Gogani v The Queen

Case [2014] NSWCCA 313

Court of Criminal Appeal

New South Wales
Case Title: Gogani v R
Medium Neutral Citation: [2014] NSWCCA 313
Hearing Date(s): 18 November 2014Supplementary submissions 28 November 2014 5 December 2014
Decision Date: 18 December 2014
Before: Price J at [1]
McCallum J at [70]
RA Hulme J at [72]
Decision:

(i) Appeal upheld and the conviction on count 1 is quashed.
(ii) Order the entry of a verdict of acquittal
on count 1.

(iii) Pursuant to s 7(1) of the Criminal Appeal Act 1912 (NSW), quash the sentence imposed on count 2.

(iv) In lieu, sentence the appellant to imprisonment comprising a non-parole period commencing 7 August 2013 and expiring on 17 December 2014. The balance of the term of the sentence will expire on 6 February 2015.

(v) Direct the appellant's release to parole forthwith.
Catchwords: CRIMINAL LAW - appeal against conviction - conspiracy - circumstantial case - whether verdict unreasonable or unsupportable - whether applicant should be re-sentenced for second count that was not subject to appeal.
Legislation Cited: Crimes Act 1900 (NSW) s 112(2),
s 154A(1)
Criminal Appeal Act 1912 (NSW) s 6(1),
s 7(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(j)
Cases Cited: Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326
Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category: Principal judgment
Parties: Yashar Gogani (Applicant)
Representation
- Counsel: Counsel: Mr Tim Game SC & Mr Simon Healy (Applicant)
Mr Neil Adams (Crown)
- Solicitors: Solicitors: P Ryan (Applicant)
J Pheils (Director of Public Prosecutions)
File Number(s): 2011/287337
Decision Under Appeal
- Before: Norrish QC DCJ
- Date of Decision:  09 August 2013
- Court File Number(s): 2011/00287337008

JUDGMENT

  1. PRICE J: Yashar Gogani, the applicant, was tried in May 2013 before his Honour Judge Norrish QC and a jury of 12 on an indictment containing the following charges:

    Count 1: That the applicant between the 27 January 2011 and 22 March 2011 at Sydney, in the State of New South Wales, did conspire with Neil Pettersen, Terry Faumuina and other unknown persons to break and enter the premises of the Perfume Network of Australia Pty Ltd ('The Perfume Network') in Rosehill and commit a serious offence within, namely larceny, in the circumstances of aggravation, namely being in company with Neil Pettersen, Terry Faumuina and other unknown persons.

    This is an offence of conspiracy to commit the offence of aggravated break, enter, and steal (aggravated by being in company). Whilst the substantive offence the subject of the conspiracy alleged against the applicant is an offence against s112(2) of the Crimes Act 1900 (NSW), the offence of conspiracy to commit such an offence itself is a common law offence.

    Count 2: That the applicant, on or about 20 March 2011 at…

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Gogani v The Queen [2014] NSWCCA 313
Case
[2014] NSWCCA 313
Decision Date

CaseChat Overview and Summary

In the matter of Gogani v The Queen, the Court of Appeal was tasked with reviewing the conviction of the applicant on count 1, which concerned a conspiracy to commit a serious indictable offence at the Perfume Network premises. The Crown's case against the applicant was circumstantial, relying on intercepted communications, surveillance reports, and other evidence to establish the applicant's involvement in the conspiracy. The Court was required to assess whether the verdict was unreasonable or unsupportable based on the evidence presented.

The primary legal issue before the Court was whether the circumstantial evidence, when considered as a whole, was sufficient to support the jury's conclusion that the applicant was guilty of conspiracy to commit a break, enter, and steal offence at the Perfume Network. The Court needed to determine if the evidence, when viewed in combination, allowed for no other reasonable explanation besides the applicant's guilt.

The Court of Appeal held that the evidence must be considered in its entirety rather than in isolation. The totality of the telephone intercept material, surveillance reports, and the applicant's attendance at Bunnings Warehouse, when combined, provided a coherent narrative that supported the jury's verdict. The Court found that the evidence was reasonably sufficient to establish the applicant's involvement in the conspiracy, and thus, the verdict was neither unreasonable nor unsupportable. The Court also noted that the applicant was not entitled to re-sentencing for the second count, which was not subject to appeal.

