Kelly v The State of Western Australia - [2018] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KELLY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 21

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 15 JANUARY 2018

DELIVERED : 28 FEBRUARY 2018

FILE NO/S: CACR 105 of 2017

BETWEEN: BRANDON LEE KELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTINO J
File No  :INS 335 of 2016

Catchwords:

Criminal law - Appeal against conviction - Two counts of aggravated armed robbery and one count of aggravated burglary - Whether verdicts unreasonable or unsupported by the evidence - Where only issue in dispute is identity of the offender - Reliability of identification evidence - Whether jury applied incorrect standard of proof

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms S Oliver
Respondent: Mr B Murray

Solicitors:

Appellant: Sarah Oliver
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bibovic v The State of Western Australia [2016] WASCA 22
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Mansell v The State of Western Australia [No 6] [2013] WASCA 120
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The Queen v Dookheea [2017] HCA 36; (2017) 91 ALJR 960
Winmar v State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
JUDGMENT OF THE COURT:

Summary

At about 3.00 am on 4 March 2016, two males forced entry into the house of Ms Foster in Westminster, as she went to the door to investigate a noise. One of the offenders threatened her with a machete. The offenders stole her mobile phone and handbag, and a Subaru WRX parked in the garage.
At about 7.30 am on 4 March 2016, as Ms Nguyen arrived at her mother's house in Mirrabooka, she was threatened by a man holding a machete, who grabbed and stole her handbag. That man was driven away by another person driving the stolen WRX.
At about 8.11 am on 4 March 2016, the appellant was driving the WRX when it was observed by police near the intersection of Great Northern Highway and Morrison Road in Midland. A juvenile, who it is convenient to refer to as B, was a passenger in the vehicle. Following a high speed chase, the appellant and B were apprehended and arrested.
The appellant was convicted after trial of one count of aggravated burglary (Count 1), one count of aggravated armed robbery (Count 2) and one count of stealing a motor vehicle (Count 3) in relation to the Westminster incident. He was also convicted of one count of aggravated armed robbery (Count 4) in relation to the Mirrabooka incident. The appellant pleaded guilty to one count of criminal damage. He was sentenced to a total effective sentence of 5 years' imprisonment with eligibility for parole.
The contentious issue at trial was whether the appellant was the person holding the machete in the Westminster incident and the driver of the WRX at the time of the Mirrabooka incident.
The appellant appeals against his conviction on Counts 1, 2 and 4 on the ground that the verdicts were unreasonable having regard to the evidence.[1] The appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt that he was the person who committed those offences. He takes no issue with the correctness of the verdict with respect to Count 3.[2] The application for leave to appeal was referred to the hearing of the appeal.
[1] Section 30(3)(a) of the Criminal Appeals Act 2004 (WA); Appellant's submissions par 4 (White AB, 7).
[2] Appellant's submissions, par 3 (White AB, 7); appeal ts 2.
For the reasons that follow, leave to appeal should be granted but the appeal must be dismissed.

The State's case at trial

The State's case at trial was that, at about 3.00 am on the morning of Friday, 4 March 2016, the occupant of a house in Westminster, Ms Foster, heard a noise outside her residence that sounded like the gate opening. She checked the time on her mobile phone and went to the front door. As she reached for the front door, the door was opened by a man with a machete who forced his way inside and pushed Ms Foster to the ground. The man was then followed into the house by another male.[3] The State alleged that the man with the machete was the appellant.
[3] Trial ts 52.
On the State's case, the appellant threatened Ms Foster with the machete and held her at bay while the other male went about the house looking for things to steal and took a set of keys from a bowl. The set of keys included the key to Ms Foster's partner's Subaru WRX which was parked in the garage. Both offenders repeatedly asked her how to get into the garage and she eventually opened the garage using the remote control. The offenders got into the WRX and tried to start it.[4]
[4] Trial ts 53.
While this was taking place, Ms Foster took her mobile phone out of her pocket. She was about to dial the police when the second male came back into the house and demanded the phone. Ms Foster provided it to him. The male then took her handbag, which contained her purse and some personal items. He then returned to the vehicle, which had been started, and the two offenders drove away.[5]
[5] Trial ts 53.
Later on the same morning, shortly after 7.30 am, a second robbery took place in Mirrabooka. The victim, Ms Nguyen, had just arrived at her mother's house with some shopping. She was getting out of her car and heading into the carport when she was approached from behind by a man who was wielding a machete. The man grabbed her handbag, which was over her shoulder, and demanded that she drop it. As she does not speak English, Ms Nguyen did not know what the man was saying. Eventually he managed to pull the bag from her shoulder and leave.[6]
[6] Trial ts 54.
The incident was seen by Ms Nguyen's niece, Miss Nguyen, who looked out through the glass sliding doors at the property and saw a man with a machete struggling with her aunt and the handbag. She kept watch and saw the man leave and get into the front passenger seat of a white car that had some black panels on it. She could also see another man in the driver's seat. After the car drove off, Miss Nguyen managed to get outside and see the licence plate. That licence plate matched the WRX that was stolen from Ms Foster.[7]
[7] Trial ts 54.
Police were alerted to the incident and the WRX was located by police. A police chase ensued but was called off because of the way the WRX was being driven. The vehicle was then located and monitored by police some time later. An attempt was made to lay down a 'stinger' to stop the vehicle. In order to avoid going over the 'stinger', the driver of the vehicle (who the State alleged was the appellant) veered to the side and crashed through a fence into a paddock. The two occupants of the vehicle fled on foot and hid in a homestead. Other police officers arrived and the appellant and the other male were arrested and taken into custody.[8]
[8] Trial ts 54 - 55.
Inside the WRX, police found property belonging to both Ms Nguyen and Ms Foster. A forensic check of the vehicle showed three fingerprints of the appellant on the outside of the driver's door.[9]
[9] Trial ts 55.
In the course of their investigations, police attended the address of B's sister, K, and located several items of property that were later confirmed to have come from the WRX. B had been identified as the other male who was involved in the initial robbery of Ms Foster.[10]
[10] Trial ts 55.

