Hersi v The Queen
[2021] VSCA 224
•20 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0125
| CABDIRAHMAN HERSI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU, McLEISH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 August 2021 |
| DATE OF JUDGMENT: | 20 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 224 |
| JUDGMENT APPEALED FROM: | [2020] VCC 347 (Judge Dawes) |
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CRIMINAL LAW – Appeal – Conviction – Applicant acquitted of charge of armed robbery but convicted of another charge of armed robbery and associated property offences – Two victims – Alleged offending occurred in same vicinity over short period – Only identity of offender in issue – Differences in victims’ identification evidence – Whether guilty verdicts unreasonable – Whether inconsistent verdicts – MacKenzie v The Queen (1996) 190 CLR 348, applied – Whether jury obliged to accept common prosecution and defence proposition that single offender for all offences – Open to jury to approach case on different basis – Jury obliged to consider each charge separately – Whether diversity of verdicts revealed jury posited existence of co-offender without evidence – Logical path to verdict which did not involve speculation – Circumstantial evidence stronger for charges on which jury convicted – No inconsistency – Leave to appeal refused – Criminal Procedure Act 2009 s 276(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Marshall | Chris McLennan & Co |
| For the Respondent | Mr C Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
McLEISH JA
EMERTON JA:
On 20 March 2020, the applicant was found guilty by a jury in the County Court of one charge of armed robbery, one charge of obtaining property by deception and three charges of attempting to obtain property by deception. The applicant was acquitted of another charge of armed robbery.
The applicant seeks leave to appeal against his convictions on the ground that, by reason of his acquittal on one of the charges of armed robbery, his convictions on the remaining charges were unreasonable and cannot be supported.
For the reasons that follow, leave to appeal should be refused.
Overview of charges
It is convenient to set out an overview of the events that the prosecution alleged before turning to the evidence in greater detail.
The offences occurred on the night of 25 June 2018 at the JJ Holland Park in Kensington. The applicant lived near the park with his father and siblings.
It was first alleged that in the park, at some time after 10:35 pm, the applicant robbed Mr Kuok Yong Ng of two credit cards at gunpoint, using a long firearm (charge 1 – armed robbery). It was then alleged that he proceeded to a ‘Redi’ ATM located on Macaulay Road, Kensington, several streets from the park. On three occasions, all shortly before 11 pm, he was alleged to have attempted to withdraw $1,000 using the two credit cards (charges 2, 3 and 4 – attempting to obtain property by deception).
Next, it was alleged that the applicant returned to the scene of the first armed robbery. It was alleged that at around 11:30 pm, at roughly the same location in the park at which he robbed Mr Ng, the applicant robbed Ms Ana Echeverri-Alvarez at gunpoint, this time with a pistol (charge 5 – armed robbery). Her wallet, a mobile phone, two bank cards, a small amount of cash, and some other personal items, were taken.
Finally, it was alleged that the applicant proceeded to a Commonwealth Bank ATM located on Racecourse Road, Flemington, nearly twice as far away from the park as the first ATM. At about 11:46 pm, he was alleged to have used the Commonwealth Bank mobile banking application on Ms Echeverri-Alvarez’s phone to make a ‘cardless cash’ transaction, withdrawing $500 cash from the ATM (charge 6 – obtaining property by deception).
At trial, it was not in dispute that the offending occurred. The central issue was the identity of the offender. The applicant filed a notice of admission of facts in which it was admitted that both Mr Ng and Ms Echeverri–Alvarez were victims of the armed robberies described, and that each of the attempted and successful ATM transactions constituting the property offences occurred.[1]
[1]Evidence Act 2008 s 184.
Only one issue remained in dispute: whether it was the applicant who had committed the offences. In that context, both sides invited the jury to proceed on the basis that all offences had been committed by the same person. It is apparent from its verdicts that the jury steered a different course.
Prosecution evidence
The prosecution case consisted of the evidence of the two victims (Mr Ng and Ms Echeverri-Alvarez), along with the informant, Detective Senior Constable Joseph Reiher, Detective Senior Constable Gunwinder Singh Gill (who was present for the applicant’s record of interview), and First Constable Andrew Bartlett (who arrested the applicant).
