Et v Driscoll
[2018] WASC 406
•24 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ET -v- DRISCOLL [2018] WASC 406
CORAM: TOTTLE J
HEARD: 23 NOVEMBER 2018
DELIVERED : 24 DECEMBER 2018
FILE NO/S: SJA 1016 of 2018
BETWEEN: ET
Appellant
AND
DARREN DRISCOLL
Respondent
ON APPEAL FROM:
For File No: SJA 1016 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S R MALLEY
File Number : BM 586 of 2017, BM 587 of 2017
Catchwords:
Criminal law - Appeal against conviction - Burglary and stealing - Where only issue is the identity of offender - Appellant's fingerprint found on broken bottle outside burgled premises - No other evidence connecting appellant to the commission of the offences - Whether reasonable hypothesis consistent with innocence excluded by the prosecution
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14
Result:
Application for leave to appeal granted
Appeal allowed, conviction quashed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P Tobin |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Counsel v Glynn [2017] WASC 7
Kalbasi v The State of Western Australia [2018] HCA 7
Samuels v The State of Western Australia [2005] WASCA 193
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA; (2005) 224 CLR 300
Wells v The State of Western Australia [2017] WASCA 27
WS v Gardin [2015] WASC 97
TOTTLE J:
Introduction
The appellant applies for leave to appeal against his conviction in the Children's Court of Western Australia of one count of burglary and one count of stealing arising out of a single incident at the 18 Degrees Restaurant in Broome on 16 November 2017.[1] The appellant was convicted of those offences by a Magistrate following the conclusion of a trial which took place on 31 January 2018.
[1] Contrary to Criminal Code Compilation Act 2013(WA) s 104(2)(c) and s 378, respectively.
Factual background
In the Children's Court the essential facts were not disputed. The appellant consented to the tender by the prosecution of the statements of all the prosecution witnesses. The complainant was, however, called to give evidence orally and he was cross-examined by the appellant's counsel. The facts are as follows.
Shortly before 11.00 pm on 16 November 2017 the 18 Degrees Restaurant in Broome was broken into and a number of bottles, some containing alcoholic drinks and some not, were stolen. Entry was gained by breaking a glass panel of a door at the restaurant.
The restaurant had been open for business earlier in the evening. The complainant was the owner of the restaurant and had left the restaurant at about 10.45 pm having locked up and set the alarm. Some minutes before leaving the premises, as part of his daily routine, the complainant had walked around the outside of the restaurant to collect any litter or other items that may have come from the restaurant's alfresco dining area. The complainant said that he walked around the perimeter of the premises at 10.35 pm on the night of the offences and did not find any rubbish.
The complainant was notified of the break‑in at 11.00 pm by the security company that monitored the alarm. He returned to the restaurant to find that police officers were already present. Police officers had arrived at 11.14 pm.
A broken unopened bottle of beer with liquid pooled around it was found on the footpath outside the premises adjacent to an alfresco dining area. The brand of the beer was Asahi. The broken bottle was about 10 m from the front door of the restaurant but less than a metre from the boundary which at that point consists of a low wall on top of which there is a fence enclosing the alfresco area. The evidence included two photographs which showed that the broken bottle was very close to the boundary of the restaurant as just described.
A fingerprint was taken from the neck of the bottle and it was found to be the fingerprint of the appellant.
It was not disputed in the Children's Court that the restaurant stocked Asahi beer in bottles of the kind broken on the footpath outside the restaurant with the appellant's fingerprint on it. It was not disputed that some bottles of Asahi beer had been stolen.
Early on the morning of 17 November 2017 the police searched the area surrounding the restaurant and found other bottles that had been stolen from it. The police officers found a bottle of red wine 150 m from the restaurant, a bottle of hazelnut coffee syrup in a ditch adjacent to the path leading to Town Beach and three further bottles, being a bottle of lime cordial, a bottle of sake and another bottle with a black alcohol pourer attached, near a picnic bench in the 'park and grasslands at Town Beach'.
