's position would innocently accumulate, and present at a hotel gaming area with, as much as $1,000 in $5, $10 and $20 notes. It is theoretically possible that an unidentified person came into possession of the balaclava on which the DNA of the appellant and Ms Fenech was deposited, and glasses on which the DNA of the appellant was deposited and decided to use them together in the robbery, and that the cash the appellant took to the hotel the next day is innocently explained. However, in my judgment, without more, the evidence considered as a whole excludes that scenario as a rational hypothesis.

25           The onus of proof that the appellant was guilty of robbery was on the prosecution. It was not for him to establish that some inference other than that of guilt should be reasonably drawn from the evidence or to prove facts that would tend to support that inference: Barca v The Queen at 105. However, my confidence in the conclusion I have reached is reinforced for this reason. Whether the case against the appellant was proved is to be assessed on the basis of all of the established evidence. This is a case in which the appellant elected to give evidence. The evidence also included the testimony of Ms Fenech. The appellant admitted, albeit expressed in terms of an assumption, having owned the balaclava and glasses used in the robbery but told the jury that he must have lost or misplaced them before the crime without realising he had done so. The appellant also advanced an explanation for his possession of the cash he took to the Neptune Hotel, and for that matter for the note he admitted he had written. It follows from the verdict that the evidence of the appellant and the evidence of Ms Fenech did not raise a reasonable doubt in the minds of the jury about the appellant's guilt. It was open to the jury to disbelieve the appellant's evidence as it plainly did. It must also follow that the jury concluded that Ms Fenech was either mistaken or untruthful to the extent that her evidence suggested that the appellant was home with her in bed at the time the robbery was committed. That conclusion was open to the jury. The rejection of the evidence of those witnesses does not mean that the evidence should be disregarded as having no bearing on the availability of hypotheses consistent with the appellant's innocence of robbery: Baden- Clay at [57]. In Baden-Clay at [65], it was again made clear by the plurality that it is fundamental to our criminal justice system in relation to allegations of serious crimes tried by jury that the jury is the constitutional tribunal for deciding issues of fact. In this case, in reaching the conclusions it did, after assessing the credibility and reliability of the evidence of the appellant and Ms Fenech, the jury enjoyed a particular advantage which this Court does not enjoy. That advantage is capable of resolving any doubt experienced by this Court about whether the hypothesis consistent with innocence advanced by the appellant is an inference which was reasonably open. There was no other reasonable hypothesis consistent with innocence open on the evidence. This ground of appeal fails.

The appeal against sentence

26           As to the appeal against sentence, I have had the advantage of reading, in draft form, the reasons of Martin AJ. I agree that, for the reasons stated by his Honour, the sentence is not manifestly excessive.

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Result and disposition

27          I would grant leave to appeal on the first ground but neither ground of appeal is made out. The appeal should be dismissed.

8 No 4/2023
File No: 2670/2022

ANTHONY LEE DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
23 March 2023

28          For the reasons given by Pearce J and Martin AJ I would grant leave to appeal on Ground 1, and dismiss both grounds of appeal.

9 No 4/2023
File No: 2670/2022

ANTHONY LEE DONOHUE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ

23 March 2023

Introduction

29           The appellant was found guilty by a jury of armed robbery. Jago J imposed a sentence of imprisonment for 3 years and 9 months, and ordered that the appellant be eligible for parole after serving one half of that sentence.

30           The appellant appeals against his conviction on the sole ground that the verdict was unreasonable and unsupported by the evidence. In addition, the appellant appeals against the sentence on the ground that it was manifestly excessive.

31   For the reasons that follow, I would dismiss the appeal.

Background

32          The essential facts of the robbery are not in dispute. The events occurred at the Lighthouse Hotel in Ulverstone, sometime after 9pm on 2 May 2021.

33           The duty manager at the hotel was removing and counting money from various tills in preparation for closing. A male person wearing a balaclava, and sunglasses, entered the gaming area and verbally demanded the contents of a till. The victim observed a cylindrical object in the hand of the offender which she believed to be a gun.

34           After the demand for money was repeated, the victim handed over a quantity of cash which she estimated to be approximately $8,000, being $5,000 comprised of $50 notes, and a lesser quantity in smaller denominations. The offender placed the money into a backpack and left the premises. Pursued by a patron, the offender escaped by running up a driveway of a nearby house. The following morning, a resident of the house located a balaclava and a pair of sunglasses in the rear yard.

