James v The State of Western Australia
[2007] WASCA 18
•1 SEPTEMBER 2006
JAMES -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 18
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 18 | |
| THE COURT OF APPEAL (WA) | 24/01/2007 | ||
| Case No: | CACR:205/2005 | 1 SEPTEMBER 2006 | |
| Coram: | ROBERTS-SMITH JA McLURE JA BUSS JA | 1/09/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHAD JOHN MICHAEL JAMES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Application for extension of time within which to appeal Leave to appeal Whether reasonable prospect of succeeding on appeal Evidence of alibi by coaccused Alibi included claim appellant was with coaccused Coaccused acquitted Whether verdicts inconsistent |
Legislation: | Criminal Procedure Act 2004 (WA), s 96(3) |
Case References: | MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JAMES -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 18 CORAM : ROBERTS-SMITH JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 208 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Appeal - Application for extension of time within which to appeal - Leave to appeal - Whether reasonable prospect of succeeding on appeal - Evidence of alibi by coaccused - Alibi included claim appellant was with coaccused - Coaccused acquitted - Whether verdicts inconsistent
Legislation:
Criminal Procedure Act 2004 (WA), s 96(3)
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr D Dempster
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
(Page 3)
1 ROBERTS-SMITH JA: This is an application for an extension of time within which to appeal and for leave to appeal against conviction.
2 The appellant was convicted on 16 September 2005 following trial before a Supreme Court Judge and jury on one count of armed robbery contrary to s 392 of the Criminal Code (WA).
3 The appellant's appeal notice was filed on 27 October 2005. That was accompanied by the affidavit of the appellant's solicitor, Mr B S Hanbury, sworn on that date, in support of the application for extension of time. That was necessary because the time for filing the appeal notice had expired on 7 October 2005 (s 28(3) Criminal Appeals Act 2004 (WA)).
4 The appellant's case was filed on 10 February 2006, together with a further application filed by Mr Hanbury seeking an order that the time for the filing of the appellant's case be extended to that date. That had been due on or before 1 December 2005.
5 On 29 March 2006 Steytler P ordered that the application for extension of time and for leave to appeal be heard together with the appeal.
6 At the hearing, the Court indicated that the application for extension of time would fall to be determined on the question whether or not there was merit in the grounds of appeal. In the event, at the conclusion of the hearing the Court was unanimously of the view that there was no merit in the grounds of appeal and ordered the application for extension of time to appeal be dismissed. We said we would publish our reasons later. These are my reasons.
7 About 6.55 pm on Monday 5 July 2004, the Handymart Delicatessen on Walter Road at Bassendean was robbed by two men. They stole $4000 in cash and $2000 in phonecards from Mr Hoang Phuong Nguyen, with threats of violence. The delicatessen was operated by Mr Nguyen's parents. He and his mother were on duty in the delicatessen at the time.
8 It was the prosecution's case that the two offenders were the appellant and one David Anthony Rice.
9 Earlier that evening, two other people, Ms Kelly McIntosh and her boyfriend Daniel Glencross were driving into Perth from Merriwa in a Daihatsu Charade car, which belonged to McIntosh's mother. Kelly McIntosh was driving. In Wellington Street she saw the appellant
(Page 4)
- in a Toyota Corolla being driven by Rice. She and Glencross arranged to meet the appellant and Rice at a shopping centre in Beechboro. They later met up with them there and then drove to the Walter Road Handymart. It was at that stage a brief visit. In the Charade driven by McIntosh, there was also her daughter and Glencross. In the Corolla were the appellant and Rice.
10 On arrival at the Handymart the appellant and McIntosh went into the shop for a couple of minutes and then came out again. Both cars then drove away from the Handymart to Eden Hill. There, the appellant went to the Corolla and bent the number plates over. Rice then drove the Corolla with the appellant and with McIntosh back to the Handymart, leaving Glencross with the Charade at Eden Hill. They drove to a position in a laneway behind the Handymart. There, McIntosh got into the driver's seat. The appellant and Rice prepared themselves for entry into the premises. The appellant put on gloves, a balaclava and took out a pistol, a black handgun. He and Rice then went into the shop.