The appellant's case at trial

It was accepted by the appellant at trial that he was the driver of the WRX when that vehicle was observed by police in Midland at around 8.11 am on 4 March 2016, and during the subsequent police chase.[11]
[11] Appellant's submissions par 3 (White AB, 7); trial ts 57.
The appellant's case at trial was that he was picked up at his grandmother's house in Balga by B and two other males on the morning of 4 March 2016 and the group had driven to Midland. The appellant said he was getting a lift to see his girlfriend. The appellant contended that two of the men got out of the car when they stopped in Midland and he then got in the driver's seat to take the car for a drive around the block. During that trip around the block the appellant encountered the police and the high speed police chase commenced. The appellant said that he realised the car was likely to have been stolen but maintained that he had nothing to do with the theft of the vehicle or any of the robberies the subject of the charges against him. It was the appellant's case that he was at his grandmother's house in Balga when both of the robberies occurred.[12]
[12] Trial ts 57.

Evidence led at trial

Evidence of Ms Foster

Ms Foster gave evidence that, on 4 March 2016, she heard a banging on the gate in the early hours of the morning. She assumed it was her cat which usually climbs the gate like a ladder. She checked the time on her phone which was under her pillow. It was around 3.00 am, give or take 10 minutes. She went downstairs to investigate. She went to open the front door and saw the perpetrator 'right in [her] face'. The perpetrator had a very large machete in his right hand which he held up with his arm cocked at about a 45 degree angle towards his left shoulder. He was wearing dark pants and a dark top, but she could not recall whether it was short or long sleeved. His hair was a dark colour, either dark brown or black, and it was shorter on the sides and longer on the top.[13] This man asked if there was anyone else home and she said no. He asked her again and she said, 'No, you can look around if you like. It is just me, yeah'.[14]
[13] Trial ts 59 - 60.
[14] Trial ts 60.
Ms Foster said she believed she was pushed down but accepted that she may have fallen on the stairs.[15] A younger male was there at this stage. He had his shirt pulled up against his nose so she could just see his eyes. He had dyed blonde hair. He went upstairs to check if anyone else was there while the man with the machete was guarding her. The offender who was guarding Ms Foster pointed the machete at her and swung it around.[16] Ms Foster had never seen either of the two males before.[17]
[15] Trial ts 61, 72.
[16] Trial ts 61.
[17] Trial ts 68.
The younger male returned after 30 seconds to one minute and asked Ms Foster how to get into the garage. She refused to answer but he kept asking. He became quite aggressive in his tone and was demanding that Ms Foster open the garage door. She hesitated and, after he asked her once or twice more, went up and pressed the garage door opener without saying anything. Ms Foster could not recall whether the man with the machete asked about the garage.[18]
[18] Trial ts 61.
Ms Foster could not remember if both offenders went out but said that the younger male definitely went out and tried to start the car. She could hear that they were having trouble starting the car or putting it in reverse. It was necessary to push the clutch in to start the car, and to lift the gear stick up to put it in reverse. The car keys had been in a bowl or just beside the bowl on a hallway table.[19]
[19] Trial ts 61 - 62.
The offenders managed to get the car started and then the younger male returned and came up to Ms Foster. At that point Ms Foster had grabbed her phone out of the pocket of her track pants and had dialled 000. She was just about to push 'call' when the younger male demanded her phone. She was very hesitant but gave him the phone eventually. The younger male took her handbag which was on the ground on the right‑hand side by the hallway table. The two offenders left in the WRX.[20]
[20] Trial ts 62 - 64.
After knocking on the neighbour's doors with no answer, Ms Foster drove her car to a service station, using a spare car key, and called the police. Police attended at her residence and asked her to come to the police station to make a statement, which she did. She felt extremely terrified at the time.[21]
[21] Trial ts 63.
Police subsequently asked Ms Foster to examine a selection of photographs. On 7 March 2016, she identified the appellant as the man with the machete. Ms Foster said that she was 99% confident, the only doubt she had was the 'change in his eyes'. She did not make the selection instantly, and the only reason Ms Foster had trouble was that she was told not to make a choice unless she was 100% certain. She denied being mistaken in her identification.[22]
[22] Trial ts 64, 74 - 75.
At the time of the incident Ms Foster was on antidepressant medication but said that the medication did not affect her memory. She took the medication daily at 8.30 am. If she took the medication more than two or three hours late she would experience minor vertigo and blurry vision, which would last until an hour after she eventually took the medication. Ms Foster denied that her vision was impacted at the time of the incident.[23]
[23] Trial ts 64 - 66.
Ms Foster was not wearing her glasses at the time of the incident. She uses glasses mainly for reading, working on the computer or if she is in the car. She said that she did not need to wear glasses all the time and did not feel any effect from not wearing them. They were just meant to help her with the glare of the sun and computers. She did not have any difficulty seeing the facial features of either man based on her vision.[24]
[24] Trial ts 64 - 65, 75 - 76.
Ms Foster gave evidence that she believed that the dining room light was on, but could not be 100 % sure. The dining room was near the front door in an open plan area. The outside light was on. Ms Foster said she must have had a light on inside because it was not dark inside, and the outdoor light alone would not have been sufficient to light where she was.[25]
[25] Trial ts 65 - 66.
Since the incident Ms Foster had been put on other medication for anxiety, psychosis and sleep which resulted in short term memory loss but she did not believe it affected her long‑term memory.[26]
[26] Trial ts 65.
In cross-examination, Ms Foster said that the statement which she gave to police was not correct where it said that the blonde male took her handbag before the offenders entered the garage. She gave evidence that:[27]
I had thought about that since I put in my statement and after a lot of thinking about it I am a hundred per cent positive he came back from the shed and then took it. I'm not too sure why I said that in my statement. It could be that it was so early in the morning and it had just happened and I was in shock but I'm a hundred per cent sure now that it was absolutely after they'd started the car and - and he came back and - and grabbed it and then left straightaway.
[27] Trial ts 72.
Ms Foster accepted in cross-examination that her statement to police was correct when it said that the man with the machete was skinny with thick black hair and wearing a loose fitting dark T-shirt and dark track pants. She maintained that the hair of this man was very short on the side and:^[28]
It was really thick on the top sort of like a Mohawk but not in that kind of - it was just huge thick fine hair.
[28] Trial ts 68.
When asked about her statement to police, in which she did not say that the man with the machete had short hair on the sides, Ms Foster said she 'didn't even notice at the time'. When asked to clarify, the following exchange occurred:[29]
Didn't notice it in your statement or at the time you - - -?---Just at the time. All I knew is I could just see this - it was thick hair here. I didn't notice at the time that it was shorter on the side but the more the time went on, the more details I remembered and the more clearer that they seemed as well. I had no doubt as time went on.
…
Ms Foster, is it normal for your memory to improve over time as opposed to at the time of an event?---It is, yes. I feel like I do have short term memory loss but the more I think about things and evaluate it in my head I don't feel like I have long term memory loss and the more I think about things - trying to explain this. For me, that’s not unusual. I've had instances with my sister passing where I remember details that I didn't remember before or small details that didn't occur to me then but have popped up in my mind that have contributed to it.
[29] Trial ts 73.
Ms Foster agreed that she had been asleep before the incident but disagreed that she had been in a deep sleep, as she is a restless and light sleeper.[30]