35           The balaclava and sunglasses found by the resident were consistent with the description of the balaclava given by the victim, and with the appearance of the balaclava and sunglasses in CCTV footage of the robbery. In addition, and significantly, DNA matching the DNA of the appellant was found on both the balaclava and the sunglasses. DNA matching the DNA of the appellant's partner was found on the balaclava.

36           The appellant was arrested eight days later on 10 May 2021. During the search of his home, police located in a rubbish bin a handwritten note which appeared to refer to various amounts and denominations of cash. This evidence was linked by the Crown with evidence that during the day after the robbery, the appellant was spending money at the Neptune Hotel, and cashing in $5, $10 and $20 notes to a total of at least $1,000.

37           The appellant's partner gave evidence in the Crown case. She said the appellant had been at home with her and her young child during the day of 2 May 2021, and together they had gone to bed between 8.30pm and 10pm. The partner admitted she did not have a specific memory of the time, but said that, on 10 May when she spoke to the police, she possessed a clear memory of the events of 2 May. Once she went to sleep, she did not wake up.

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38           The appellant gave evidence and denied committing the robbery. He said he was home during the day of 2 May with his partner and her child. He said they went to bed between 8.30pm and 9.30pm, and he did not leave the premises during that night.

39           Referring to the photographs of the balaclava and sunglasses, the appellant said he assumed they belonged to him. As to why he made that assumption, the appellant gave the following evidence:

"Okay. Why do you assume they're yours?.....I had a balaclava and sunglasses just like that, and yeah I'd wear 'em underneath me motorbike helmet when I'm riding on a regular basis.

Where do you last recall seeing them?.....Could be one of four addresses in Ulverstone that I'd visit regular. I'd go there, take it off with me helmet. Take me sunglasses off and I'd put the balaclava and sunglasses in me helmet. Sitting here, I've obviously put me helmet on one day and I can't recall which of the four addresses I've left 'em at, otherwise I would've went and got 'em."

40           During cross-examination the appellant said he attended the four addresses on a regular basis and could not remember in which of the four premises he left the balaclava and sunglasses. He maintained it was one of the four addresses. The appellant described the sunglasses as "black safety glasses".

41           As to spending money the day after the robbery at the Neptune Hotel, changing money and playing poker machines, the appellant said he retrieved the money from a jar in the shed at his home into which he had previously placed "small like $5's, $10's and $20 notes, and all my change". He said he did not know how much money he took to the hotel.

42           During cross-examination the appellant said he would place change and small notes into the jar every time he came home. In this way, by accumulating spare change, the amount in the jar built up over time.

43          The appellant said he did not know how much money he took to the hotel. He accepted that there might have been at least $1,000 in the jar and said:

"Yeah, I don't know how much was in there because I – that note was the last time I counted it and when I went to the pub that day I've grabbed all the notes out of the jar, put them in my pocket and went down to the pub and I don't know, obviously there was over a thousand dollars' worth from Mrs Lamond's statement."

44           During cross-examination the appellant agreed he was at the Neptune Hotel for a number of hours into the early part of the evening. He agreed he grabbed the notes from the jar and took them to the hotel for the "purposes of entertainment". He said he did not use electronic banking and had "never really been a believer in banks".

45          The appellant was also asked about the handwritten note. He agreed it was in his handwriting, and gave the following evidence as to its purpose and how it came to be in the rubbish bin:

"And what was it meant to depict and where do you last recall it being?.....That was actually in the change jar in the shed, and when I've grabbed the notes there was in a, in a master change, and the change jar.

Okay. And do you recall the last time you saw that?.....Ah yeah, it was just in the change jar in the shed, like -

The evidence is that it was retrieved from a rubbish bin. Do you recall 20 whether you put it there or not?.....No.

No you didn't do it, or no you don't recall?.....No, I don't recall no."

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Appellant's submissions

46   In summary, counsel for the appellant advanced the following submissions:

•

"The guilty verdict indicates that the jury rejected the crucial aspects of the appellant's evidence, being his denial of the commission of the robbery and his explanation of the cash in his possession shortly after. It was open to the jury to reject those aspects of the appellant's evidence."

•

Having rejected the crucial aspects of the appellant's evidence, "the jury was then required to put the statements of the appellant to one side and to consider whether, on the totality of the evidence, the Crown had proved its case beyond reasonable doubt." Counsel agreed that the jury was properly directed in this regard.