11 They were in the shop for about three minutes. When they came out Rice was carrying a white box.
12 When they went inside the 18-year-old complainant and his mother were working inside. The male complainant was behind the counter by the cash register. The appellant pointed the firearm at him and demanded that he open the store's cash register, whilst his co-offender, Rice, stood over Mrs Nguyen.
13 Hoang Nguyen opened the cash register and handed the appellant approximately $500 in cash. The appellant saw there was another cash register and demanded the first complainant open it and hand him the money. Hoang Nguyen did that, handing over approximately $200 in cash. In the meantime, Rice had accosted Mrs Nguyen and was demanding that she empty the contents of an office cabinet, which was located in an office behind the actual shop area. The appellant demanded that Hoang Nguyen go into the office and join his mother. The appellant followed him and forced him at gunpoint to lie on his stomach. He told Mrs Nguyen that he would shoot her son if she did not comply with his demands. Fearing for her son's life, Mrs Nguyen opened the safe in the office area. When she did so, the appellant and Rice stole further cash from the safe before rummaging through the office desk. They then both left the shop and returned to the Corolla. The three of them then drove back to Eden Hill where Glencross was waiting with the Charade. On the
(Page 5)
- prosecution case, McIntosh drove as directed by the appellant. For a short time she drove with the car lights off.
14 Once back at Eden Hill, the three of them left the Corolla and got into the Charade. The appellant put McIntosh in the back behind the driver's seat. Glencross drove. Rice was in the back seat with the white box and the appellant was in the front passenger seat. The Corolla was abandoned at Eden Hill.
15 They drove to a carpark near the river in Bassendean where they took a number of items from the car. They included a box and two black bags. Glencross stayed in the car. Clothing and some other items were thrown into the river. The clothing was later found to be a Holden shirt and a Jack Daniels shirt. After that, Glencross drove them away from that location. The appellant said he was taking McIntosh home, but they went to a Gull Service Station in Mt Lawley, on the way dropping off a cardboard box into a collection bin. On arriving at the Gull Service Station they all went inside. Some of them got something to eat, the appellant and Rice went to the toilet. They then drove to Wanneroo and dropped Rice off at Trifund Gardens and then the appellant, Glencross and McIntosh went to McIntosh's mother's home in Merriwa.
16 Glencross remained at the Merriwa house and McIntosh drove the appellant to a club called The Bog. On the way, they stopped at Trifund Gardens and picked up Rice. The three of them stayed at The Bog until closing time. Ultimately, McIntosh dropped the appellant at the casino at around 5.00 am.
17 The appellant was located by detectives and arrested on Tuesday, 6 July 2004. When arrested, he was found to be in possession of $1670 in cash, two $10 Telstra phonecards, a Nokia 6230 mobile phone and a Sony Ericsson mobile phone, for neither of which was he recorded as the subscriber.
18 Rice was located by Detectives and arrested on 15 July 2004.
19 McIntosh was also charged with this offence and pleaded guilty. She was subsequently dealt with. Glencross was not charged, but he and McIntosh were both State witnesses at the appellant's trial.
20 Part of the State case against the appellant was that the two mobile phones found in his possession had been recharged with recharge cards stolen from the Handymart during the robbery.
(Page 6)
21 As I have observed, the robbery occurred at about 6.55 pm on Monday 5 July 2004. The Nokia mobile phone was recharged ten times on that date to a total value of $210. The first $30 recharge card was used at 7.22 pm. After that, there were nine $20 recharge cards used between 7.44 pm and 9.11 pm.
22 The Ericsson mobile telephone was recharged three times on 5 July to a total value of $60. Three $20 phonecards were used, at 9.06 pm, 8.12 pm and 7.24 pm.
23 When apprehended by police, Rice was also found to be in possession of a mobile telephone recorded in the name of another subscriber. Vodafone records showed that phone was charged once on 5 July to a value of $30.
24 Other relevant evidence included a taxi cabcharge voucher found in the abandoned Toyota Corolla, indicating an attempt to pay a $33.30 taxi fare through the appellant's Commonwealth Bank account.
