Madul v the Queen
[2018] VSCA 142
•1 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0233
| PETER MADUL |
| v |
| THE QUEEN |
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| JUDGES: | OSBORN, NIALL and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 May 2018 |
| DATE OF JUDGMENT: | 1 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 142 First Revision: 1 June 2018 |
| JUDGMENT APPEALED FROM: | R v Madul (Unreported, County Court of Victoria, Judge O’Connell, 19 October 2017) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Theft – Aggravated burglary – Attempted armed robbery – Circumstantial evidence as to identity of intruder in two home invasions in same street on same night – Fingerprints – Whether verdicts unsafe and unsatisfactory – Whether reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s identity or whether jury obliged to come to a different conclusion – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | Emma Turnbull Lawyers |
| For the Respondent | Mr J C J McWilliams | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA
NIALL JA
ASHLEY JA:
On 29 August 2017, the applicant was convicted by a jury in the County Court of three charges of theft, two charges of aggravated burglary and one charge of attempted armed robbery.
He now seeks leave to appeal those convictions on the ground that the verdicts are unsafe and unsatisfactory. This ground invokes s 276 of the Criminal Procedure Act 2009 which requires the Court of Appeal to allow an appeal against conviction if the appellant satisfies the Court that the verdict of a jury is unreasonable or cannot be supported having regard to the evidence.
The case in issue was a circumstantial one relating to sequential offending in the early hours of the morning at two houses in a residential court in an outer Melbourne suburb.
The defence at trial put in issue the identity of the offender involved in the sequential offending.
The critical question for this Court is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s identity or whether the jury was obliged to come to a different conclusion from that which it reached.[1]
[1]R v Klamo [2008] 18 VR 644.
In Libke v The Queen,[2] Hayne J expressed the relevant principle as follows:
It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But 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. 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.
[2](2007) 230 CLR 559, 596–7 [113] (citation omitted) (emphasis in original).
The stringency of this test reflects the fact that the jury is the constitutional tribunal for deciding questions of fact.[3]
[3]R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].
For the reasons set out below we have concluded that it was open to convict upon the basis of the combined force of the circumstantial evidence implicating the appellant.
Accordingly, leave to appeal should be refused.
The circumstances of the offending
On Tuesday 1 March 2016, shortly after 1:00 am, Mr Xi Long Zhang and his wife Ms Nan Zhen He were asleep in their bedroom at 3 Sedgwick Court, Lynbrook. An intruder entered their house and woke Mr Zhang and Ms He by turning their bedroom light on and off a number of times (charge 1 — aggravated burglary — person present). The intruder was armed with a sharp chopping knife approximately 20 centimetres in length which belonged to Mr Zhang and Ms He and had been taken from the kitchen in their house. The intruder demanded Mr Zhang and Ms He give him their car keys.
At that point Bin Zhang, the 18 year old son of Mr Zhang and Ms He, came out of his bedroom and saw the intruder standing in the doorway of his parents’ bedroom. As Bin Zhang approached, the intruder moved towards him and Mr Zhang warned his son that the intruder had a knife. Bin Zhang then stepped back. The occupants and the intruder moved into the kitchen area and the intruder demanded the car keys again. The occupants of the house told the intruder that Mr Zhang’s brother had taken the car keys (charge 2 — attempted armed robbery). The intruder took nine packets of Chinese cigarettes and with the knife still in his hand left the house (charge 3 — theft). Approximately five or ten minutes later at 1:49 am Bin Zhang made a call to triple 0 notifying police of what had transpired.
In the course of his evidence at the trial, Mr Zhang described the intruder as black skinned with short curly hair and more than 170 centimetres tall.
Ms He described the intruder as having black skin and very short black hair and that he was wearing a jacket and carrying a black backpack.
Bin Zhang also described the intruder as having black skin. He was ‘pretty tall’ and not very strongly built. He was tall, thin and ‘not strong’. He had short hair with a hairstyle which Bin Zhang characterised as typical of his ethnic group (although it is unclear what was meant by this).
The witnesses also said that the intruder was not wearing gloves and that he had a backpack.
A short time after the first burglary at 3 Sedgwick Court, an intruder entered a house at 17 Sedgwick Court where Mr Sunil Vaidyanathan lived with his wife and two daughters. The intruder entered the house after accessing the backyard through a side gate and proceeding into the garage and through an unlocked door into the house. Mr Vaidyanathan, his wife and two daughters were all asleep in the house at the time (charge 4 — aggravated burglary).
