Higton v The State of Western Australia
[2016] WASCA 43
•10 MARCH 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HIGTON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 43
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 10 FEBRUARY 2016
DELIVERED : 10 MARCH 2016
FILE NO/S: CACR 77 of 2015
BETWEEN: MATHEW JAMES WARD HIGTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
File No :INS 93 of 2014
Catchwords:
Criminal law - Application for leave to appeal against conviction - Aggravated robbery of service station - Unreasonable verdict - Circumstantial evidence - Turns on own facts
Legislation:
Criminal Code (WA), s 392
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P S Ash
Respondent: Ms A C Longden
Solicitors:
Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia (2008) 232 CLR 438
Libke v The Queen (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Plomp v The Queen (1963) 110 CLR 234
R v Hillier (2007) 228 CLR 618
Shepherd v The Queen (1990) 170 CLR 573
McLURE P: This is an application for leave to appeal and, if leave is granted, an appeal against conviction. The appellant and his co‑offender, Ryan Christopher Jeffries, were convicted after trial of one count of armed robbery contrary to s 392 of the Criminal Code (WA) (Code).
The sole ground of appeal pursued by the appellant is that, having regard to the evidence, the verdict of guilty is unreasonable or cannot be supported.
The unchallenged evidence established that at 8.56 pm on 13 May 2015 a male wearing a blue jacket type sweater with a hood, known colloquially as a 'hoodie', and armed with a silver car tyre lever, stole from Jessica Eckett, with threats of violence, cash and cigarettes the property of the owners of the Caltex Service Station on the corner of Warnbro Sound Avenue and Bristol Street, Warnbro (the service station). The only issue at trial was whether one of the co‑offenders actually did the robbery (the principal) and the other aided the principal in the commission of the robbery. The prosecution did not specify which co‑accused was the principal.
A significant part of the prosecution case involved a number of screen shots (stills) taken from CCTV footage of the robbery at the service station. The case against the appellant and his co‑offender was circumstantial. The objective evidence established the following:
(1)the co‑offenders were at the service station in a blue Toyota Yaris (the Yaris) by 8.51 pm on the night of the robbery;
(2)the appellant, who was in the passenger seat, got out of the Yaris and the co‑offender followed some time later. They stood adjacent to a petrol pump. Petrol to the value of $5 was put in the Yaris. The appellant was wearing a faded blue hoodie with a reddish‑orange motif on the front. The hoodie was open at the neck to reveal a light coloured t‑shirt. The co‑offender was wearing a grey hoodie;
(3)the service station shop was in the process of renovation. A 'donga' served as a temporary shop on the night of the robbery. The door to the donga was in the open position. There was no relevant security before 10.00 pm;
(4)at 8.51:47 pm the appellant entered the donga, handed $5 to Ms Eckett for the petrol and then immediately left the donga;
(5)the appellant returned to the Yaris and at 8.52:47 pm the co‑offender drove from the service station via the Bristol Street exit;
(6)93 seconds after the Yaris left the service station, the robber is seen walking from the direction of Bristol Street diagonally across the service station forecourt. The robber walks to the side of the permanent shop and waits until a female customer leaves the donga. The robber is wearing a blue hoodie with the hood on his head. The State case was that the hoodie worn by the robber was the same hoodie worn by the appellant less than two minutes earlier;
(7)after the customer left the donga and was walking towards her car, the robber runs to, and enters the donga. His face is obscured by an item of clothing and he is holding the silver car tyre lever. He commits the robbery, leaves the donga and runs off in the direction of Bristol Street;
(8)the silver car tyre lever used by the robber is the same type of tyre lever supplied with and for the make and model of the Yaris;
(9)when police searched the Yaris on 30 July 2013, its tyre lever was missing. Police were unsuccessful in locating the blue hoodie worn by the appellant on the night of the robbery.
On 30 July 2013, the appellant was interviewed by police. The video record of the interview was tendered in the State's case. The appellant denied committing the offence. He is shown a still marked 'A' (exhibit 14.1). The still shows the upper bodies of the co‑offender and the appellant on the side of, but behind, the Yaris at the petrol pump. The interview proceeds as follows:
Appellant:That's me and the Yaris.
Constable:That's you. And the Yaris. And what, what sort of top are you wearing?
Appellant:A hoodie.
Constable:A hoodie. Do you recognise that hoodie?
Appellant:Nuh. Not really.
Constable:Where'd you get that hoodie from?
Appellant:I wouldn't have a clue.
Constable:So you're wearing a hoodie that you don't know where it came from and it's not yours.
Appellant:I could have picked it up off the back seat [indistinct] (ts 13).