•

The scenario that a person other than the appellant committed the robbery remained open on the evidence and, therefore, the Crown failed to exclude such a rational hypothesis consistent with innocence.

•

The items utilised in the robbery, which had previously belonged to the appellant, were "common place and easily transportable". "The suggestion that another person might have come into possession of them, deliberately or otherwise, and chosen to use them during illegal activity was neither far-fetched nor fanciful".

•

While it was open to the jury to conclude that the appellant's DNA was found on the sunglasses and the balaclava, and that the presence of the appellant's DNA was due to the appellant having possessed those items prior to the robbery, a second, unknown DNA profile was found on swabs taken from the inner surface of the balaclava. Evidence was led that if a person in contact with the balaclava was sweating profusely, the chances of finding that person's DNA on the surface of the balaclava were increased.

•

While the DNA evidence was consistent with the appellant being the offender, "it was equally consistent with the robbery having been committed by the person to whom the second, unknown profile belonged".

•

As to the other circumstances to the circumstantial case:

"(1)	The description given by witnesses of the male who committed the robbery was limited to his height and an approximation of his age. These estimates differed from the height and age of the appellant, although not to such an extent as to be inconsistent.
(2)	The suggestion that the appellant was familiar with the practises of gaming establishments was vague and lacking in substance. His actions at the Neptune Hotel suggest an absence of such familiarity. By way of example, his behaviour in failing to utilise the relative anonymity of the change machines is difficult to reconcile with the asserted familiarity, in circumstances where it is alleged he had robbed a similar venue only the day before.
(3)	The cash in the possession of the appellant the following day was unable to be clearly linked to that taken during the robbery. The appellant's subsequent attendance at the Neptune Hotel gave rise to other aspects of inconsistency in his behaviour, such as the provision of his full name and his re-attendance with identification.
(4)	The handwritten note is similarly inconclusive, in that the denominations and amounts specified do not correspond with those taken in the robbery. Moreover,

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the note was found by police in an outside rubbish bin, over a week after the

robbery." (footnotes omitted)

•

Recognising that the evidence must be considered in its entirety, nevertheless:

"In the present case however, the alternative scenario consistent with innocence would
need only to have the following characteristics:

(1)	The perpetrator of the robbery was a person other than the appellant who, prior to the robbery, came into possession of two items of protective clothing previously used (in combination) by the appellant.
(2)	The appellant had in his possession shortly after the occurrence of the robbery a significant (but also significantly lesser than that taken) quantity of cash, obtained by means other than the robbery.

The chances of the above combination of circumstances occurring are not so remote that any such hypothesis should be considered farfetched, and the evidence was not such that this scenario could be excluded by the jury as a reasonable possibility."

Summing Up

47          There is no challenge by the appellant to the adequacy of the directions given by the trial judge to the jury. However, it is appropriate to bear in mind the following features of those directions:

• As to circumstantial evidence, the jury was provided with a written memorandum in the following terms:

"Circumstantial Evidence

3.1

Circumstantial evidence is evidence of a basic fact or facts from which the jury
is asked to infer a further fact or facts.

3.2

The commission of a crime may be proved beyond reasonable doubt by
circumstantial evidence, provided that:

(a)	all the facts and circumstances from which the conclusion of guilt is drawn must be established to the satisfaction of the jury; and
(b)	the jury must be satisfied beyond reasonable doubt that the conclusion of guilt is the only rational conclusion which is open on the whole of the evidence that the jury accepts. If there is open on the whole of the evidence that the jury accepts any rational hypothesis consistent with innocence, the accused must be found not guilty.

3.3

The conclusion of guilt may be drawn from a combination of facts and circumstances, none of which alone would be strong enough to support that conclusion."

• In oral directions, the trial judge described her directions as to circumstantial evidence as "a most important direction that I give you in the context of this trial". Her Honour then read paragraphs 3.1 – 3.3 of the memorandum, and followed with detailed discussion placing those directions into the context of the trial and the evidence. Her Honour gave careful directions concerning the DNA evidence and, having identified the Crown case with respect to the circumstantial evidence, gave detailed directions as to the case for the appellant. Those directions included the following passages relating to belief or disbelief of the appellant's evidence:

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"I need to give you a direction about the accused having given evidence in this case. The accused chose to give evidence in this trial. He did not have to do so. He was quite at liberty not to give evidence and that would have been no reflection upon him.