Mr Ng gave evidence that he arrived at the South Kensington railway station at around 10:35 pm on 25 June 2018, and exited through the park. The offender, an adult male, approached and confronted Mr Ng in a dimly lit part of the park, on a pathway leading to Mercantile Street, Kensington. Mr Ng described the male as about, or just short of, six feet tall,[2] of slim build, and with a ‘very oval’ face. Mr Ng said that the male was wearing:
[2]Mr Ng estimated the offender’s height as between five feet seven inches and six feet in examination-in-chief, and as between five feet five inches and six feet in cross-examination.
(a) a balaclava, which fully covered his face other than his eyes and mouth;
(b) a dark green jacket with some yellow colouration, similar to a camouflage jacket, with four open khaki pockets;
(c) dark gloves (which Mr Ng admitted he had not mentioned in his initial statement to police);
(d) a grey tracksuit; and
(e) light, greyish–white running shoes which were neither red nor black.
Mr Ng said that he observed that an exposed portion of the offender’s wrist between his jacket sleeve and glove had a dark brownish colour. By the time of trial, he had come to vividly recall, by means of ‘flashback’, that this was the offender’s skin colour. However, in his evidence at the applicant’s committal hearing, he had said that he had thought the dark colour between the sleeve and glove was the offender’s clothing, rather than his skin.
Mr Ng said that the offender blocked his passage, and brandished a dark-coloured rifle roughly a metre long. He first demanded Mr Ng’s wallet, and then demanded and seized two of his credit cards. The offender spoke ‘good English’, Mr Ng said, but with a recognisably ‘African accent’. The offender cocked the rifle and demanded the PIN numbers to the credit cards, which Mr Ng provided. The offender then turned and ran in the direction of Housing Commission flats on Altona Street, Kensington. Mr Ng then returned home, and after contacting his banks, made a report to police.
As mentioned, it was not in contest that Mr Ng’s stolen credit cards were unsuccessfully used at the ‘Redi‘ ATM on Macaulay Road, Kensington, at 10:53 pm, 10:57 pm and 10:58 pm on the night in question. Detective Senior Constable Reiher gave evidence that police were able to obtain CCTV footage from around the times of the unsuccessful transactions. The footage came from two cameras, one inside and one outside the building in which the ATM was located. Neither camera showed the ATM itself.
That CCTV footage was tendered. In brief, it showed a male wearing dark gloves and a balaclava, a dark two-toned top and dark pants with a white emblem or insignia on the upper left leg. He carried a dark jacket above his head. He could be seen approaching the area where the ATM was located just before 10:49 pm, and retracing his steps just before 10:52 pm.[3] He could then be seen approaching the same area just after 10:54 pm and again retracing his steps a minute or so later.
[3]The relevant times were ascertained by DSC Reiher by adjusting the time shown on the timestamps on the footage by the period the timestamps on live footage differed from the actual time.
Under cross-examination, DSC Reiher conceded that the CCTV footage from one of the cameras in respect of the ‘Redi’ ATM was ‘stopping and starting’ and not recording completely; at another point where there had been a suggestion of a person approaching the ATM, he was unable to play back the footage.
The second victim, Ms Echeverri-Alvarez, gave evidence that, after alighting at South Kensington station at around 11:20 pm, she walked through the park towards Kensington Road. Before she reached the end of the park, she was approached by a male. As he came within 20–30 metres of her, she realised that he was pointing a gun at her. She said that he was about 175-180 cm tall and of slim build. She stated he was wearing ‘all black’, a ‘black sweater’ with a raised neck and long sleeves, black jeans, black boots and a black balaclava. The balaclava covered all of his face (including his mouth) except for his eyes. The skin around his eyes was dark brown, and relatively youthful. Ms Echeverri-Alvarez could not recall whether he was wearing gloves. The gun he was carrying was a short pistol, around 15 to 20 cm long.
The offender said ‘Give me your iPhone now’, with an accent of some sort. She did not have an iPhone but instead another type of mobile phone. He then told her to give him that mobile phone, which she did. Afterwards, he demanded she give him her bank cards and then her wallet. She did so. The wallet contained a $10 note, and possibly some other small amounts of money. The offender demanded the passcode for her Commonwealth Bank mobile banking application, which was accessible on her mobile phone. Once she had provided it, he left the park and walked in a north-easterly direction along Kensington Road towards Altona Street. Ms Echeverri-Alvarez returned home and contacted police. It was not in dispute that after the ‘cardless cash’ transaction at 11:46 pm, Ms Echeverri-Alvarez’s phone was used again at 12:16 am, and then not used again until 4:50 am.