25 Kelly McIntosh testified for the State. She said she knew the appellant well and he was practically like a brother to her. She said she met him at a shop in Beechboro on 5 July 2004. He had a friend with him. The two of them were in a blue Toyota. She did not know the friend and he was introduced to her as "Midnight". They went to a mini-mart in Bassendean, where the appellant bought a drink. They were served by Asian people. They returned to the mini-mart later that day in a blue car. The two boys went into the shop and she stayed in the car. When the appellant and "Midnight" returned, they drove back to the Charade, where Glencross was waiting. They drove along a river, where the appellant and "Midnight" got out of the car. They then drove back towards her house in Merriwa, stopping at a petrol station along the way. They dropped "Midnight" off in Wanneroo and she, the appellant and Glencross went home. Later on, they met up with Rice again at The Bog nightclub.
26 McIntosh told the Court that she was charged with the same offence to which she had pleaded guilty on 1 October 2004 and received a term of imprisonment. She had been given a reduction in sentence due to her cooperation with the prosecuting authorities, including an undertaking to give evidence against the appellant and Rice.
27 McIntosh testified that she was familiar with the appellant; she saw him regularly and knew his clothing. She was also able to identify his voice in a telephone call, a tape of which was played during the trial.
(Page 7)
28 As to Rice, McIntosh testified that she did not know him at the time, met him only once and that was in relation to the offence. She said in evidence that she met him as "Midnight" but did not recall him as a person. She was asked by counsel whether she was able to identify Rice in the dock. She was unable to do so and said that she could not say whether she had ever seen that person in the dock before.
29 In cross-examination Rice admitted that his nickname was "Midnight".
30 McIntosh also said in evidence that she was a heavy drug user at the time and sometimes saw things that were not there - including blue monkeys.
31 In his evidence, Glencross, McIntosh's former partner, said that he had met the appellant in June 2004. He said that he and McIntosh went to meet the appellant and his friend on 5 July 2004. He had not met the appellant's friend before. The name he used was "Midnight". The appellant and "Midnight" were in a blue car, which Glencross had seen before at the appellant's house in Perth. They went for a drive, with the appellant and "Midnight" in the blue car and he and McIntosh in the other. In Bassendean the appellant and "Midnight" got out of the car and took off the number plates. McIntosh then went over to their car and Glencross stayed in the car by himself and waited for the other three. They returned after approximately 25 minutes. The appellant, "Midnight" and McIntosh jumped into his car and told Glencross to drive. He drove to a river, where the three of them got out of the car and walked down to the river. The appellant pulled a gun out and put it under his driver's seat. They subsequently drove to a service station and then to Perth. He then drove "Midnight" to a house in Wanneroo and Glencross, the appellant and McIntosh drove to McIntosh's mother's place in Merriwa. Glencross remained there and the appellant and McIntosh went out again. He also testified that the appellant and "Midnight" were putting money on their mobile phones after having been at the service station.
32 Glencross had subsequently identified "Midnight" on a photo board. The person he identified was Rice. Unlike McIntosh, Glencross was able to identify Rice in the dock. However, in cross-examination he admitted that he was only able to do so because Rice was the only other person sitting next to the appellant.
33 At the trial, the appellant did not give evidence. His co-accused, Rice, did. He had also given notice of alibi (albeit late).
(Page 8)
34 The jury may have thought it was a matter of some significance that in his notice of alibi Rice had not mentioned the appellant.
35 In his evidence at trial however, Rice testified that he was with the appellant at all relevant times. His evidence was that he met the appellant at Perth Railway Station on the afternoon of 5 July 2004 and then both went to the house of Nicole Hinkley, his fiancée, by train, arriving at approximately 5.30 pm. He and the appellant remained at Hinkley's place until 7 or 7.30 pm, when they left and went to the Gull Service Station on Guildford Road where Rice purchased a Vodafone recharge card. He said that at approximately 9.30 pm Kelly McIntosh called his mobile phone and spoke to the appellant. They had an argument. He then went with the appellant to an address in Wanneroo in a blue Toyota Corolla, which belonged to the appellant's girlfriend, Paula Symons. That was about 10 pm. Rice said he there loaned the appellant clothes to go to a Perth nightclub. At approximately 1 am he and the appellant went to The Bog nightclub where they met Hinkley.
36 Hinkley gave evidence that Rice and the appellant arrived at her place at approximately 5 or 5.30 pm. They left at about 7.30 pm and later met up at The Bog nightclub. She said she saw the appellant at the nightclub.