Evidence of K

[30] Trial ts 73.

B's sister, K, was a State witness at the trial.
During the night of 3 March - 4 March 2016, B knocked on K's window and woke her up. K was not sure what time it was, saying it was late, and that it might have been early hours of the morning. The sun was not up and she did not have a watch on. K opened the door and B was standing there. She saw a car parked in the driveway. It had been reversed into the driveway. The carport and driveway were straight up from the front door. The front light was on. She saw the appellant in the driver's seat, a few metres away from her. B said he wanted to come in and grab a jumper. He grabbed a jumper and two basketball caps. When K went back inside and went to bed she could hear her brother moving things around outside in the driveway. She heard a 'rustling' for a few minutes and then heard the car leave. K said it might have been 2.00 am or 3.00 am, and that she checked the time on her iPad after B had left.[31] In cross-examination, K said:[32]
I think it might have been, like, 3.30, roughly around then.
No, sorry?---It was late - or early hours of the morning sometime.
[31] Trial ts 118 - 120.
[32] Trial ts 121.
The next morning police attended K's residence and her attention was drawn to some items in the carport. Those items were not there before B arrived, or before she went to bed, that night. Given the location of the carport, she would need to go past it every time she went to the front door, so she would notice what was in the carport.[33]
[33] Trial ts 120 - 121.
In cross-examination, K was taken to a number of inconsistencies between her witness statement and her evidence. She agreed that what she said in her statement made on 4 March 2016 is more likely to be accurate than her memory at trial.[34] It is convenient to set out relevant parts of the cross‑examination in full:[35]
[34] Trial ts 121 - 122.
[35] Trial ts 122 - 123.
You make no mention in that statement that the light was on in the carport?---Well, I wasn’t taking notice, really, but the light was on.
Are you saying - - -?---I always have the light on at night.
Okay. You say in your statement you looked outside and saw a white sedan 'parked inside my carport'?---Mm.
And that, 'I noticed a male in the driver’s seat. 'Remember saying that?---Yeah.
And then in your statement you say you asked [B] who was in the car?---Mm.
And he told you [the appellant]?---Yeah.
Now, you don’t say anywhere in the statement that you saw [the appellant] that morning, do you?---Well, [B] - I asked [B] who was in the car, and he said, 'Brandon,' and I said, 'Who, Brandon Kelly?' and he said, 'Yeah.'
But you didn't see [the appellant] that morning. You only believed [the appellant] was in the car because of what [B] told you, isn't that the case?‑‑-I can see him sitting in the car when my brother came inside to get the clothes.
[K], you don't say in your statement that you made on the day that you saw [the appellant] in the car?---I don’t know. They was there. They was in the car. And [B] said that it was him in the car.
Yes, now, you've said that [B] told you [the appellant] was in the car in your statement, but you do not say that you saw [the appellant] in the car, and that's because you didn't see [the appellant] in the car that day, isn't it?‑--I seen - he was sitting in the car when I looked out into the driveway.
[K], what you said in your statement on the morning of 4 March 2016 ‑ - -?---Mm.
- - - that’s the truth, isn't it?---No, it's not. Well, most of it is, but the bit where - I forgot to put in that I seen who was [in] the car, and who was there at the time and all that.
The police officer would have asked you if you'd seen other people in the car; didn't he?---Yeah.
And you did not say at any time on that day that you had seen [the appellant] in the car?---(No audible answer).
Can you answer the question? You didn't say at any time on 4 March that you saw [the appellant] in the car, did you?---I didn't think of it at that time.
[K], you've known [the appellant] and some of his family for some time, haven't you?---Yeah, I do.
…
[K], in your statement you make no reference to the light in the carport being on, and you only refer to it being dark. That’s the truth, isn't it? There was no light on - - -?---Yeah, the sky was dark, yeah. (emphasis added)