Similarly, it was not in contest that at 11:46 pm on the night in question, Ms Echeverri-Alvarez’s Commonwealth Bank mobile banking application was used to successfully withdraw $500 as a ‘cardless cash’ transaction from a Commonwealth Bank ATM at 292 Racecourse Road, Flemington. DSC Reiher gave evidence that police obtained CCTV footage from cameras located at a building across the road from the ATM. The cameras faced southwards, onto a paved area leading to Pridham Street that contained walkways and a toilet block. That CCTV footage was also tendered.
In brief, much like the CCTV footage from the vicinity of the ‘Redi’ ATM, this footage showed a male wearing gloves and a balaclava, a dark two-toned top and dark pants with a white emblem or insignia on the upper left leg, carrying a jacket above his head. It showed the person approaching on foot from Pridham Street at just before 11:45 pm on the night in question, departing towards Pridham Street some minutes later, returning from Pridham Street at around 12:06 am and departing again towards Pridham Street shortly afterwards.
First Constable Bartlett gave evidence that, on the relevant evening, he was on patrol in the CBD when he received information about an armed robbery in South Kensington. He proceeded to South Kensington, arriving at approximately 11:50 pm. In his vehicle, he initially patrolled streets near the park, including Macaulay Road, Derby Street, Altona Street and Epsom Road. After receiving some further information, he proceeded to another location. At approximately 12:25 am, while patrolling Smith Street, Kensington, he saw the applicant, wearing dark clothing, including a dark ‘puffer’ jacket, emerge from a laneway on to the street. The applicant was stopped and searched. $510 in cash was located, along with a black balaclava (located in his jacket pocket) and some black gloves. The applicant handed over the cash, was co-operative and polite, and provided his name and address to First Constable Bartlett. The applicant was arrested and taken to the Melbourne West police station.
Detective Senior Constable Gill gave evidence that, in the early hours of 26 June 2018, he attended the Melbourne West police station and was present for the applicant’s initial police interview. Photos of the applicant taken at the time of his arrest, as well as photographs of the applicant’s jacket, gloves, balaclava and sweatshirt, were tendered. The jacket was a high-collared black ‘puffer’ jacket without visible exterior pockets. The gloves were black full-fingered fabric gloves, with white patterning on the palms. The sweatshirt was dark with a raised collar. A thick light-coloured band and text appeared across the chest of the sweatshirt. Photographs of the applicant taken at the time of his arrest show that he is nearly six feet tall, and was wearing black high-ankled shoes, black pants with a white Puma-brand insignia on the upper left leg, and a long-sleeved black T–shirt.
The applicant’s record of interview was tendered. During the interview, the applicant denied any wrongdoing. He said that he had $500 in his possession, half of which belonged to his cousin, because he owed the money to his father; he had withdrawn $280 from his own bank for that purpose previously. He also stated that he had arranged to meet with his cousin, Ibrahim, who was at the Somali Kitchen restaurant at 284 Racecourse Road, Flemington (a few doors up from the Commonwealth Bank ATM) at 11:50 pm on the night in question, but it had been closed and Ibrahim did not return to collect him. DSC Reiher gave evidence that Ibrahim had been interviewed by police as to his whereabouts on the night in question and refused to make a statement, and that police had attended Ibrahim’s premises with a warrant where they also found a black balaclava in his car.
The applicant called no evidence in his defence.
Prosecution case
The prosecution advanced a case which depended on a chain of inferential reasoning, involving three steps.