In this case however he chose to do so and submitted himself to cross-examination by counsel for the State. You should consider his evidence in the same way that you consider the evidence of any other witness. What I mean by that is that you should evaluate it just as you evaluate the evidence of any other witness. He does not start with some sort of handicap because he has come here as a person accused of a serious crime. You must not treat his evidence as somehow second-rate evidence because he is the person that's on trial here.

You should evaluate his evidence just as you would evaluate the evidence of any other witness. There is an important direction I must give you also in light of the fact the accused did give evidence. The fact that he chose to give evidence does not in any way detract from the important principle of our system of law that the onus is on the State to prove the charges that it presents against an accused and the accused is presumed to be innocent unless the charges against him are proven beyond reasonable doubt.

So of course if you positively believe the accused when he says to you that he did not rob the Lighthouse Hotel that will be the end of the matter. You must acquit him. However, even if you have difficulty accepting his evidence and prefer the evidence presented on the State's case you cannot find guilt proved if his evidence has given rise to a reasonable doubt in your mind. For example, that would be the case if you cannot exclude as a reasonable possibility that he left the balaclava and sunglasses behind, lost them at some point in time, and someone else then wore them to rob the hotel.

Finally, even if you positively disbelieve the accused you do not as a result of that disbelief immediately jump to a conclusion of guilt. Rather, you put his evidence to one side and consider the evidence that you do accept. On the basis of the evidence that you do accept you ask yourself the question, 'Am I satisfied of guilt beyond reasonable doubt?' bearing in mind of course the direction I have given you about circumstantial evidence and that is that you must be satisfied beyond reasonable doubt that the conclusion of guilt is the only rational conclusion which is open on the whole of the evidence that you accept."

48           The directions given by the trial judge were thorough and clear. In particular, the directions as to circumstantial evidence were carefully related to the evidence, and the respective cases were fairly placed before the jury in that context.

Discussion

49          The principles to be applied are well settled and not in dispute[1]. Relying on Dansie at [38],in written submissions counsel for the appellant advanced the following proposition:

[1] M v The Queen (1994) 181 CLR 487; Dansie v The Queen [2022] HCA 25, 403 ALR 221

"Where, as in the present case, the evidence was largely uncontested, any advantage to the jury in seeing and hearing the witnesses give evidence must be slight. It follows that the task of the Appeal Court is to ask whether it is independently satisfied, as a result of its own assessment of the whole of the evidence adduced at trial, that the guilt of the appellant is the only rationale inference available".

50           In Dansie, the High Court was concerned with a conviction for murder recorded by a trial judge sitting without a jury. The prosecution case was based solely on circumstantial evidence. The appellant did not give evidence. In the context of detailed reasons given by the trial judge for the verdict, the High Court pointed out that the task for the Court of Criminal Appeal was "not to determine whether there

14   No 4/2023

was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty
of the offence tried" [7]. The judgment continued:

"The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence."

51   The judgment in Dansie emphasised that the question to be determined was settled in M:

"8 That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty', that question being 'one of fact which the court must decide by making its own independent assessment of the evidence'..

9 The joint judgment in M made clear that 'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses'. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated.

'It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" [Footnotes omitted.]

52           In Dansie, the court highlighted the difference between cases in which discrepancies in the evidence should have led the appellate court to experience a reasonable doubt, and those in which juries possess the significant advantage of having heard an accused give evidence:

"[13] Pell v The Queen makes clear that nothing said in Libke v The Queen, to which repeated reference was made in the decision under appeal, should be understood to have departed from M. Pell itself was a case in which discrepancies and inadequacies in the evidence ought to have led a court of criminal appeal to experience a reasonable doubt which was incapable of being resolved by the advantages, which the jury was acknowledged to have had, in assessing the credibility and reliability of testimony available to the court on appeal only in the form of audio-visual recordings.

[14] R v Baden-Clay, on which reliance was also placed by the majority in the decision under appeal, was a case in which the jury had the distinct advantage of having seen and heard the evidence of the accused. The observation in Baden-Clay to the effect that setting aside a conviction on the unreasonableness ground 'is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial' was made with reference to M and must be understood in that context." [Footnotes omitted.]