K denied that she was lying about having seen the appellant at her house because the appellant's brother did not want to continue a relationship with her, or because she had had a falling out with the appellant's girlfriend (with whom she used to be friends).[36]

Evidence of Ms Nguyen

[36] Trial ts 123 - 124.

Ms Nguyen gave evidence through an interpreter. She arrived at her mother's Mirrabooka house at about 7.00 am or 8.00 am on 4 March 2016 and parked at the front. When she got her shopping out of the car, she saw a car and two young men sitting in the car looking at her. She did not remember what colour the car was. She then walked towards the house to go inside when the two men approached her. One of the men was talking to her but she could not understand him. He tried to grab her handbag with one hand and she saw that he was holding a knife in the other hand. The knife would have been approximately 30 ‑ 40 cm long and 10 cm wide. He moved the knife backwards and forwards. Ms Nguyen felt very scared. She could not remember how close the knife came to her body.[37]
[37] Trial ts 95 - 97.
Ms Nguyen let go of the hand bag and then chased the man yelling 'help me, help me'. The man went back to the car which she had seen parked outside. Her niece came out and looked at the car registration number.[38]
[38] Trial ts 97 - 98.
Ms Nguyen described the man with the knife as wearing a grey T‑shirt which looked like it had a hat on it. She saw a driver sitting in the car, who was a little bit shorter than the other man. [39]

Evidence of Miss Nguyen

[39] Trial ts 97 - 100.

Miss Nguyen was 15 years old when she gave evidence at the appellant's trial, and would have been 14 or 15 at the time of the incident. She had been sleeping over at her grandmother's house in Mirrabooka the night before. Miss Nguyen recalled that her aunt arrived at approximately 7.30 am ‑ 7.45 am, when she was getting ready for school. Miss Nguyen heard Ms Nguyen yelling outside so she walked out of the bathroom and looked through a sliding door that looked out onto the patio. Ms Nguyen was about 20 m away. Miss Nguyen could hear Ms Nguyen yelling 'Hey, hey, stop'. Ms Nguyen spoke Vietnamese and not English. Miss Nguyen could see a man there. She described him as fairly tall with a slim build. Ms Nguyen was holding her groceries in a plastic bag and her handbag, and the man was holding a machete which was 'pretty big'. The man was less than a metre away from Ms Nguyen. The man grabbed Ms Nguyen's handbag and he held the machete up in the air. Ms Nguyen was holding back her hand bag and fought back. Miss Nguyen heard her mother tell Ms Nguyen to drop the bag. The man then ran off to a car parked outside. She did not see anyone else running with him. [40]
[40] Trial ts 81 - 84.
Miss Nguyen's view was initially obstructed by a wall but as she got closer she could see the full view. Her view was not obstructed when she saw the man run to the car or get into the front passenger's seat of the car. She saw the driver of the car but could not remember what he looked like.[41]
[41] Trial ts 83 - 84.
Miss Nguyen then went outside and tried to remember the licence plate. The men tried to get away but the engine would not start for a few seconds. They then sped off. The entire incident took just over a minute. Miss Nguyen described the car as white with black on the roof, the boot and part of the front. She spoke with police when they arrived and provided them with the licence plate number of the vehicle.[42]
[42] Trial ts 84 - 85.
The police subsequently asked Miss Nguyen to examine a selection of photographs, which included the appellant. She made a selection from the photographs.[43] She selected someone other than the appellant as one of the offenders.[44] The evidence did not explore the question of which of the two offenders Miss Nguyen thought she was identifying.
[43] Trial ts 85 - 86.
[44] Exhibit 7; trial ts 116.
Miss Nguyen gave evidence that she was quite scared during the incident. In cross-examination she said that she had seen CCTV footage of the incident but maintained that she was not mistaken about the number of men she saw. She said that the garage door was open when she saw the man with the machete. If it had been closed, she could not have seen what was happening from the street.[45]

Evidence of Constable Whiteroad

[45] Trial ts 86 - 87.

Constable Stacey Whiteroad's statement was read into evidence.[46] On 4 March 2016, she was on duty with Senior Constable Powell in an unmarked police vehicle. At about 8.11 am that day they were travelling north on Great Northern Highway near Morrison Road, Midland when they heard a broadcast from Police Communications to keep a lookout for the stolen WRX. Seconds after hearing this broadcast, they saw the WRX travelling south on Great Northern Highway. Constable Whiteroad observed two men in the front seats of the vehicle. As noted at [16], the appellant accepts that he was the driver of this vehicle when observed by Constable Whiteroad. Constable Whiteroad's evidence then goes on to describe the police chase which ensued, culminating in Constable Whiteroad and Senior Constable Powell arriving at the location where the appellant had been arrested by other officers.

Evidence of Senior Constable Sanders

[46] Trial ts 88 - 90.