The Court dismissed the appeal and upheld the conviction on count 1. The Court further clarified that no orders were to be made in relation to the second count.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sole ground against his conviction on count 1 is that "the verdict is unreasonable and cannot be supported by the evidence." Crown case and evidence at trial: The case against the applicant on the first count was circumstantial. The Crown alleged that the applicant, Mr Pettersen, Mr Faumuina and other unknown persons, agreed to and planned to break into and enter the premises of the Perfume Network (a warehouse and retail premises) at 142 James Ruse Drive, Rosehill and to commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely in company with Mr Pettersen, Mr Faumuina and unknown persons. The Perfume Network's premises was located on the western side of James Ruse Drive between the Rosehill Racecourse and the Parramatta River and operated within a complex of other businesses in the vicinity of 142 James Ruse Drive. The evidence at trial revealed that the Perfume Network's Warehouse in March 2011 had several million dollars in stock. From 27 January 2011- 21 March 2011, the applicant was the subject of lawful telephonic interception and visual surveillance. The Crown adduced evidence from recordings of intercepted telephone material involving the applicant, Mr Pettersen, Mr Faumuina and others, and lawfully intercepted SMS messages said to be sent to, or sent by the applicant. The Crown also relied on surveillance reports of the applicant, Mr Pettersen and others conducted by undercover operatives within NSW Police, CCTV footage, and a tax invoice recording the visit to Bunnings Warehouse in Artarmon by Mr Pettersen, the applicant and another person. The evidence that the Crown principally relies upon is summarised in the chronology below. For ease of understanding the Crown case, the Crown submissions as to particular items of evidence are included in the chronology. Jonne Sofrenic, a Senior Intelligence Analyst with the Police Department, prepared ex C1, C2 and C3. Ex C1 is a UBD street map of Parramatta, Oatlands, Camellia and Harris Park. Ex C2 and C3 are aerial maps, with ex C3 being a zoomed in view of the relevant areas around the Perfume Network. Detective Senior Constable Wolsely, who took 8 photographs (ex A) of the Perfume Network on 3 May 2012, gave evidence. Detective Wolsely, took the photograph (ex A3) standing in front of the car spot where the black Suzuki Swift was, parked facing the Perfume Network. He stated (T9 24-27):"You can see the perfume warehouse there, which is the building on the left. You can see the start of the word "Wholesale", W-H, and P-E-R underneath, which is "Wholesale Perfumes." That's a view that would have been seen by the occupants in the black Suzuki." When asked about the distance between the location of the abandoned Isuzu truck (ex C3 4), Detective Wolsely agreed that the distance of the drive to the Perfume Network in the Rosehill Business Park (ex C3 1) would be approximately 350 metres (T380 46-48). Detective Senior Constable Benjamin Morgan, who took photographs of the Perfume Network on 6 May 2013, described what was depicted in the photographs (ex F). In cross-examination, Detective Morgan agreed that the Perfume Network is contained within an industrial or commercial complex on James Ruse Drive with a number of other businesses. He said that it is not possible to see the premises of the Perfume Network from a carpark directly across from James Ruse Drive. When asked about the number of lanes and how busy James Ruse Drive is, he replied (T53 23-24):"Not exactly sure on how many lanes it is, but it's a busy road, yes. There's a number - there's more than one lane each way, yes."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Adams urged the Court to consider the evidence in combination, whereby the totality of the telephone intercept material, surveillance reports, attendance of the applicant at Bunnings Warehouse Artarmon, establish that the planned offence was a break, enter and steal at the Perfume Network. He submitted that the appeal should be dismissed.Consideration In a circumstantial case, the evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521. As was said by the majority (Gummow, Hayne and Crennan JJ) in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]:"It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." Because of the particulars in the indictment, in order to establish that the applicant was guilty of count 1, the Crown was obliged to satisfy the jury beyond reasonable doubt that there was an agreement reached between the applicant, Mr Pettersen, Mr Faumuina and others whereby:(i) They were to commit a break, enter and steal offence;(ii) The targeted premises was the Perfume Network; and (iii) The applicant and others were to be physically present at the time of the commission of the planned offence. The applicant accepted both at trial and upon appeal that it was reasonably open to the jury to find that he, Mr Pettersen and Mr Faumuina were speaking in code and were planning to commit a crime. The principal submission, however, was that it was not open to the jury to conclude beyond reasonable doubt that the targeted premises was the Perfume Network and the applicant was to be physically present during the commission of the break, enter and steal. The circumstantial evidence to be considered as a whole and in combination includes: (a) The telephone conversation of 31 January 2011 between the applicant and Mr Pettersen whereby Mr Pettersen provides directions to him. This evidence is to be considered with ex C1 and ex G to indicate that the Perfume Network is in a location consistent with "down on your right" to which Mr Pettersen makes reference in the call;(b) On 1 February 2011, the applicant, Mr Pettersen and Mr Faumuina were observed by the police undercover operatives driving together in a car into the carpark in an industrial complex on the north east corner of Grand Avenue North and James Ruse Drive, Camellia at 5.02pm. The car was parked so that it was facing west. The men exited and re-entered the car on a number of occasions before driving off at 5.35pm. This carpark was over the other side of James Ruse Drive from the Perfume Network premises and the industrial complex in which these premises were located;(c) The telephone conversation between the applicant and Mr Faumuina on 5 March 2011 during which the applicant said: "But I don't need too many people to come to dinner just one or two because I'm going to be eating as well";(d) Mr Pettersen's telephone call on 7 March 2011 to the Perfume Network asking for its opening and closing times;(e) The applicant's attendance with Mr Pettersen at Bunning's Warehouse Artarmon on 8 March 2011 when a bolt cutter, garden gloves and axe were purchased;(f) The stealing of the Isuzu truck on 20 March 2011; (g) The telephone call on 20 March 2011 with Mr Pettersen during which the applicant asked "...and what time should I say to make, um, the booking is in the morning? Seven-thirty?";(h) The surveillance report of the applicant and Mr Pettersen getting out of the Mazda at 11.22pm on 20 March 2011 and walking out of sight. At 11.33pm they walked back to the vehicle. The applicant reached in through the driver's door window. He then walked around the back of the car to where Mr Pettersen was standing. The two of them crouched down, then stood up and walked north on Brickfield Street until they were out of sight; (i) The surveillance report of the two men a few minutes later standing next to the stolen truck. Mr Pettersen then drove the truck with the applicant following in the Mazda. At 11.52pm, the truck was parked on the eastern kerb of Arthur Street in Parramatta, 50 metres north of Hassall Street and the Mazda was parked behind it. At midnight, the Mazda was driven away from Arthur Street by the applicant with Mr Pettersen sitting in the passenger seat; and (j) The SMS message sent at 1.57am on 21 March 2011 from the applicant to Mr Faumuina "from the wog cancel cancel never ever don't write back to this!!"