Having identified that the broken beer bottle had the appellant's fingerprint on it, the police officers conducted a search of the appellant's home on 22 November 2017. The police later conducted a video interview with the appellant in the presence of the appellant's aunt. In the course of the interview the officer asked, 'do you know where the restaurant is that I am talking about?' to which the appellant responded by shaking his head and saying 'nah'.
The officer then showed the appellant a photograph of the restaurant, and asked, 'have you been to this place before?' In response the appellant shook his head.
The officer showed the appellant a series of photographs of the bar area of the restaurant and asked 'have you been in there before?'. The appellant shook his head and said no. The officer showed the appellant a series of photographs of the windows that were smashed at the restaurant to gain entry and the following exchange took place:
Officer: Have you seen any of that damage before?
Appellant: Nope.
Officer: Did you go inside there that night?
Appellant: Nope.
Officer: Do you remember who you were with or what you were doing?
Appellant: No.
[…]
Officer: Were you home or were you out?
Appellant: I was at home.
Officer: Did you go for a walk down town beach that night?
Appellant: No
Officer: When was the last time you were down around that area?
Appellant: Um - it's been a long time.
[…]
Officer: Can you give me an explanation for why your finger prints were taken from there?
Appellant: I don't know.
Appellant's Aunt: They were at Martin Court. They were walking around in Martin Court at 12 o'clock. (emphasis added)
The sole issue at trial was the identity of the offender - was it the appellant who committed the burglary and theft?
At trial the appellant's case rested on the following propositions:
(a)There was no direct evidence connecting him to the burglary.
(b)There was no evidence that the broken beer bottle was one of the bottles taken from the restaurant.
(c)There was no evidence as to how the appellant's fingerprint came to be on the beer bottle.
(d)There were reasonable inferences that could be drawn from the facts that were consistent with the appellant's innocence.
The Magistrate's reasons
The Magistrate directed himself as to the standard of proof and the principles relating to circumstantial evidence.
The Magistrate accepted the complainant's evidence. He said:[2]
In my view, based on his evidence I'm able to be satisfied that if a broken stubby which was located approximately within a metre of the front door was present when he left those premises he would have observed it. There's no doubt about that. He seemed to me, based on the evidence, a reasonably meticulous man. (emphasis supplied)
[2] ts 20, 31 January 2018.
It is common ground that in making the observation that the broken stubbie was found within a metre of the front door the Magistrate made an error. The evidence of the police officers was to the effect that the broken bottle was approximately 10 m from the front entry door and less than a metre from the boundary of the restaurant premises.[3]
[3] Exhibit B - Statement of Aimee Kell [12]; Exhibit D - Statement of Aaron Hitchcock [11].
The Magistrate referred to the fact that there was no dispute that the offences of burglary and stealing had taken place. The critical part of his Honour's reasoning was as follows:[4]
I find that [the broken bottle] simply wasn't there when he left those premises. The witness gave evidence that the beer bottle broken outside was an Asahi and Asahi bottles were stolen during the course of this burglary. The alarm to the premises went off, on his evidence, at 11 pm and by 11.14 the police had arrived and the found the bottles on the ground outside the front of the restaurant with liquid from that bottle present. There is no dispute that the accused was not seen at the location.
A forensic report was undertaken of the remnants of the glass bottle and it's established beyond reasonable doubt and is not in dispute that the accused's fingerprints were found on that bottle. There is no dispute that the property belonged to another, it was entered without consent and at the time the offender intended, in my view the only inference to be drawn, was to commit an offence and did in fact commit the offence of stealing.
The police case revolves around the fingerprint on the bottle. In all other respects the charge is proven. It just really comes down to the question of identity. In this case the accused gave a record of interview such as it was. Whilst it's essentially - no admissions were made, effectively he was unable to say the fingerprint got there and goes further to say simply that he wasn't there on the night. One can draw that inference but essentially, accepting those comments, the accused carries no onus. It's just that at that point of time he gave no explanation as to how that fingerprint came there but, as I say, to that extent the prosecution still carries the onus beyond reasonable doubt to exclude all other possibilities.
