Hunter v The State of Western Australia
[2009] WASCA 197
•6 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUNTER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 197
CORAM: OWEN JA
WHEELER JA
BUSS JA
HEARD: 16 SEPTEMBER 2009
DELIVERED : 6 NOVEMBER 2009
FILE NO/S: CACR 3 of 2009
BETWEEN: RICHARD WILFRED HUNTER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEANE DCJ
File No :IND 1179 of 2007
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms M M in de Braekt
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Megan in de Braekt
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Piccolo v The State of Western Australia [2007] WASCA 149
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
OWEN JA: I agree with Wheeler JA.
WHEELER JA:
The appeal
This is an application for leave to appeal against conviction. On 23 April 2009, Miller JA ordered that the application for leave to appeal be heard with the appeal. On 22 December 2008, the appellant was convicted of one count of aggravated burglary and two counts of wilful criminal damage by fire. The appellant's co‑accused pleaded guilty - Borinelli to four charges; Richards to those offences contained in counts 1 and 3 of the appellant's indictment. On 9 February 2009, the appellant was sentenced to a total of 48 months' imprisonment, with parole eligibility.
The sole ground of appeal in relation to each count is that the verdict of the jury was unreasonable and/or was not supported by the evidence.
Facts
The evidence, if accepted by the jury, established the following matters.
Some time in the early hours of 25 February 2007, a Blockbuster video store in Yokine was robbed. (The appellant was acquitted of this robbery, while his co‑accused were convicted on their own pleas of guilty.) Items stolen during this robbery were later located at the appellant's home.
Later that morning, around 7 am, a Mr Marinozzi was woken by the appellant, who requested that Marinozzi drive the appellant and his co‑offenders "somewhere". The appellant told Marinozzi that there would be "something in it" for Marinozzi. Marinozzi agreed, and drove the three men to Swan Street, near Blockbuster in Yokine.
The three men then left Marinozzi in the car and disappeared from Marinozzi's vision. When the three men returned to the vehicle a short time later, Borinelli was carrying a silver case. This case contained an Xbox game console, the subject of count 2. It was the property of Blockbuster.
Marinozzi then drove the offenders back to the appellant's home, and at the request of the appellant, stood by the front gate to keep watch. Marinozzi observed the men going to the back of the house. He then
heard cutting and grinding noises, and, going to investigate, observed the three offenders attempting to open a small safe. The three offenders eventually succeeded in opening the safe, and Marinozzi observed the men removing money from it. He later went inside the house and observed confectionery and baskets filled with DVDs and games, some of which had "Blockbuster Video Yokine" labels attached.
On the morning of 25 February 2007, a Ms Broderick was at work preparing to open the Eziway Supermarket in the same shopping complex as Blockbuster Yokine. At some point between 7.30 am and 7.35 am, Ms Broderick went out the back of the supermarket. She smelled smoke, and saw smoke coming through the windows of the Blockbuster video store. She then returned to the Eziway Supermarket and called the fire brigade. Ms Broderick then went back outside and looked in the front of the blockbuster video store. She noticed that the store appeared to have been "ransacked … everything ... on the floor … a complete mess" (ts 166).
The Blockbuster store had a safe under the front counter. This safe had been bolted to the floor. Money was deposited into the safe through a slot in the counter, which led, via a metal chute, into the safe.
A Ms Mackie was friends with the appellant and his de facto in February 2007. On the night of 24 February, she stayed at the appellant's house. Borinelli was also there that night. When she awoke the next morning (she was not sure when), confectionery and DVDs had appeared in the lounge room, where she was sleeping. Early on the morning of 25 February, she heard the appellant discussing with a co‑offender "how to open a safe or something to that effect" (ts 401).
On 26 February, police executed a search warrant on the appellant's home, locating three Dynabolts, which the State argued came from the safe which had been removed from the shop, some grinder disks, some metal tubing consistent in shape and size with the piece of tubing or chute which had been attached to the safe in the store, a large quantity of DVDs, some of which had Blockbuster labels on them, confectionery which also had Blockbuster labels on it, and the Xbox game console in a silver case. The appellant was located hiding under the house next door at the time of this search. The Dynabolts recovered from the appellant's home and a sample of concrete and carpet fibres from under the counter at the Blockbuster video store were analysed. One of the three bolts was found to have adhered to it carpet fibres found to be consistent in composition, diameter and colour to the constituent fibres of the carpet sample. The cause and origin of the fire was undetermined.
Principles
The test to be applied where it is alleged that a verdict is unreasonable or not supported by the evidence was outlined in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 (at 493):
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (footnotes omitted)
In relation to a circumstantial case, in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 the High Court said that "[o]ften 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" (at [48]).
Similarly, this court said in Piccolo v The State of Western Australia [2007] WASCA 149 "that features of the circumstantial case brought against an accused person should not be looked at in isolation from the evidence as a whole. In particular, it is wrong to examine each piece of circumstantial evidence to see whether there exists an hypothesis open which is consistent with the innocence of the accused person" (at [106]).
The question for this appeal, then, is: looking at the evidence as a whole - not at each piece of evidence in isolation as the appellant appears to have done in written submissions - was it open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty?
Count 2 - verdict unsafe?
It was submitted by counsel for the appellant that ground 1, dealing with count 2, was the strongest of the three grounds. The submissions focus particularly on the alleged unreliability of Mackie and Marinozzi. The appellant asserts that the evidence of these witnesses is unreliable, for a variety of reasons. Marinozzi has a criminal record and had been convicted in relation to count 2. Marinozzi had had a "falling out" with the appellant after the date of these offences. The appellant also points to several "inconsistencies" in Marinozzi's evidence.