The intruder took two sets of car keys from a hook in the hallway of the home and returned to the garage. The intruder opened the garage roller door using the remote control on the car keys and reversed Mr Vaidyanathan’s black Honda sedan into the driveway. He then got out of the Honda. The headlights were also left on and the driver’s side door was left open (charge 5 — theft). The knife taken by the intruder from 3 Sedgwick Court was left on the outside ledge of the front passenger seat. Mrs Vaidyanathan’s red Holden Barina was parked on the nature strip outside 17 Sedgwick Court. The intruder used a second set of keys taken from the house in order to steal the Barina and leave the scene in it prior to police arriving (charge 6 — theft).
Officers from the Narre Warren Police Station attended Sedgwick Court in response to the triple 0 call at 2:05 am. Two investigating detectives then arrived at number 3 Sedgwick Court at approximately 2:35 am.
One of the uniformed police officers that first attended the scene had by that point door knocked the street and had discovered that further offending had occurred at number 17 Sedgwick Court.
Having located the Honda with the door open and the headlights on, police concluded that it had probably been reversed out of the garage and abandoned when difficulties were experienced with the foot parking brake. The knife taken from 3 Sedgwick Court was located at this point in time. One of the detectives drove the Honda into the garage and locked it and placed the key in the house. He and his team then prepared a briefing for the Casey Crime Scene Investigation Unit.
Crime scene investigators attended the two houses later that day. They took a fingerprint from the blade of the knife found in the Honda car. Subsequent analysis demonstrated that the fingerprint was made by the applicant’s left thumb.
A fingerprint was also obtained from a cigarette carton which was displaced in the course of the initial burglary and left on the ground within what was described as an alfresco area.
Fingerprints were also taken from a wine bottle which police were told was unopened prior to the burglary but was found to have been opened and apparently drunk from during the course of the burglary. Further evidence (including photographs) showed that the bottle had been moved within the kitchen at 3 Sedgwick Court between the time detectives initially inspected the scene and the point in time when the crime scene investigators attended.
Neither the prints taken from the cigarette carton or the wine bottle were those of the applicant.
No elimination prints were obtained from the occupants of 3 Sedgwick Court to establish whether or not the fingerprints on the cigarette carton or the wine bottle were theirs.
A DNA swab was also taken by the crime scene investigators from the wine bottle because it appeared the intruder had opened the bottle and drunk from it during the course of the first burglary. Subsequently, a decision was made not to test the swab and it was lost.
Fingerprints were also taken from the outside of the driver’s door of the Honda. Again they were not those of the applicant. No fingerprints of the applicant were found on or in the Honda.
The informant gave evidence that at the time of his arrest the applicant was ‘not slight but not solid either’. The jury also had the opportunity to assess the applicant’s build in the dock.
The informant gave evidence that the applicant was dominantly right handed.
The applicant neither engaged in a record of interview with police nor gave evidence.
The applicant’s submission
There was no dispute that the circumstantial evidence taken as a whole demonstrated that the intruder who entered the two houses was the same person.
The two burglaries occurred in the early morning in close proximity to each other within a quiet residential street. The purpose of both was to obtain car keys in order to steal a car. On the first occasion the intruder demanded car keys and on the second he stole two sets of car keys, attempted to steal the Honda and stole the Barina.
The knife taken in the course of the first burglary was left at the scene of the second burglary in the Honda which had been moved by the intruder only 20 to 25 minutes after the first burglary.
The applicant’s submission was nonetheless that it was reasonably possible that another person was the intruder at both premises and that the applicant entered the Honda after the other person had first stolen the knife and then stolen the keys and then placed the knife on or adjacent to the passenger seat. In turn, the fingerprint on the knife was explicable on the basis that the applicant handled the knife when he sat in the car and left it next to the passenger seat.
Analysis
In R v Baden-Clay,[4] the High Court reaffirmed the principles governing conclusions of criminal guilt based upon circumstantial evidence.
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen’.
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[5]
[4]Ibid.
[5]Ibid 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gaudron JJ) (citations omitted).
In the present case, there was no positive evidence whatsoever of the involvement of a third party offender in either burglary.
The fingerprints upon the cigarette carton and wine bottle were neutral, given the (somewhat surprising) failure to carry out elimination testing of the residents of the house.
Likewise, no DNA testing was undertaken of the swab taken from the wine bottle thereby demonstrating or excluding the presence of another intruder.