The first step was that the jury could be satisfied that the two armed robberies were committed by the same offender. This involved coincidence reasoning. The prosecution submitted that the similarities between the two armed robberies were so overwhelming that they excluded the possibility that the person who robbed Mr Ng was someone other than the person who robbed Ms Echeverri-Alvarez. The similarities included:
(f) the proximate timing and the common location of the two armed robberies;
(g) that there was some, albeit incomplete, consistency in the description of the offender given by Mr Ng and Ms Echeverri-Alvarez, at least in respect of his height, build and skin colour, and that he was wearing some dark clothing and a balaclava; and
(h) that there was some consistency in the description of the modus operandi of the offender given by Mr Ng and Ms Echeverri-Alvarez, at least as to the targeting of disembarking train passengers, the use of a firearm, the demanding of PIN numbers, and the attempts to withdraw cash from a nearby ATM shortly after each robbery.
Taking those similarities into account, the prosecution submitted that the jury could be satisfied that it was completely improbable that the two robberies ‘took place coincidentally’, and were carried out by different offenders.
The second step was that, having been satisfied that the same person committed both armed robberies, the jury could also be satisfied that the same person was guilty of the remaining charges, relating to the attempted and successful ATM withdrawals which occurred shortly after each robbery, and involved the use of material obtained in the robberies: Mr Ng’s credit cards and Ms Echeverri-Alvarez’s mobile phone.
The final step in the prosecution’s case was that the jury could be satisfied beyond reasonable doubt that the applicant was guilty of at least one of the armed robberies. The circumstantial evidence advanced in support of this final premise largely related to the offences against Ms Echeverri-Alvarez. This evidence included that:
(i) both Ms Echeverri-Alvarez’s description of the offender, and the CCTV footage from the building on Racecourse Road, matched the dress and appearance of the applicant at his arrest, and were consistent with the balaclava and gloves with which he was found;
(j) the applicant was found, shortly after the offending the subject of charge 6, not far from the Commonwealth Bank ATM, with an amount of cash ($510) consistent with the $500 withdrawn using Ms Echeverri-Alvarez’s Commonwealth Bank application and the roughly $10 in cash stolen from her[4] (including a $10 note such as had been in her wallet); and
(k) Ms Echeverri-Alvarez’s phone records showed that her phone was used shortly before and after, but not during, the period of the applicant’s police interview.
[4]See [19] above.
The prosecution thus submitted that the jury could conclude that the applicant, having committed one of the armed robberies, had also committed the other, as well as the remaining charged offences.
Defence case
Counsel for the defence ultimately advanced a primary and an alternative case. By his primary case, counsel accepted the first and second steps in the prosecution’s case. That is, he suggested that:
(l) the same offender had committed both armed robberies; and
(m) the offender who committed both armed robberies also committed the property offences.
The primary defence case was that, if the jury was not satisfied that the applicant had committed one of the armed robberies, it could not be satisfied that he had committed the other.
In particular, counsel submitted that the jury could not be satisfied beyond reasonable doubt that the applicant was guilty of the armed robbery for which the circumstantial case was the weakest, namely that of Mr Ng. It was noted that Mr Ng’s evidence had changed to become more definitive at trial, including as to the offender’s height, skin colour, and whether he was wearing gloves. But in any event, Mr Ng’s evidence as to the offender’s attire was in key respects inconsistent with the applicant’s attire at his arrest. Mr Ng’s evidence was that the offender was wearing a four-pocketed camouflage jacket, light-coloured runners and grey tracksuit pants, not the pocketless black jacket, black pants and black shoes which the applicant was wearing when arrested.
The defence therefore submitted that the jury was unable to be satisfied that the applicant had committed the first armed robbery, and was bound to be similarly unsatisfied that the applicant had committed the second armed robbery, or the remaining offences.
The defence also advanced, in parallel, an alternative case. This involved contesting rather than adopting the first step in the prosecution case, namely that the two armed robberies must have been committed by the same offender. In support of this argument, the defence highlighted inconsistencies in the accounts of the two victims as to the appearance and attire of the offender, and the type of weapon used. In this part of his address, counsel invited the jury to reject the prosecutor’s argument that the similarities between the offences were so strong that they could infer that they were committed by the same person. On that basis, the jury were invited to conclude that the armed robberies were not committed by the same offender.
Judge’s charge
In her charge, to which no objection has been taken, the judge reminded the jury that they needed to consider the charges separately:
you must be careful not to allow convenience to override justice. Both the prosecution and the defence are entitled to have each charge considered separately. It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, that he must be guilty or not guilty of another.