Senior Constable Sanders' statement was read into evidence.[47] He described observing the car driven by the appellant swerve to avoid a tyre deflation device deployed by police, drive through a paddock fence, and its occupants escape on foot. As a result of information provided by the police helicopter, Senior Constable Sanders attended the building in which the appellant and B were found. He advised he had a police dog, and if they did not come out they may get bitten. One male person presented to him and complied with directions given. He was taken into custody without incident by other police. Senior Constable Sanders' dog then began searching the house and located the second person hiding in a wardrobe in a bedroom at the back of the house. He complied with the instructions given, and was taken into custody without incident.

Evidence of Dr Staker

[47] Trial ts 90 - 91.

Dr Staker is a fingerprint expert who analysed fingerprints found immediately to the bottom left of the wing mirror on the driver's side door of the WRX. He found that those were the fingerprints from the appellant's right index, middle and ring fingers. The positioning was consistent with the prints being made with one touch (ie, being placed at the same time).[48]
[48] Trial ts 100 - 102, exhibit 1.
Five other prints analysed by Dr Staker remained unidentified when compared against the prints of the appellant, and another contained insufficient evidence to either identify or exclude any person. The appellant was excluded as the donor of the five prints which remained unidentified. These prints came from the edge of a key bowl and a door frame at Ms Foster's home. [49]
[49] Trial ts 102 - 103, 105.
Dr Staker then described the factors which might influence whether or not sufficient material is left behind for fingerprint identification.[50]

Evidence of Detective Senior Constable Pople

[50] Trial ts 103 - 104.

Detective Senior Constable Pople was the investigating officer. He obtained CCTV footage and conducted the video record of interview with the appellant. In relation to the CCTV footage of the incident involving Ms Nguyen, DSC Pople gave evidence that he would have checked that the timestamp was correct by reference to his watch. He did not recall there being any major discrepancy, though there might have been one of a couple of minutes.[51]
[51] Trial ts 105 - 109, 112.
Detective Senior Constable Pople gave evidence that, at the time of his arrest, the appellant was wearing shorts, a tank top style singlet, a hat, gold necklaces and two earrings. In cross-examination he said that he did not observe the appellant being arrested and that the first time Detective Senior Constable Pople saw the appellant he was no longer in this clothing. No watch was seized from the appellant.[52]
[52] Trial ts 113, 116 - 117.
Detective Senior Constable Pople also gave evidence that property belonging to Ms Foster was located at K's residence and further property suspected of being stolen and the machete were located in the WRX after it was abandoned.[53] He then provided the results of two separate photoboard identification procedures.[54] Ms Foster selected number 4 on the photoboard presented to her, which was the appellant. Miss Nguyen identified number 7 on the photoboard presented to her, whereas the appellant was number 6 on that photoboard.

The appellant's video record of interview

[53] Trial ts 107, 114 - 116.

[54] Trial ts 114 - 116.

From about 1.46 pm on 4 March 2016, the appellant participated in a video record of interview.[55] When asked what he was doing from midnight, the appellant said 'I don't even know' and that he was off his face and smoking 'rock' (methylamphetamine). He had last smoked methylamphetamine at some point around midnight. The appellant described the drug's effect as a bit intense because he had not used it for several days. He said he was not affected by drugs during the police interview.[56]
[55] Exhibit 5.
[56] Blue AB, 14 - 15.
The appellant told police he was at his grandmother's house in Balga and that the only thing he remembered was the chase in the morning. In addition to his grandmother, the appellant's uncle and aunt were also at the house, and his sisters came and went. The appellant said he was 'chilling' at the house all day and was picked up later on.[57]
[57] Blue AB, 15 - 19.
The appellant remembered leaving the house when he was picked up. The sun was coming up. He left in a car. Three boys rocked up in a white hatchback with a black roof. He declined to identify the people who picked him up. He sat in the left back passenger seat. He knew the people who picked him up. Some of them were Aboriginal and some were white. They came to pick him up as they were 'cruising around the hood'. It was not arranged, they just rocked up and he wanted to get a lift to Midland to see his girlfriend.[58]
[58] Blue AB, 19 - 22.
They 'gunned it' down to Midland and a couple of people jumped out of the car. Everyone got out except the appellant and one other person. The appellant got into the driver's seat. It took about 10 minutes to get to this location. They did not stop anywhere on the way. The appellant was not sure why the others got out. He thought they were getting drugs, but it was not his problem. They were expected to wait for the people who got out, who had said to drive around the block, which the appellant did. The appellant came around the corner, the police tried to pull him over and he 'just took the chase'. The appellant admitted to driving during the high speed chase. He said he was 'off [his] face'. He could not remember many details of the chase.[59]
[59] Blue AB, 22 - 28.
After the car crashed, the appellant said that the other man got out of the car first and he was not following him. When he got to the house, the door was already open and he went in. The appellant did not stay with the car as he saw the police dog and did not want to get bitten.[60]
[60] Blue AB, 30 - 31.
When the appellant was driving the car, he was worried about the police pulling him over because of the car. He said he thought it was a stolen car and was trying to get away from the police.[61]
[61] Blue AB, 33 - 34.
The appellant denied owning a machete and having any involvement in the robberies and burglary. He said he was still at his grandmother's house at 2.30 am, as he had been there all night. Between 7.00 am and 7.30 am he was heading towards Midland. The appellant agreed that the sun was well and truly up at this time. He said he did not know what time the sun comes up and that his estimates as to time are rough as they are 'off my face times'. He said that at around 7.20 am ‑ 7.40 am he would have been in Midland, but that they went through Mirrabooka on the way to Midland.[62]
[62] Blue AB 36 - 41, 45 - 47, 49, 50.
When asked about the cap which he was wearing when he was arrested, he said it was sitting on the centre console in the car and he put it on:[63]
KELLY: Yeah. I just put the cap on.
S/CON BEAUFORT: Yep. Was there any other items, w-, with it?
KELLY: Oh, yeah. There was shit packed in the car, man, do you know what I mean? I just put that on when I started getting changed inside the place.
S/CON BEAUFORT: What? Why did you decide to put it on?
KELLY: Oh, ah, to cover up a bit, pretty much.
[63] Blue AB, 44 - 45.
The appellant said he had been to K's residence before but did not think he had been there on 4 March 2016. He denied going there and disposing of the property.[64]

Video footage

[64] Blue AB, 52 - 54.