Having said the bottle in this case is what one might call the smoking gun, the owner leaves at 10.45. The alarm goes off at 11 and the police find the bottle at the front of the premises at 11.14. The bottle found is a bottle of the type stolen from - sorry, the type that had been stolen from the restaurant. I accept the evidence of [the complainant] who said 'Well, that's what we stocked' and that items of that type were missing from the restaurant (indistinct) suggest, in my view, that someone other than the offender in such short period of time happened to be walking by carrying a Asahi bottle, being the exact type that was stolen and drops it in front of the building, in my view, is in the realm of implausibility.
It is not the court's role, in my view, to try and speculate as to what I consider to be unreasonable explanations. In my view, the only inference which is reasonably available given the timeframe, the presence of the fingerprint belonging to the accused was that I find that it came about by reason of the accused entering the restaurant and stealing the alcohol. I'm satisfied the charge is proven beyond reasonable doubt in relation to each of the charges.
[4] ts 21 - 22, 31 January 2018.
The approach to the grant of leave to appeal
Section 9(1) of the Criminal Appeals Act 2004 (WA) (the Act) stipulates that leave to appeal is required for each ground of appeal. Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success,[5] meaning that the ground has a rational and logical prospect of succeeding.[6] The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal.[7]
[5] Criminal Appeals Act 2004 (WA) s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[7] Criminal Appeals Act 2004 (WA) s 9(3).
The grounds of appeal and disposition
The amended notice of appeal included three grounds. At the hearing however, counsel for the appellant advised that ground 2 was no longer relied upon.[8]
Ground 1
[8] ts 3.
Ground 1 was formulated as follows:
The learned Magistrate erred in fact when determining where a bottle with the appellant's fingerprint on it was situated in relation to the premises which was burgled. The learned Magistrate then relied upon this incorrect factual finding to convict the appellant based on its proximity to the place (18 degrees) that was burgled.
Appellant's submissions
The thrust of the appellant's submissions in relation to ground 1 is that the Magistrates' factual error in finding that the bottle containing the appellant's fingerprint was located approximately within a metre of the front door of the restaurant, was central in the Magistrate's reasoning to a finding of guilt.[9]
Respondent's submissions
[9] Appellant's submissions [23].
The respondent accepts that the Magistrate's reference to the bottle being 'within a metre of the front door' was an error of fact. The respondent submits, however, that the ground of appeal should be dismissed as no substantial miscarriage of justice has occurred. That submission was developed as follows:
(a)the evidence crucial to the prosecution case was that the broken bottle was found outside the restaurant;
b)the significance of this evidence was that the broken bottle was not on the footpath before the offences were committed and its significance was not materially diminished by the fact that it was found on the footpath a metre from the restaurant as opposed to a metre from the broken glass door; and
c)thus the presence of the broken bottle in close proximity to the premises, supports the inference that the bottle was stolen from the restaurant and connected to the burglary.
Section 14(2) of the Act
Section 14(2) of the Act is in the following terms:
…even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The court must decide whether a substantial miscarriage of justice has actually occurred.[10]
[10] Counsel v Glynn [2017] WASC 7 [76] (Banks-Smith J).
There are many possible kinds of miscarriage, and as the High Court has said, there can be no single description.[11] In Kalbasi v The Sate of Western Australia Nettle J discussed the case of Weiss v The Queen and stated that it had laid down three fundamental propositions.[12] First, in applying the proviso, an appellate court must itself decide whether a substantial miscarriage of justice has occurred. Secondly, the task is not an exercise in speculation or prediction: it is an objective inquiry not materially different from other appellate tasks and it is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial. Thirdly, the standard of proof is proof beyond reasonable doubt. Those three fundamental propositions are well known and well understood.
[11] Kalbasi v The State of Western Australia [2018] HCA 7 [134] (Nettle J), [152] (Edelman J).
[12] Kalbasi v The State of Western Australia [2018] HCA 7 [112] citing Weiss v The Queen [2005] HCA; (2005) 224 CLR 300.