15   No 4/2023

53           Critical to the Crown case was the evidence concerning the escape route of the offender and the location of the balaclava and sunglasses the next morning. The patron who pursued the offender described the route taken by the offender which ended when the offender opened a gate and went up a driveway. Although the patron was not asked to identify the particular premises, the inference is irresistible that it was the premises where the resident found a balaclava and sunglasses on the ground at the rear of the premises between a bird aviary and a chicken shed. It was the type of location in which it might be expected that the person in the position of the offender would seek to hide. The sunglasses and balaclava being together, and the offender having worn both a balaclava and sunglasses, coupled with the evidence of the patron who pursued the offender, leaves open no other reasonable conclusion than that the offender ran up the driveway into the rear of the premises and left the balaclava and sunglasses on the ground.

54          It should also be noted that when one of the occupants left for work early the morning after the robbery, he observed that the gate on the driveway was open.

55          Leaving aside the evidence of the accused and his partner, the following facts were established by the evidence of witnesses and CCTV:

•	The physical appearance of the offender was consistent with the appearance of the appellant.
•	The offender was wearing a balaclava and sunglasses.
•	In escaping pursuit, the offender ran up a driveway and left the balaclava and sunglasses on the ground in the rear of the premises.
•	The balaclava and sunglasses were connected to the appellant, and his partner, by the presence of their DNA. The partner's DNA was found on the balaclava, and the appellant's DNA was found on both the balaclava and the sunglasses.
•	Of the funds stolen, approximately $5,000 was comprised of $50 notes, and approximately $3,000 in $20, $10 and $5 notes. The victim, in unchallenged evidence, said the bulk was in $50's, but was followed closely by $20's and then there was "probably 5 - 600 worth of 5's and 10's".
•	The day after the robbery, the appellant attended at the Neptune Hotel where, on a number of occasions, he exchanged $5, $10 and $20 notes for coins. The attendant described the activity as "unusual" because most people cash in $50 or $100 notes. The appellant exchanged at least $1,000.
•	When police searched the appellant's premises on 10 May 2021, they located in a rubbish bin, a note in the appellant's handwriting as follows:
"$5 = 280 $10 = 5[?]0 $20 = 1160

2300

J"

56           These findings of fact were almost inevitable, but at the least they were findings that the appellant accepts were open to the jury. In their totality these facts were ample to support a conviction.

16   No 4/2023

In this process, the DNA evidence was undoubtedly of critical importance, and the appellant sought to detract from the value of the DNA evidence as an incriminating circumstance by highlighting the presence of an unknown DNA on the balaclava. However, continuing to leave aside the evidence of the appellant and his partner, the presence of an unknown DNA does not detract from the connection between the balaclava and the sunglasses with the accused and his partner. It is that connection which provides the link between the appellant and items worn by the offender. It amounts to no more than mere speculation to suggest that the unknown DNA could have been left by the offender, particularly as the residents of the house where those items were located did not provide DNA samples for the purposes of exclusion.

57           The appellant sought to provide an explanation for the pieces of circumstantial evidence, and he did so by giving evidence on oath. The jury had the advantage of seeing and hearing the appellant, and his partner, give evidence. It was open to the jury to reject any part of the appellant's evidence, and that of his partner. In particular, it was open to the jury to reject the appellant's explanation that, sometime prior to the date of the robbery, he misplaced his balaclava and sunglasses.

58           Having regard to the entirety of the evidence led by the Crown, I am not left with any doubt about the guilt of the appellant. Further, in critical respects, my reading of the appellant's evidence does not cause me any disquiet about the verdict. To the contrary, I found the appellant's evidence with respect to misplacing the balaclava and sunglasses, and possession of at least $1,000 the following day, entirely unconvincing.

59   For these reasons I would dismiss the appeal against conviction.

Sentence
60	The trial judge summarised the facts of the appellant's offending:
"At about 9.30pm on Sunday 2 May 2021 you walked into the Lighthouse Hotel at Ulverstone. You were wearing a full faced balaclava which covered your whole head, and you had gloves on your hands. You carried a small backpack and an offensive weapon which you were holding tucked into the sleeve of your jacket so that it was not fully visible. You walked up to the gaming room counter where a staff member was counting a till. You thrust the offensive weapon in her direction, in a manner that suggested you were holding a firearm. You demanded she give you the till. You made this demand more than once. The staff member tipped the contents of the till into the backpack that you were carrying. You received somewhere between $5000 and $8000. None of this money has been recovered. Having gained the money, you left the hotel and fled the area by running through the backyard of a nearby residence. In so doing, you dropped the balaclava and some sunglasses you were wearing. DNA analysis subsequently linked those items to you and you were arrested. You denied your involvement in this crime."
61	As to the use of an offensive weapon, and the appellant's state of mind, the trial judge found as

follows:

"Whilst I am unable to determine the offensive weapon carried by you was a firearm, you behaved in a way that caused the staff member to believe you were carrying a firearm. She gave evidence that she thought you had a firearm. She described it as being cylindrical in shape and said she believed she saw a muzzle. I will sentence on the basis that I am not satisfied it was in fact a firearm, but rather a cylindrical metal object. I will also sentence on the basis that you behaved in a manner whereby it was apparent you wanted the staff member to believe it was a firearm, and wanted to create fear and intimidation so that she would comply with your demands. The fact it was not a firearm is of course relevant to the degree of physical harm that may have been occasioned, but that does not diminish the psychological harm that your behaviour caused for the staff member."

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62   As to the impact of the crime, the trial judge found:

"The impact of the crime is relevant to sentence. Fortunately, no physical harm was caused to anyone, but as so often happens with crimes of this nature, the staff member has suffered considerable psychological consequences. She has undertaken some counselling and has had to take time off work. She has experienced nightmares and panic attacks. She now finds herself becoming frequently anxious, is more cautious and less trusting. Fortunately, with support from her employer, she has been able to gradually return to work. The staff member found the giving of evidence a most difficult experience."

63   The trial judge summarised matters personal to the appellant:

"By way of background, you were raised predominantly by your mother. Your parents separated when you were five, largely due to your father's violence. He was an alcoholic. From the time of the marriage breakup, your elder brother played a very significant role in your life. Sadly, when you were 15 and he was 19, he was killed in a motor cycle accident. From that point onwards, you have experienced a number of difficulties. You did not cope with his passing and turned to alcohol and then drugs to cope with your grief. You developed an addiction to methyl amphetamine. A review of your prior convictions indicates that before your brother's passing you had not been in any significant trouble with the law. Since then however, you have been a relatively persistent offender. Your prior convictions are reflective of you committing crime in order to sustain your drug habit. I am told that you are desirous of addressing your drug addiction. Whether than eventuates or not remains to be seen. I note you have previously had the benefit of sentences directed towards your rehabilitation, such as drug treatment orders, but to date they do not appear to have achieved their intended purpose."

64           As to the appellant's record of prior offending, the trial judge noted that the appellant has over 50 prior convictions for matters of dishonesty, and several for matters of violence, together with numerous driving and bail offences. The offending commenced in 2007 and demonstrates a total disregard for court orders. Periods of imprisonment have not deterred the appellant from continuing to offend. As the trial judge noted, previous sentences directed towards rehabilitation have not achieved their intended purpose.

65           The principles to be applied in considering an appeal against sentence on the basis that the sentence was manifestly excessive are well settled and are not in dispute.[2] Put shortly, the burden rests on the appellant to persuade this Court that the sentence is "unreasonable or plainly unjust".

[2] DPP (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1

66           Unfortunately, crimes of the type committed by the appellant are too common. They cause harm, often longstanding harm, to immediate victims, and great disquiet throughout the community. General deterrence and denunciation are important factors in the exercise of the sentencing discretion. Bearing in mind the appellant's record of prior offending, personal deterrence was also a significant factor.

67           The appellant was not entitled to the benefit of any reduction by reason of a plea of guilty, and has not demonstrated any remorse. As the trial judge observed, members of the public were exposed to the crime which was committed on commercial premises during the latter part of the evening when limited staff were present. Such premises and staff are particularly vulnerable to this type of crime. The offending was premeditated and planned.

68           The sentencing judge backdated the sentence to commence on 25 November 2021 to take into account time spent in custody in relation to the crime of armed robbery. The allowance of nine months in that regard is not challenged. However, counsel for the appellant submitted that as the appellant had

18   No 4/2023

spent an additional four months in custody on other matters, the sentence failed to reflect adequately
the totality principle.

69          This contention is without merit, as is the contention that the sentence of 3 years and 9 months was manifestly excessive. The sentence could reasonably be described as lenient.

70   For these reasons I would dismiss the appeal against sentence.