It would also be wrong, if you do find the accused guilty of one of the charges, to reason that because he has engaged in that conduct, he is the kind of person who is likely to have committed another charge. Each charge must be considered separately, in light only of the evidence which applies to it. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is yes, then you would find him guilty of that offence. If the answer is no, then you would find him not guilty …
Later in her charge, the judge said, similarly, that:
if you are not satisfied that one charge is proven, you could not use that in any way as bearing on the guilt of the accused on another charge.
In her charge, the judge described the first step in the prosecution case at length. She referred to the similarities identified by the prosecution — including the similarities in the descriptions of the appearance and attire of the offender and the manner of offending — and stated:
The prosecution say that when you consider the similarities overall, they are so great that you should find that the same person is responsible for each offence. The prosecution then say that if you find Mr Hersi committed one of the armed robbery offences, then you can use that to conclude that he also committed the other.
So I am just going to break that down. What they are saying is, if you find one charge of armed robbery, for example, if that is proven, then the prosecution invite you to conclude that the same offender is responsible for the other in light of the overall similarities in the evidence. And it is the same with the attempts to withdraw cash, or the actual withdrawal of the cash, the obtaining property by deception. If you find one of these offences proven, the prosecution invite you to reason that in light of the overall similarities, the same person committed the other offences.
She then described the defence’s alternative case. She stated:
The defence have submitted that you could never be satisfied that the offences are so similar that you could come to [the conclusion that the same offender was responsible for both armed robberies]. [Defence counsel] took you through some of the evidence of Mr Ng and Ms Echeverri-Alvarez. There was a range in the heights of the offenders; Mr Ng agreed in cross-examination that the height range — or in fact he said it was between five foot five and six foot. Ms Echeverri-Alvarez gave an estimate of 175 to 180 centimetres.
In relation to the clothing of the offender, Mr Ng said that he was wearing light-coloured runners, that they were not red or black. Mr Ng told the police the day after the incident that the offender was wearing grey pants, that he was wearing a camouflage or a dark greenish colour jacket with yellow; that the jacket had four pockets. Ms Echeverri-Alvarez described that the offender was dressed all in black. She said he was wearing black boots, black sweater, and black jeans.
Whilst both offences have occurred with the offender holding a weapon, Mr Ng described a rifle about a metre long. Ms Echeverri-Alvarez described a short black shotgun [sic[5]].
[5]The judge later referred to the weapon, more closely reflecting the evidence, as a ‘short black gun, approximately 15 to 20 centimetres long’.
As to the first step in the prosecution case, and the coincidence evidence generally, the judge said:
You must keep this evidence in perspective, this is in relation to the similarity in the evidence. It is only one part of the prosecution’s case ... You may only use the evidence of the similarities, if you find that there are similarities, for this purpose and not for any of other purpose.
Proposed ground of appeal
The single proposed ground of appeal is expressed as follows:
That the verdicts on charges 2, 3, 4, 5 and 6 are inconsistent with the jury’s acquittal on charge 1 given that:
(a) It was the Crown (and Defence) case that the person who committed charge 1 (armed robbery) was the same person who committed the other five charges;
(b)There was no evidence led, or inferred by the Crown, that anyone else was involved in any of the offending other than the person who committed both armed robberies. The jury, having acquitted the accused of charge 1, found he was the person who shortly after attempted to use the credit cards taken in charge 1 and committed the offences making up charges 2, 3 and 4;
(c) The evidence of the person alleged to be the Applicant approaching the teller machine with respect to charges 2, 3 and 4 was at a different time to the evidence of attempted withdrawals;
(d)The jury having acquitted the accused on charge 1 found that the person committing charges 2, 3 and 4 then continued to convict on charges 5 and 6.
Parties’ submissions
The case advanced by the applicant depended on s 276(1)(a) of the Criminal Procedure Act 2009, by contending that the guilty verdicts on charges 2–6 were unreasonable in light of the acquittal on charge 1.
The applicant submitted that, having acquitted him on charge 1, a jury acting logically and reasonably was bound to have concluded that the applicant was not the person who committed the remaining offences. There were several strands to this submission.
First, it was said to have been illogical, having acquitted the applicant of the first armed robbery, for the jury to convict him of the second. By doing so, the jury departed from the case that the two armed robberies were committed by the same offender, which had been advanced by the prosecution and adopted by the defence.