The evidence of Mackie is attacked on the basis that she also has a criminal record. Further, Mackie said in evidence that she failed English literature in high school (Mackie is now aged 40, making her time in high school about 23 years ago) when she in fact passed with a score of 52%. The appellant also points to a number of "inconsistencies" in Mackie's evidence.
In addition to attacking the evidence of Mackie and Marinozzi as unreliable, the appellant's counsel points to the following: nobody saw the appellant in the store, or in the vicinity of the store; the appellant exited and returned to Marinozzi's car empty‑handed; and there is no forensic evidence to suggest that the appellant entered the store. Further, Marinozzi agreed in cross‑examination that it was his belief that he was driving the appellant and his co‑offenders to the area near the store to retrieve an Xbox console from near some pine trees (the source of this belief is not clear). In cross‑examination, Marinozzi agreed that there was a possibility that it might have been as late as 7.45 am that the men arrived at Swan Street. That concession is said to be significant in the light of Ms Broderick's evidence that she smelled smoke between 7.30 am and 7.35 am.
Count 3 and Count 4 - unsafe?
In addition to those points raised in relation to count 2, the appellant asserts that it was not open to the jury to find the appellant guilty on the arson counts because, while Ms Broderick was unequivocal in her evidence that she first smelled or saw smoke between 7.30 am and 7.35 am, Marinozzi gave evidence that he was unsure of the time he dropped the appellant and his co‑offenders at Swan Street, and that this may have been as late as 7.45 am - by which time the fire had been observed, and the fire brigade and police had arrived at the scene. Further, while the cause of the fire was undetermined, neither the appellant nor his co‑offenders exited Marinozzi's vehicle carrying any item, so it is submitted that they cannot have been carrying any accelerant or ignition device. Finally, no evidence was given suggesting that the appellant knew that the fire in the Blockbuster store was likely to spread to the neighbouring newsagency.
Conclusion
The foregoing summary of the appellant's submissions is brief, and summarises only the major aspects of them. It does not refer to the many instances in which the close analysis of the evidence conducted by the appellant's counsel suggested that a witness' evidence was not "unequivocal" in relation to a particular issue. However, it appears to me that the summary above sufficiently demonstrates the difficulties with the appellant's case.
The first difficulty is that the appeal is based upon an assertion that the evidence of Mackie and/or Marinozzi was so unreliable that the jury's only choice was to reject it. However, questions of credibility lie at the core of the jury's function, and, in my opinion, the matters pointed to by the appellant are nowhere near sufficient to establish that the jury must (rather than could) have rejected the critical parts of their evidence. The second difficulty is that it is not sufficient, in a circumstantial case, to demonstrate that some piece of evidence is, taken in isolation, insufficient to support an inference of guilt. The question is whether it was open to infer guilt from the whole of the evidence. In that respect, the facts to which I have referred above, which it was open to the jury to regard as established by the evidence, provided a basis for an inference of the appellant's guilt in respect of each count.
I would refused leave to appeal in respect of each ground, and dismiss the appeal.
BUSS JA: On 22 December 2008, the appellant was convicted after a trial in the District Court before Deane DCJ and a jury of one count of aggravated burglary (count 2 in the indictment) and two counts of wilful criminal damage by fire (counts 3 and 4 in the indictment). He was acquitted of one count of aggravated burglary (count 1 in the indictment). The indictment alleged in relation to the aggravated burglary counts that the appellant had committed the offences while in company.
The appellant has applied to this court for leave to appeal against his conviction on each of counts 2, 3 and 4 on the ground that, in each case, the conviction was 'unreasonable and/or was not supported by the evidence'.
By s 30(3)(a) of the Criminal Appeals Act2004 (WA), in the case of an appeal against conviction, the Court of Appeal 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.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen (1997) 191 CLR 439, 450.
In M, McHugh J held that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction (523). In Jones, Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just (450).
In M, Mason CJ, Deane, Dawson and Toohey JJ held that the test for an unsafe or unsatisfactory verdict 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 (493).
In answering that question, their Honours said:
[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).
Their Honours explained the application of the test:
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). (footnotes omitted)
See also Jones, 450 ‑ 451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones, 452; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ & Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is
whether it was open to the jury 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 (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
The circumstantial evidence relied on by the State, in the present case, to prove the appellant's guilt in relation to counts 2, 3 and 4 must, of course, be evaluated in its entirety, and not considered on a piecemeal basis. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] ‑ [48] (Gummow, Hayne & Crennan JJ).
I agree with Wheeler JA, for the reasons she gives, that the ground of appeal in relation to each of counts 2, 3 and 4 is without merit.
None of the matters raised on the appellant's behalf precluded the jury's finding that he was guilty beyond reasonable doubt on each of counts 2, 3 and 4 (including the necessary finding beyond reasonable doubt that the only reasonable and rational inference that could be drawn from the circumstances disclosed by the evidence was that the appellant was a principal offender in the aggravated burglary and the wilful criminal damage by fire in respect of which verdicts of conviction were recorded). My examination of the trial record does not require the conclusion that the jury must have entertained a doubt about the appellant's guilt (including a doubt as to whether the only reasonable and rational inference that could be drawn was that he was a principal offender in relation to each of the offences alleged in counts 2, 3 and 4). The verdicts of the jury were not unreasonable, and they are verdicts which are supported by the evidence.
I agree with Wheeler JA that leave to appeal should be refused, and the appeal should be dismissed.
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