The prosecution tendered video footage of the police chase,[65]as well as CCTV footage of the occupants of the WRX getting petrol at a Puma petrol station,[66] and of the incident relating to Ms Nguyen (taken from a neighbour's house)[67].
[65] Trial ts 108, exhibit 2.
[66] Trial ts 109, exhibit 3.
[67] Trial ts 112 - 113, exhibit 4.
The footage of the police chase shows the appellant and B running together across a paddock and towards a dwelling. The appellant was wearing a dark baseball cap, dark singlet and dark shorts. B was wearing a dark baseball cap, long dark pants and a long-sleeved dark and grey hooded jumper. The footage does not show the police pursuit of the WRX or how it ended up in the paddock.
The footage from the petrol station shows the WRX arrive at the station at 4.32 am, and one male get out of the car to fill it up with petrol. He is wearing long dark pants with a skinny fit, a black baseball cap, and a black hooded jumper which is grey on the inside of the hood. The driver can be seen sitting in the driver's seat. The image is very blurry but the driver appears to be a male similar in appearance to the appellant. He can be seen wearing a dark singlet and a necklace.
The CCTV footage of the robbery of Ms Nguyen shows a car turn into a driveway at a house on the other side of the road to the location of the CCTV camera, and a woman unloading shopping from the back passenger seat. The time stamp reads approximately 7.38 am when Ms Nguyen arrives. Three people can be seen walking up to the house after Ms Nguyen. At least two people can be seen running from the carport at around 7.41 am, with more people running out about 5 seconds later. The actual robbery cannot be seen and the carport door is closed. The WRX can be seen driving up and down the road, but the image is not clear enough to enable the number of occupants of the vehicle to be identified.

Evidence of Margaret Kelly

Ms Kelly is the appellant's grandmother. She gave evidence that, on 3 March 2016, the appellant and Ms Kelly's son (the appellant's uncle) were at Ms Kelly's residence in Balga. The appellant was there all day and he spent the day and the night with her. The house has three bedrooms, but Ms Kelly normally sleeps in the lounge. Because she has the TV, she will sleep in the lounge on the bed and watch TV until quite late. She said the appellant stayed all night:[68]
because I didn't - sorry, I didn't go to sleep till after 11 or something and I sleep light.
[68] Trial ts 126 - 127.
Ms Kelly knew the appellant was there all night because she could hear him talking to her son. They were coming in and out of the lounge room. The appellant left at sun‑up, and this was the first time she saw the appellant leave the house:[69]
He spent all night and then he left about - around 7, I guess. I heard a door slam, car door slam, but I didn't look to see what car or anything.
Right. Did you look at a watch or anything when he left?---Yeah, my mobile's always next to me.
[69] Trial ts 127 - 128.
In cross-examination, Ms Kelly accepted that she would have been asleep at around midnight and that she did not really know what the appellant was doing around midnight, but that she knows 'when [she] opened [her] eyes he was there'. When asked about the appellant's drug use, and whether she was aware that he has used methylamphetamine while at her house, Ms Kelly said that 'he don't use drugs in my house because I don't allow it' and that it '[c]ould've been across the road'. She said she could be sure that the appellant did not use drugs that night '[b]ecause I know. They know not to'. Ms Kelly said she did not know the appellant used drugs and had never seen him do so as it is not allowed at her house.[70]
[70] Trial ts 128.
Ms Kelly maintained that she was a light sleeper and could hear her son and the appellant talking as her son is not quiet. She heard the car door slam when she was waking up but could not say who it was who got in the car and left. She did not see the appellant leave or hear the front door open or close. She only heard the sound of the car door slamming. She believed it was the appellant as he was the only one in the house at the time as her son had gone out. She accepted that her son may have come and gone during the night and she would not have known, as 'he always does'. Ms Kelly accepted that when she is trying to go to sleep she does not try to stay awake and listen to what is going on as she does not 'sticky beak that way'. She said that she would do anything to protect her grandson but she would not lie for him.[71]
[71] Trial ts 129 - 130.

Ground of appeal

The appellant relies on a sole ground of appeal, namely, that the verdicts in relation to Counts 1, 2 and 4 are unreasonable or unsupported by the evidence. The appellant relies upon the following particulars:
(a) the identification evidence in Counts 1 and 2 was unreliable and ought to have given rise to a reasonable doubt as to the accuracy of the complainant's identification of the appellant;
(b) in order to find the appellant guilty on Count 4, the jury had to have found, beyond a reasonable doubt, that the witness Lily Nguyen was mistaken in her identification of another person in her photo-board procedure. Having regard to the other evidence, there was no basis for such a finding; and
(c) having regard to a question asked by the jury about the meaning of reasonable doubt, it can be inferred that the jury have applied an incorrect and/or lesser burden of proof in reaching their verdicts.