Similarly, the fingerprints on the driver’s door of the Honda were neutral given the absence of evidence that it was not touched between the offending and the fingerprinting and the failure to take eliminations prints from the owner. The jury were thus left with the combination of the following elements of evidence:
(a) Evidence of aggravated burglaries by a single intruder within close proximity to each other both in time and place;
(b) Descriptions of the intruder at 3 Sedgwick Court which might be regarded as generally consistent with the applicant’s appearance;
(c) The fingerprint found on the knife taken by the intruder during the burglary at number 3 Sedgwick Court and left in the Honda in the driveway at number 17 Sedgwick Court after the second burglary a relatively short time later.
The applicant submits that the descriptions given by the occupants of 3 Sedgwick Court were not consistent with his appearance, because Bin Zhang described him as not very strongly built when in fact the applicant was of athletic strong build.
We do not accept this submission. Taken as a whole it was open to regard the descriptions of the intruder at 3 Sedgwick Court as generally consistent with the appearance of the applicant. It is not surprising that there was some discrepancy in the elements of the description by one of the residents of the house given that they were confronted in the early hours of the morning with a knife-wielding intruder.
Reference was also made to the fact that when the applicant was arrested six weeks after the offending he had a distinctive hair cut which was not observed on the night in question.
Again we do not accept that the jury was bound to regard this as detracting from the conclusion that the general appearance of the intruder on the night in question was consistent with that of the applicant.
Insofar as the fingerprint on the knife is concerned, it has been accepted at least since the decision of Griffith CJ in Parker v The King[6] that a fingerprint may (depending on the circumstances in which it is found) constitute sufficient evidence of the identity of an offender.
[6](1912) 14 CLR 681.
The relevant circumstances included the compressed timeframe within which the offending occurred and the minimal lapse of time between the offending and the finding of the knife by police. They also included the secluded place and time at which the offending took place. And the fact the intruder observed at 3 Sedgwick Court was of a generally similar appearance to the applicant. The applicant points to the fact that the evidence showed he was right hand dominant as supporting the inference that he touched the knife when a passenger in the Honda. The position in which the knife was found, was however entirely consistent with the applicant employing his left hand to throw or place the knife on the passenger seat after having entered the driver’s seat of the Honda.
When all the circumstances are put together the jury was not obliged to have a reasonable doubt with respect to the identity of the offender. The hypothesis advanced by the applicant rests on no more than mere conjecture.
The applicant’s alternative hypothesis said to be consistent with innocence of the crime charged, bearing in mind that he had no onus, was that the applicant was present in the street at which the burglaries occurred, handled the knife at some point within the narrow window of time between the first robbery and the police arriving at the scene and then decamped from the scene — by what means was not made clear — but that there was another person who was the intruder into the two homes. It was said the jury could not properly discount this hypothesis. Given the circumstances as a whole including the fact that the burglaries occurred in a quiet suburban street in the dead of night and, as we have already noted, that there was no positive evidence of the involvement of another person it was well open to the jury to reject the availability of this alternative hypothesis.
Other matters
For completeness we record that the Court raised with the parties the question whether the fact that the applicant gave no evidence or explanation to police when only he could explain the circumstances in which his thumb print came to be on the knife blade, strengthened the inferences that might otherwise be drawn from the evidence.
On the one hand, the potential for reasoning to this effect might be regarded as supported by longstanding authority.[7]
[7]R v Neilan [1992] 1 VR 57; Weissensteiner v The Queen (1993) 178 CLR 217, 227–8 (Mason CJ, Deane and Dawson JJ); R v Rice [1996] 2 VR 406, 421 (Brooking J with whom Charles JA and Southwell AJA agreed); R v Cengiz [1998] 3 VR 720; RPS v The Queen (2000) 199 CLR 620, 632–3 [27] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); Azzopardi v The Queen (2001) 205 CLR 50, 73–75 [61]–[68] (Gaudron, Gummow, Kirby and Hayne JJ); R v Doherty [2003] 6 VR 393; Butler v The Queen [2011] VSCA 417 [143]–[155] (Ashley JA with whom Ross AJA agreed); Lowe v the Queen [2015] 48 VR 35, 409–412 [210]–[221] (Redlich JA, Robson AJA).
On the other hand, it would result in the Court reasoning on a different basis from the jury who were specifically directed in accordance with s 41(2)(d) of the Jury Directions Act 2015 that the fact that the accused did not give evidence does not strengthen the prosecution case.[8]
[8]Jury Directions Act 2015, s 41(2)(d)(iv).
In the event it has not been necessary to resolve this question for the purpose of resolution of the application.
Conclusion
We would refuse leave to appeal.
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