37 The trial Judge directed the jury to disregard the dock identification.
38 Before adverting to the other evidence in the case, it is convenient at this point to set out the grounds of appeal. They are:
"1. THE VERDICT OF THE JURY IS UNREASONABLE
PARTICULARS
1. The jury acquitted the co-accused on the same evidence as was admitted against the appellant and there is no logical basis upon which the jury could differentiate between the appellant and the co-accused.
2. The jury's verdict of guilty for the appellant is a 'perverse verdict' because the jury heard evidence given by the co-accused at the trial and supported by the testimony at trial of the co-accused's partner, that the appellant was, at all material times, in the company of the co-accused.
(Page 9)
- 2. THE VERDICT OF THE JURY IS NOT SUPPORTED BY THE EVIDENCE
PARTICULARS
1. The jury did not disbelieve the co-accused and their verdict in relation to him was proof of this. If the jury believed the co-accused then the co-accused's evidence did not support a verdict of guilty against the appellant.
2. The co-accused's evidence effectively provided the appellant with an alibi to the affect [sic] that the appellant was not at the scene of the offence when it occurred.
3. THERE WAS A MISCARRIAGE OF JUSTICE
PARTICULARS
1. The evidence given by the co-accused at trial was admissible for and against the appellant and if the jury accepted the evidence of the co-accused then they ought to have acquitted the appellant.
2. The grounds above are relied upon in this ground in addition to 3.1 above."
40 The appellant was then sentenced to a term of 4 years and 9 months' imprisonment with effect from that date. The trial Judge declined to make an order that the appellant be eligible for parole.
41 The submissions advanced in respect of both grounds of appeal are essentially the same.
42 Mr Hanbury submits that the acquittal of the co-accused Rice makes the conviction of the appellant unsafe and unsatisfactory. That is said to be because the only explanation for Rice's acquittal is that the jury were not satisfied that in respect of the offence the witnesses for the prosecution were truthful and accurate witnesses. He submits the verdicts are incapable of standing together as a matter of law rather than factual inconsistency (MacKenzie v The Queen (1996) 190 CLR 348 per
(Page 10)
- Gaudron, Gummow and Kirby JJ at 366 - 367) and that the jury compromised the performance of their duty. He contends that the jury must have accepted the evidence of Rice and Hinkley and, as their evidence applied as much to the appellant as to Rice, it is impossible to reconcile the not guilty verdict of the jury in respect of Rice with the guilty verdict delivered in respect of the appellant. Accordingly, upon the whole of the evidence it was not open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt whilst, on the same evidence, acquitting the co-accused, Rice. Contrary to Mr Hanbury's submission, this is an assertion of factual, not legal, inconsistency.
43 There are two fundamental problems with these grounds and the submissions. The first is that Rice's acquittal does not mean the jury must have accepted the evidence of Rice and Hinkley. The second is that the evidence against Rice and the appellant was significantly different and Rice's acquittal was readily explicable on the basis that the jury were simply not satisfied beyond reasonable doubt of his guilt on the evidence against him.
44 It is correct to assert, as Mr Hanbury does, that the evidence given by Rice and witnesses called on his behalf, to the extent it touched upon the appellant, was evidence which the jury could take into account on the appellant's trial. But the appellant had not given notice of alibi. He was required to do so if he intended to give or adduce alibi evidence at trial (s 96(3)(a) Criminal Procedure Act 2004 (WA)). The trial Judge explained this requirement to the jury in his summing up when dealing with the alibi evidence adduced by Rice. The fact that the appellant had not given notice of alibi did not preclude him relying on evidence giving him an alibi, given or adduced by Rice, and of course there was no obligation on the appellant to give evidence, whether of alibi or anything else. But the fact that Rice had not mentioned the appellant in his notice of alibi may well have been a factor in the jury's rejection of that evidence as it concerned the appellant.
45 It will be apparent from the outline of the evidence of identification which I have given above, that the identification evidence in relation to the appellant was considerably stronger than that in relation to Rice. On that evidence the jury may well have been satisfied that the appellant was one of the robbers, whilst being left in some doubt as to the identification of Rice as the other robber.