Appellant's submissions

Counts 1 and 2

The appellant submits that the identification evidence of Ms Foster in respect of Counts 1 and 2 was unreliable and ought to have given rise to a reasonable doubt as to the accuracy of the identification of the appellant as one of the offenders, and that the other available evidence was not sufficient to strengthen Ms Foster's identification evidence.
The appellant points to the following factors which were, in the appellant's submission, likely to affect Ms Foster's reliability:
(1)The incident occurred at around 3.00 am in the morning;
(2)She was alone in the house;
(3)She had been asleep and had been sleeping for some period before the incident;
(4)She was terrified;
(5)Prior to the incident, Ms Foster was taking anti-depressants;
(6)She was not wearing her glasses; and
(7)She had not seen either of the offenders before.
The appellant submits that the concerns as to identification are heightened when regard is had to the lack of forensic evidence linking the appellant to the crime scene or the machete, and the clothing described by Ms Foster being inconsistent with the clothing worn by the appellant at the time of arrest.
The appellant submits that the other evidence was insufficient to strengthen Ms Foster's identification evidence. The appellant submits that K's statement was unreliable, and the clothing worn by the driver of the WRX at the petrol station was not distinctive.

Count 4

The appellant submits that for the jury to convict the appellant on Count 4, they had to be satisfied beyond reasonable doubt that Miss Nguyen was incorrect when she identified a person other than the appellant as the offender. The appellant submits that the circumstances in which she viewed the offenders were more favourable than Ms Foster's circumstances, and therefore her identification is more reliable. The factors pointed to are that:
(1)Ms Nguyen observed the offenders in daylight;
(2)She was not the actual victim of the robbery; and
(3)She was in the company of other relatives and therefore was not alone.
The appellant submits that the other available evidence was not sufficient to justify the jury being satisfied beyond reasonable doubt that Miss Nguyen's identification evidence was incorrect, and further that the evidence gave rise to inferences other than guilt. The appellant submits that K's evidence was unreliable, that she had reason to be untruthful, and points to the lack of other evidence linking the appellant to the offence.

Standard of proof

In relation to Counts 1, 2 and 4, the appellant also submits that it can be inferred that the jury have applied an incorrect and/or lesser burden of proof in reaching their verdicts. The court received a note from the jury during their deliberations which read:[72]
We have an impasse and are struggling to get past it. People have different interpretations on reasonable doubt, some supposing it would be 51 per cent sure. Can we have a further clarification?
[72] Trial ts 197.
In response to this note, his Honour directed the jury that the expression 'beyond reasonable doubt' means 'exactly what it says it means'. He told the jury that it was incorrect to equate 'beyond reasonable doubt' with 51% certainty and that 'no percentage is an appropriate analogy'. He emphasised that the test to be applied is whether the State has proved the charge beyond reasonable doubt. His Honour also gave an orthodox majority verdict direction.[73] Defence counsel expressly agreed with that course.[74]
[73] Trial ts 198.
[74] Trial ts 197.
The appellant takes no issue with these directions. The appellant points to the jury taking just 24 minutes to reach a verdict on all counts after these directions were given (a majority verdict on Counts 1 and 2, and a unanimous verdict on Count 4), and the evidentiary issues raised above.

Respondent's submissions

Counts 1 and 2

The respondent submits that some of the features identified at [73] above do not, in fact, logically affect the reliability of Ms Foster's identification evidence. In particular, the respondent says:
(1)The fact that Ms Foster was alone in the house does not of itself affect the reliability of her identification. This fact is really an aspect of her being terrified;
(2)Although Ms Foster's vision might become blurred if she was late taking the antidepressants, she testified that she took her medication at 8.30 am every morning and there is no evidence that she had taken her medication late. There was no evidentiary basis for asserting that her vision may have been blurred at the time of the robbery; and
(3)The fact that Ms Foster was not wearing her glasses does not affect the reliability of her identification given the evidence which she gave as to the purpose for which she wore glasses and as to her vision during the incident.
The respondent submits that Ms Foster is likely to have impressed the jury as a careful witness given her care in selecting an image during the photoboard procedure, and her acknowledgement of aspects of her memory of which she was not 100% certain. The respondent further points to the duration of time Ms Foster was with the offender as a feature supporting her reliability. The respondent submits that the absence of forensic evidence is a neutral fact. The respondent submits that the appellant had ample opportunity to change his clothes and that the record of interview suggests that he changed his clothes at an unspecified location.

Count 4

The respondent submits that the appellant's reasoning that Miss Nguyen's failure to identify the appellant leads to the conclusion that Ms Foster's identification of him must be unreliable is illogical.
The respondent submits that evidence which demonstrates the potential participation of more than one person in the commission of the robbery does not provide positive support for the appellant's defence. The respondent submits that the jury was entitled to reject the appellant's account of events and to accept K's evidence.
The respondent accepts that the CCTV footage from the neighbour's property shows three people following Ms Nguyen towards her house. The respondent submits that it was open to the jury to be satisfied that the only reasonable inference to be drawn from the evidence was that the appellant (as opposed to some other offender) was the driver of the WRX at the time Ms Nguyen was robbed.

Standard of proof

The respondent submits that there is no reasonable evidential basis from which the inference contended for by the appellant can be drawn. The circumstances indicate no more than that the jury approached their task in a careful and conscientious way and sought the trial judge's assistance when they considered that this was necessary. They were then properly directed.

Unreasonable verdict: general principles

Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow this appeal if, in its opinion, the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different from the conclusion that the verdict is unsafe or unsatisfactory.
In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.[75] As the majority noted in M v The Queen:
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)
[75] M v The Queen (1994) 181 CLR 487, 492 - 493.
This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[76]
[76] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].
The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[77]
[77] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia[No 6] [2013] WASCA 120 [16] ‑ [19].