Secondly, it was submitted that it was illogical, having acquitted the applicant of the first armed robbery, for the jury to convict him of the associated property charges relating to the unsuccessful use of Mr Ng’s credit cards.
The third, and related strand, was that, in acquitting the applicant of the first armed robbery, but convicting him on the balance of the charges, the jury must have positively found that another party was involved. Such a finding was contrary to the way in which the prosecution case was advanced and was unsupported by any evidence.
A further argument advanced by the applicant, which did not directly go to the alleged inconsistency of verdicts, was that the verdicts on charges 2, 3, and 4 were unreasonable because the agreed timing of the CCTV footage showed the offender approaching and leaving the vicinity so as to place him near the ATM only at times other than the times of the attempted withdrawals.
The applicant accepted that it would have been open to the jury, had they acquitted him of the four charges relating to Mr Ng, to have convicted on the two charges relating to Ms Echeverri-Alvarez. However, this was not how the jury had decided the case. It was submitted that the convictions on charges 5 and 6 were inevitably infected by impermissible coincidence reasoning drawing on the convictions for charges 2–4.
The respondent contended that the jury’s verdicts were entirely logical, and faithful to the judge’s direction to consider each charge separately, and on the applicable evidence. The jury was not bound by the way the prosecution ran the case. The diversity of verdicts could be readily explained by the different character of the identification evidence given by Mr Ng, and the difference between Mr Ng’s description of the offender, on the one hand, and the description given by Ms Echeverri-Alvarez, the appearance of the person captured on the CCTV footage, and the appearance and attire of the applicant on arrest, on the other. On that basis, it was entirely open to the jury, even though it was convinced of the applicant’s guilt on the charges on which they convicted, to entertain a reasonable doubt as to his guilt on the first charge.
The respondent contended that the acquittal on the first charge simply indicated that the jury was unconvinced of the applicant’s guilt on that charge to the requisite standard; it did not indicate that they posited the existence of any other offender. In contrast to the first charge, the applicant’s convictions on the second, third and fourth charges did not depend on Mr Ng’s identification evidence. Those convictions were supported by CCTV evidence which showed a person in the vicinity of the ‘Redi’ ATM at the relevant time matching the description given by Ms Echeverri-Alvarez, the appearance of the person captured on the other CCTV footage, and the appearance and the attire of the applicant on arrest. Further, the discrepancies between the timing of the sightings of the offender in the CCTV footage and the attempted ‘Redi’ ATM withdrawals did not preclude conviction on these charges: the CCTV footage timing was not held out as precise, and, in any case, footage showing the offender exiting the vicinity did not exclude the possibility of him re-approaching the ‘Redi’ ATM by a route not captured by the cameras.
General principles
The principles that apply in a case of allegedly inconsistent verdicts were outlined in MacKenzie v The Queen.[6] Gaudron, Gummow and Kirby JJ said:
Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.[7]
[6](1996) 190 CLR 348 (‘MacKenzie’).
[7]Ibid 366 (Dawson and Toohey JJ agreeing at 351) (citations omitted).
The test is not easily satisfied. The joint judgment in MacKenzie continues:
Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[8]
[8]Ibid 367 (citations omitted).
The joint judgment gave examples of possible explanations for different verdicts:
In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. ... In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. ...
We agree with these practical and sensible remarks.[9]
[9]Ibid 367–8 (citations omitted) (part of cited passage omitted).
The judgment concluded:
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’[10]
[10]Ibid 368 (citations omitted).
Consideration
The question to be decided is therefore whether a reasonable jury applying their minds properly to the evidence could have convicted the applicant on charges 2–6 while acquitting him of charge 1.
The argument advanced by the applicant took as its starting point the acquittal on charge 1. It was said that, in circumstances where there was no basis for the jury to find that the offender acted with another person, the conclusion was irresistible that, if it could not be shown that the applicant committed the armed robbery, then equally it could not be shown that he attempted to use the credit cards stolen in that robbery. That was especially so, it was contended, because the CCTV footage of the person said to be the offender in the vicinity of the ‘Redi’ ATM showed him departing the vicinity of the ATM before the successive attempts were made to use the cards.