46 Other evidence included the following. The appellant's fingerprints were found on the Toyota near the bent number plate and inside the
(Page 11)
- driver's window. It was therefore open to the jury to find that evidence corroborated the testimony of McIntosh and Glencross that the appellant had been in the Toyota and Glencross' evidence that the appellant took the number plates off the car.
47 The cabcharge invoice found in the Toyota was found to have on it two fingerprints which matched those of the appellant. A taxi driver gave evidence that he had taken two male passengers to Midland on 5 July 2004. He stopped in the driveway of the address given to him where one of the men got out and the other stayed in the car to pay with a credit card. The card was declined. He identified the cabcharge voucher which had on it the taxi number, the amount of the fare and the time. The time shown on the voucher was 9.16 am. This evidence was capable of corroborating the evidence of McIntosh and Glencross that the appellant was in the Toyota on 5 July 2004.
48 Although Rice's fingerprints were found on the Toyota they were located only on the outside. The fingerprint expert said in cross-examination that the fingerprints could have been created by a person touching the car from outside for example, leaning against it.
49 Consequently, in contradistinction to the position of the appellant in relation to this evidence, there was no forensic evidence to corroborate the evidence of McIntosh and Glencross in relation to Rice being inside the Toyota on the day of the offence.
50 I mentioned that in her evidence McIntosh had identified the appellant's voice in a taped telephone call. That was a telephone call between McIntosh and the appellant whilst he was on remand awaiting trial. In the course of the conversation she had told him she had been charged with the offence. He asked her what she was going to do about it, and she told him she intended to plead guilty. He then said:
"If you end up pleading guilty right and I take mine to trial, right. You're allowed to come to my trial and say that I wasn't there whatsoever and nothing can happen to you."
51 The prosecution relied upon that evidence in substance of an admission by the appellant of his part in the robbery. The trial Judge directed the jury accordingly. He told them that if they were satisfied of that, it had two effects - it was capable of amounting to further corroboration of McIntosh and it was also evidence in its own right of an admission or acknowledgement by the appellant of his involvement. No point is taken about this. There was no such evidence against Rice.
(Page 12)
52 The evidence of the stolen recharge cards being used to recharge the two telephones found in the possession of the appellant when he was arrested the day following the robbery was strong evidence linking him with the offence. On the other hand, the evidence against Rice in that regard was only that the mobile phone in his possession was recharged once in the evening of 5 July 2004 for an amount of $30. His evidence was that he purchased the recharge card at the service station. The number of the charge card used was not identified as belonging to one of the cards stolen from the Handymart; those used by the appellant were.
53 It is clear from the above brief analysis of the evidence that the jury could readily have failed to be satisfied beyond reasonable doubt that the prosecution had proved its case against Rice, even if they positively disbelieved his evidence and that of Hinkley.
54 The assumptions upon which the grounds of appeal are foundered are simply incorrect. It cannot properly be said that the jury acquitted Rice "on the same evidence as was admitted against the appellant" or that there was no logical basis upon which the jury could differentiate between the appellant and Rice. Further, clearly enough, if the jury did disbelieve the evidence of alibi adduced on behalf of Rice (which they must have done, insofar as it related to the appellant), then that evidence would not have occasioned them any reason to entertain a reasonable doubt about the involvement of the appellant in the robbery.
55 There is no inconsistency of verdicts and indeed the jury appears to have properly followed the directions given by the trial Judge that they had to separately consider the evidence in relation to each of the accused and return verdicts based only upon the evidence in respect of the individual accused.
56 These grounds of appeal totally lack merit. They have no prospect of succeeding on appeal. Leave to appeal would accordingly not be granted in respect of them (s 25(2) Criminal Appeals Act 2004 (WA)). It was for these reasons that I joined in the decision of the Court on 1 September 2006 refusing the application for an extension of time for the appellant to file his appeal notice.
57 McLURE JA: The grounds of appeal, the case for the prosecution and relevant aspects of the evidence are set out in the reasons for judgment of Roberts-Smith JA. All the grounds of appeal depend on the fact that the co-accused, David Rice, who was acquitted of the charge, gave alibi evidence at trial which evidence was corroborated, at least in part, by the
(Page 13)
- evidence of Mr Rice's partner, Nicole Hinkley. Rice gave evidence that he and the appellant were present, together with Hinkley, at her residence in Lord Street, East Perth at the time the robbery was committed at about 6.55 pm on 5 July 2004 in Bassendean.