Consideration: Counts 1 and 2

The following evidence, considered in combination, satisfies us beyond reasonable doubt that the appellant was the person holding the machete at Ms Foster's house:
(1)Ms Foster was able to positively identify the appellant as the offender. She had a full view of the appellant's face over a number of minutes during the course of the commission of the offence. She was close to the appellant and the area was lit. While aspects of Ms Foster's evidence indicated a tendency to reconstruct her memory in the time which had passed since the offence, she identified the appellant from a photoboard only a few days after the incident. She had not failed to take medication (which might have had an impact on her perception). While she was not wearing glasses, the purposes for which she required them did not detract from her identification of the appellant. Having regard to the matters which can affect the reliability of identification evidence,[78] this was a relatively strong positive identification.
(2)K's evidence was that she saw the appellant in the WRX when property stolen from Ms Foster was left by B. As the appellant was well‑known to K, her evidence was of recognition rather than identification. K did not tell police she actually observed the appellant when her statement was taken on the day of the offence. However, K did not positively tell police that she did not see the appellant in the vehicle. Her evidence at trial was capable of being understood as indicating that B told her the appellant was in the car and she then looked and saw the appellant sitting in the car, and of being accepted on that basis.
(3)CCTV footage showed the WRX at the Puma petrol station at about 4.30 am, being driven by a person who was of similar appearance to the appellant and wearing a singlet and necklace similar to those worn by the appellant at the time of his arrest later that morning. While this clothing was different from the clothing worn by the man holding the machete at Ms Foster's house, the appellant had the opportunity to change clothes, and when interviewed by police appeared to refer to having changed clothes in the WRX. At that time B was the only other person in the WRX.
(4)The appellant was seen driving the WRX at 8.11 am that morning, and took drastic steps to avoid police when he saw them.
[78] See Winmar v State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159.
It was open to the jury to be satisfied beyond reasonable doubt from all of the above evidence, and we are satisfied beyond reasonable doubt, that the appellant was the person holding the machete at Ms Foster's Westminster house. It was open to the jury to reject, and we reject, the account given by the appellant during his police interview as to how he came to be driving the WRX on the morning of 4 March 2016. If that account were true, then the appellant would have been with the WRX at the time of the robbery of Ms Nguyen. Ms Kelly's evidence did not take the matter any further, as the effect of her evidence was merely that she had heard a car door shut when she awoke and assumed that this was the appellant leaving her house. Ms Kelly's evidence of an alleged alibi was without merit.

Consideration: Count 4

We do not accept the appellant's submission that the jury had to be satisfied beyond reasonable doubt that Miss Nguyen was mistaken in her photoboard identification of a person other than the appellant before the jury could find the appellant guilty of Count 4.
The photograph selected by Miss Nguyen (photo 7) was of a person who is similar in appearance to the appellant (shown in photo 6 on that photoboard). There was no evidence that photograph 7 was chosen for a reason other than the similarity of the person shown to the appellant.
The effect of this evidence is that there was no positive identification of the appellant in relation to Count 4.
The CCTV footage shows three persons following Ms Nguyen from her car. However, the State's case was that the appellant was the driver of the WRX.[79] The evidence of there being more than two persons present at the time of the robbery raises the possibility that there were other co‑offenders.
[79] Trial ts 146.
In assessing the State's case, the circumstantial evidence must be evaluated in its entirety, and not considered on a piecemeal basis, in deciding whether the only reasonable and rational inference is that the appellant was the driver of the WRX immediately before and immediately after the commission of Count 4.[80]
[80] See Mansell v The State of Western Australia [No 6] [2013] WASCA 120 [20] - [22] and cases there cited.
The jury were entitled to be satisfied, beyond reasonable doubt, that the appellant used the machete to steal the WRX from Ms Foster at about 3.00 am on 4 March 2016, and that the appellant was driving the WRX when stolen property was left at K's house at around 3.30 am, when it was refuelled at about 4.30 am and when it was seen by police at 8.11 am. There was no evidence of any other person driving the WRX after it was stolen from Ms Foster by the appellant and B. The appellant and B were the only persons in the WRX (in which items associated with the robbery were still located) when it was observed by police about half an hour after Ms Nguyen was robbed. It was open to the jury, assessing all of this evidence as a whole, to conclude that the only reasonable and rational inference which could be drawn from the circumstances as a whole was that the appellant was the driver of the WRX immediately before and immediately after Ms Nguyen was robbed. Having regard to that evidence, it would not be dangerous in the circumstances to permit the verdict of guilty on Count 4 to stand.
In the course of oral argument, counsel for the appellant accepted, correctly, that the appeal was to be determined by reference to this court's assessment of the evidence rather than speculation about what individual jurors might have reasoned based on the question posed to the trial judge.[81] In any event, there is no merit to the contention that it can be inferred from the jury's question that it applied a lesser standard of proof in reaching its verdicts. His Honour's response to the jury's question was clear and emphatic, and was in accordance with authorities such as Darkan v The Queen.[82] There is no reason to infer that the jury did not follow his Honour's direction.
[81] Appeal ts 15 ‑ 16.
[82] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [69]. See also The Queen v Dookheea [2017] HCA 36; (2017) 91 ALJR 960.

Conclusion and orders

For the above reasons, the ground of appeal is not established in relation to any of the counts on the indictment. While we would grant leave to appeal, the appeal should be dismissed.