It may be accepted that, if the jury were faced only with the evidence on charges 1–4, and they had decided that a reasonable doubt existed as to the identity of the armed robber, they could not rationally have convicted the applicant of the property offences in charges 2–4. There would be nothing to link the applicant with that offending apart from the resemblance of his clothing to that of a person seen in the vicinity of the ATM around the time of the attempted withdrawals.
But that was not the state of the evidence. Moreover, there is no reason to assume that the jury commenced their analysis by deciding that charge 1 was not made out. There was, of course, no obligation on the jury to approach the charges in any particular order. In that context, the applicant must, in order to establish that the verdicts were inconsistent, do more than point to one possible chain of reasoning that would have been illogical and unreasonable. He must demonstrate that there was no logical and reasonable path by which the verdicts could have been reached.
An obvious alternative path of reasoning which the jury might have taken was to commence by noting the strength of the evidence connecting the applicant to the offending in charges 5 and 6. The description given by Ms Echeverri-Alvarez of her assailant’s clothing closely matched that which the applicant was wearing or had in his possession at the time of his arrest, and the applicant was of the height and build she described. Significantly, he was found in possession of cash matching the amount taken from her wallet and the Commonwealth Bank ATM, including a ten dollar note. When coupled with the evidence of a person similarly attired in the vicinity of that ATM at the relevant time and holding a jacket above his head in an apparent attempt to avoid observation, the case against the applicant on charges 5 and 6 was a strong one. Counsel for the applicant at the hearing in this Court did not suggest otherwise.
If the jury found the case on charges 5 and 6 proven, they could then have reasoned that the similarity in the offending in respect of the property offences was such that it could safely be inferred that the offender in each case was the same person. Each offence took place on the same night and the same general area, shortly after an armed robbery at about the same nearby location. There was CCTV footage of the area near the relevant ATMs at around the relevant times, in each case showing a person dressed in the same way, including wearing dark pants with a white logo on the upper left leg and holding a jacket above their head in the same distinctive manner. The conclusion was well open in these circumstances that the property offences were committed by the same person, and that the applicant was therefore guilty not only of charges 5 and 6 but also charges 2–4.
There was nothing impermissible about such reasoning. As noted, the judge directed the jury that the similarities in the offending could be used by them in respect of the property offences.[11]
[11]See [39] above.
Further, there was no obligation on the jury to approach the case on the basis that the same person committed all six offences. While both sides at trial urged that proposition on the jury, for different purposes, the jury was free to form its own view — indeed, it would have been wrong for the jury to proceed on the basis that the case had to be decided on an ‘all-or-nothing’ basis. The separate charge direction given to them made that abundantly clear.[12] In any event, as described above, the defence had, by its alternative submission, invited the jury to find that the robberies were not committed by the same person.[13]
[12]See [37] and [38] above.
[13]See [36] above.
Counsel for the applicant advanced two further reasons why, none the less, the verdicts were unreasonable. The first was that it was said that the CCTV footage in the vicinity of the ‘Redi’ ATM showed the offender leaving the area before each of the attempted withdrawals took place. Even assuming that to be so, it was not in doubt that the ATM could have been approached without passing by the cameras in question. The footage therefore does not disprove the prosecution case. It supports the proposition that the offender, being the person seen in the CCTV footage, was in the vicinity of the ‘Redi’ ATM around the relevant times.[14] That was sufficient for it to be relied on against the applicant.
[14]The fact that some other footage could not be played back casts no doubt on the same proposition.
Secondly, counsel submitted that the jury could not have convicted on charges 2–4 in the absence of any evidence that the offender in charge 1 acted in concert with another person. This submission is misconceived. It is correct of course that the jury could not have relied on speculation in the course of reasoning to a verdict. But the foregoing analysis has shown that the path to a verdict lay through the evidence alone, without connecting the applicant to the first armed robbery in any way. Having reached a verdict in the manner described, it becomes a matter of speculation who the first armed robber might have been and how the applicant obtained Mr Ng’s credit cards. But that does not matter once it is seen that it was open to the jury to find, beyond reasonable doubt, that he used those cards to commit the offences comprising charges 2–4.
For these reasons, the verdicts were well open to the jury and leave to appeal should be refused.
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