Section 14(2) of the Act was considered in detail by Mitchell J (as his Honour then was) in WS v Gardin. His Honour observed:[13]
In my view, where the reasons of a summary court indicate that the court has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then this court can conclude that no substantial miscarriage of justice has occurred by reason of the error. That will be so whether or not this court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record. If the only errors established are factual errors of this kind, then this court will appropriately dismiss the appeal under s 14(2) of the CA Act.
However, where the primary court's reasons show the error of fact to be material to the decision to convict then there will ordinarily have been a substantial miscarriage of justice unless this court is satisfied on a review of the trial record than conviction was inevitable on the evidence adduced at trial.
This conclusion gives weight to the requirement that a summary court is required to give reasons for its decision, and the reasons will ordinarily indicate whether an error of fact is inconsequential. If an error of fact may have significantly influenced a finding of guilt, depriving an accused of an opportunity of acquittal, then it may be fairly concluded that the trial process has miscarried. In such a case it will be no answer to say that the appellate court believes the accused to be guilty and it was merely open to the trial court to adopt a different view. In such a case it would also be open to the trial court, which is in the best position to determine questions of fact on evidence to has seen and heard, to take a different view from the appellate court.
Disposition
[13] WS v Gardin [2015] WASC 97 [239] - [241].
I do not consider that the error made by the Magistrate as to the location of the broken bottle was material. This is because the significance of the broken bottle did not lie in its exact location but rather in the fact that it was not present when the complainant walked around the outside of the restaurant shortly before locking up but it was present when the police officers arrived at the scene. This fact supported the inference the bottle was stolen from the restaurant - it was not relevant to the critical issue being the identity of the offender.
I conclude that, while the Magistrate did make an error, the error was immaterial to the decision to convict and accordingly there has been no substantial miscarriage of justice. Leave to appeal on ground 1 is refused.
Ground 3
Ground 3 was formulated as follows:
The learned Magistrate erred in fact and law in concluding, in the absence of any other evidence, that because the appellant's fingerprint was on a bottle found outside the premises, the appellant must have entered the building and committed the burglary.
The parties' submissions were made on the basis that the ground asserted that the verdict was unreasonable or could not be supported by the evidence. There was no issue between the parties as to the principles applicable to appeals on the ground that the verdict was unreasonable or cannot be supported by the evidence or as to the principles governing criminal cases that turn on circumstantial evidence. Both sets of principles were summarised in Wells v The State of Western Australia as follows:[14]
[14] Wells v The State of Western Australia [2017] WASCA 27 (Mazza JA, Mitchell JA & Beech J) [13] ‑ [14].
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden-Clay as follows:
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. (citations omitted)
The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence summarised in Wells v The State of Western Australia apply by analogy to a trial before a magistrate.[15]
Appellant's submissions
[15] The State of Western Australia v Olive [2011] WASCA 25 [39] - [44] (Buss JA).
It was submitted on the appellant's behalf that there were a 'plethora of alternative hypotheses' and numerous reasonable inferences that were open on the evidence available to the learned Magistrate, other than that of the appellant entering the restaurant and stealing alcohol or having any connection to the stealing of the alcohol and bottles of Asahi beer.[16]
[16] Appellant's summary of argument [28], see also ts 15.
In oral submissions counsel for the appellant identified four alternative hypotheses reasonably open on the evidence. Essentially each of those hypotheses involved the underlying proposition that the appellant touched the bottle after the burglary but took no part in committing it. In conjunction with those hypotheses counsel for the appellant stressed that there was no direct evidence which proved that the accused had entered the premises.[17]
Respondent's submissions
[17] ts 13.
The respondent summarised the elements of the circumstantial case as involving the following:
a)Unauthorised entry into the restaurant between 10:45 pm and 11.00 pm.[18]
b)Alcohol, including bottles of Asahi mid-strength beer, were stolen during the burglary.[19]
c)Sometime between approximately 10:35 pm and 11:14 pm when police arrived, an Asahi beer bottle (same as those stolen) with the cap still on was broken outside the premises.[20]
d)The appellant's fingerprint was found on the neck of the broken beer bottle. The respondent relies on the statement of Forensic Crime Scene Investigation Officer David Massey, which was not in dispute.[21]
[18] ts 7, 10, 31 January 2018; Exhibit A - Statement of Ryan Henderson [7], [9].