58 It was accepted by the parties that the alibi evidence given by and for the co-accused at trial was admissible in the appellant's trial. Section 96(3) of the Criminal Procedure Act 2004 (WA) ("Act") did not apply to the appellant because the alibi evidence was not given or adduced by him. The trial Judge's direction concerning the statutory requirement for written notice of an alibi was in relation to a discrepancy between the written notice given by Rice under s 96(3) of the Act and the alibi evidence at trial.
59 The appellant contended that his conviction was unreasonable and not supported by the evidence because it was inconsistent with the acquittal of Rice. In particular, the appellant contended that the jury must have accepted or, at least, not rejected the alibi evidence of Rice and Hinkley in which event there was no logical or reasonable basis upon which to convict the appellant.
60 The relevant legal principles are summarised in MacKenzie v The Queen (1996) 190 CLR 348 at 366 - 367 and confirmed in MFA v The Queen (2002) 213 CLR 606 at 630 - 631. This is not a case of legal or technical inconsistency which arises where, on the face of the Court's record, there are two verdicts which in law cannot stand together (MacKenzie at 366). The appellant's case is based on factual inconsistency between different verdicts affecting co-accuseds who are tried together. The test to be applied in judging such inconsistency is "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" (MacKenzie at 367).
61 The existence of factual inconsistency can only be determined by reference to the evidence. There was no issue in this case with the fact that a robbery had occurred in the circumstances outlined by the prosecution. The only issue was identity; that is, whether the offenders were the appellant and Rice. Evidence of identification was given by two prosecution witnesses, Kelly McIntosh and Daniel Glencross. The prosecution accepted that they were accomplices. McIntosh had pleaded guilty to the same offence. The evidence of McIntosh and Glencross was irreconcilably inconsistent with the alibi evidence of Rice and Hinkley. Although their identification evidence of the appellant was strong, their identification evidence of Rice was comparatively weak. McIntosh had
(Page 14)
- not met Rice before the offence. She stated that she met him as "Midnight" but did not recall him as a person. She was unable to identify Rice in the dock and could not say whether she had ever seen him before. However, Rice admitted in cross-examination that he was known as Midnight. Glencross identified Rice from a photo board as the person he knew as Midnight. He had not met Rice previously. Although Glencross was able to identify Rice in the dock, he admitted that he was only able to do so because he was the only other person sitting next to the appellant. The trial Judge directed the jury to disregard the dock identification. Both McIntosh and Glencross knew the appellant well.
62 There was also evidence which was capable of corroborating the evidence of McIntosh and Glencross as to the appellant's involvement in the offence. It is detailed in the reasons of Roberts-Smith JA. In summary it includes:
(a) forensic evidence that the appellant's fingerprints were located on the Toyota near the bent registered plate and inside the vehicle;
(b) two fingerprints matching those of the appellant located on a cabcharge invoice found in the Toyota;
(c) evidence that shortly after the robbery had been committed the appellant used a number of mobile phone recharge cards stolen during the robbery;
(d) evidence of a telephone conversation between the appellant and McIntosh which the State relied on as an acknowledgement of the appellant's part in the robbery.
63 There was no forensic or other evidence that corroborated the evidence of McIntosh and Glencross as to Rice's involvement in the robbery.
64 Thus, the evidence against the appellant was materially different from the evidence against Rice. If the jury accepted the alibi evidence of Rice and Hinkley or did not positively reject it, the only possible verdict was that the appellant was not guilty of the offence. However, the verdicts can be reconciled on the basis that the jury accepted the evidence of McIntosh and Glencross concerning the appellant's involvement but were not satisfied beyond reasonable doubt of their identification evidence of Rice. The acceptance of the accomplices' evidence in this way necessitated the rejection of at least so much of the alibi evidence that related to the appellant. There were sufficient material differences in the
(Page 15)
- evidence against the appellant and Rice to justify and reconcile the different verdicts against them. The verdicts are consistent and the appellant's conviction is both reasonable and supported by the evidence. For these reasons, I joined in the order refusing an extension of time within which to apply for leave to appeal against conviction.
65 BUSS JA: I agree with McLure JA.
0
3
1