Later in the interview the following exchange occurs:
Constable:So the car drives away at 8.52 pm and 35 seconds. At 8.54 pm and 17 seconds … the person who commits the armed robbery offence walks … the first time … you see him is him walking across the forecourt from Bristol Street towards Warnbro Sound Avenue … Now, he walks past the shop---
Appellant:mmhmm
Constable:To the Warnbro Sound Avenue and then he walks back into the shop at 8.55 pm and 32 seconds. So he walks into the shop, hood up, T-shirt over the face, tyre lever.
Appellant:And it's that jacket?
Constable:Yes.
Appellant:No. I didn't do that (ts 16).
At that stage of the interview, the appellant had not been shown any stills of the robber. However, at around 7.30 am on the day of the interview, police had executed a search warrant of the appellant's premises. The hoodie was listed in the search warrant.
Subsequently, the appellant said he picked the hoodie off the back seat of the Yaris, that it was not his and that he took the hoodie off when he was going home and did not know to whom he gave it (ts 19, 22, 29).
Ms Eckett gave evidence that the robber wore a faded blue hoodie with an orange logo on the front chest part and a greyish t‑shirt underneath the hoodie. She had a good look at the orange logo, some of which was cracked and peeled. The robber also wore blue jeans with a bit of faded marking on them and runners/trainers. She described the robber as around her height of 5 foot 9 inches, in his mid‑20s, with dark brown hair, an olive skin tone and an Australian accent. She was unsure as to the colour of his eyes.
Ms Eckett was not asked in evidence‑in‑chief or cross‑examination about what the appellant was wearing when he came into the donga to pay for the petrol. However, he was in the donga for less than 10 seconds. His was a conspicuously fleeting presence.
The appellant did not give or call evidence at his trial. It was part of the defence case that the investigating officer, Detective Sergeant Kavanagh, had a tunnel vision view and failed to properly and fully investigate all relevant matters. The details on which the defence relied to dispute the State case that the hoodie worn by the appellant was the hoodie worn by the robber were put in cross‑examination to Detective Kavanagh. In the course of his responses he explained why he was and remained of the view that the hoodies worn by the appellant and the robber were one and the same garment.
The State accepted that the appellant was wearing different trousers and shoes than the robber. The jury returned a unanimous verdict of guilty.
Legal principles
This court must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
In M v The Queen (1994) 181 CLR 487, the plurality held that the test was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question, the court must not disregard nor discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or that the jury had the benefit of having seen and heard the witnesses (493). The plurality explained the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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 the 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 (494 ‑ 495).
The question before the court is whether it was open to the jury, as a matter of fact, to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113].
Circumstantial evidence is not necessarily inherently less compelling than direct evidence. As Gleeson CJ and Kiefel J noted in AK v The State of Western Australia (2008) 232 CLR 438 [27], 'Undisputed objective circumstances may be more reliable than direct testimony'.
Where the prosecution relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen (1963) 110 CLR 234, 243; Shepherd v The Queen (1990) 170 CLR 573, 578.
Circumstantial evidence must be evaluated in its entirety, not considered on a piecemeal basis in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd (579 ‑ 580). In R v Hillier (2007) 228 CLR 618, Gummow, Hayne and Crennan JJ stated:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].
The State case at trial was that the jury had to be satisfied beyond reasonable doubt that the hoodie worn by the robber was the same hoodie worn by the appellant at the service station. In reaching its conclusion on that subject, the jury was required to consider all the evidence in its entirety, not in a piecemeal way. Exactly the same exercise had to be undertaken by the jury in determining whether the appellant was guilty of the offence. In this case the two issues are inextricably linked and informed by the same evidence.
Analysis
I have reviewed the CCTV footage and all the other evidence adduced at trial. I have no reason to doubt the correctness of the jury's verdict that the appellant and his co‑offender committed the offence of which they were convicted.
The striking similarity of the hoodies worn by the appellant and the robber evident in the stills is further reinforced and strengthened by Ms Eckett's evidence and the appellant's responses relating to the hoodie in his record of interview. The inference of guilt is compelling when the picture is broadened to include the conduct of the appellant and his co‑offender immediately before the robbery, which has all the features of a reconnaissance exercise, the robber's arrival at the service station forecourt from the direction in which the Yaris had travelled less than two minutes earlier, the use in the robbery of a silver car tyre lever of the type supplied with the make and model of the Yaris, and the fact that after the robbery the Yaris was without its silver car tyre lever.
I would refuse leave to appeal. Accordingly the appeal is taken to be dismissed.
BUSS JA: I agree with McLure P.
I merely note that, on the basis of my examination of the trial record (including the CCTV footage) and my weighing of the evidence, it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt. A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty is not unreasonable. It was supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the advantages enjoyed by the jury, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction on those counts.
MAZZA JA: I agree with McLure P.
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