[19] Exhibit A - Statement of Ryan Henderson [8], [14], [11]-[12]; ts 7, 8, 12.
[20] Exhibit I - photograph marked D3 and D4; Exhibit A - Statement of Ryan Henderson [6] - [7]; ts 8, 9, 11, 31 January 2018.
[21] Exhibit H - Statement of David Massey.
The respondent submits that the hypothesis considered by the Magistrate ‑ that is, that the appellant handled an Asahi bottle that was not stolen, following which either he or someone else deposited that bottle on the footpath outside the restaurant within the short period of time between the restaurant being locked up and the police arriving on the scene - was implausible and not reasonable. It was argued that the inference of guilt was the only inference open to reasonable people on a consideration of all the facts in evidence.
In oral submissions counsel for the respondent argued that the alternative hypotheses identified by the appellant that he had innocently touched the bottle was 'pure conjecture'.[22] The respondent submitted in effect that because the appellant said in the course of his interview with the police that it 'would have been a long time' since he was in the area[23] the possibility that he had innocently handled the broken bottle ceased to exist as a rational inference and it was no more than conjecture or, at least, that the rationality of the inference was diminished. [24]
Disposition
[22] ts 26.
[23] Exhibit J at 3:41.
[24] ts 27.
The authorities make it clear that before setting aside a conviction on the grounds that it is unreasonable or cannot be supported by the evidence regard must be had to the advantage that the trier of fact had in seeing and hearing the witnesses give evidence. In this case because the evidence of all but one witness was tendered by consent and only the complainant gave evidence, this advantage is of limited significance.
The circumstances that must be considered in this case include not only the circumstances identified by the respondent as supporting the proposition that the appellant's guilt is the only rational inference that can be drawn but include the absence of any forensic evidence that the appellant had been inside the restaurant and the absence of any evidence that he had touched any of the other bottles that had been stolen, later abandoned and found by the investigating police officers the next morning. The absence of such evidence highlights the limited evidentiary foundation upon which the prosecution case was based.
In my view there is a reasonable hypothesis consistent with the appellant's innocence that has not been excluded by the prosecution, namely, that the appellant was not an offender in any capacity but was either given the bottle on which his fingerprint was found by the offenders or that it was dropped by the offenders and he picked it up and subsequently dropped it. This hypothesis can be defended against the criticism that it is conjecture or speculation on the basis that it is consistent with the absence of any forensic evidence that the appellant was inside the restaurant and the absence of any forensic evidence that he had touched any of the stolen bottles found by the police the following morning.[25]
[25] Exhibit H - Statement of David Massey.
In reaching the view that there is a reasonable hypothesis consistent with the appellant's innocence I have taken into account what was said by the appellant when he was interviewed by the police and the statements made by him to the effect that he had not been to the restaurant before and that he had not been in the area (of Town Beach) for a long time. The appellant was 15 years of age when interviewed by the investigating officer. He responded to the questions asked of him with shakes of his head and monosyllabic or very brief answers. He presented as an immature teenager and I am reluctant to place any weight on what was said by the appellant in the interview or upon his failure to provide an explanation consistent with his innocence (this observation does not imply any criticism of the investigating officer). There is a possibility that the appellant was lying to the officer about where he was at the time the offence was committed but, of course, this does not connote guilt. I find that there was a rational hypothesis consistent with the appellant's innocence open to the magistrate, and that this must have given rise to a reasonable doubt about the appellant's guilt.
It follows from my conclusion that there was a reasonable hypothesis consistent with innocence that was not excluded by the prosecution that the conviction was unreasonable and cannot be supported by the evidence. I will grant leave to appeal and allow the appeal and quash the conviction.
The respondent accepted that if the appeal was allowed on the ground that the conviction was unreasonable or cannot be supported by the evidence then it would not be appropriate to order a new trial. I agree and will not order a new trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle28 DECEMBER 2018
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