McLean, Michael v The Queen

[2011] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McLEAN, Michael v R [2011] NSWCCA 273

Hearing dates:

18 July 2011

Decision date:

16 December 2011

Before:

Allsop P at 1
Simpson J at 1
Buddin J at 1

Decision:

Orders made on 20 July 2011:

1. Appeal against conviction allowed.

2. Conviction quashed.

3. Direct a verdict of acquittal on the sole count on the indictment dated 31 August 2009.

4. The appellant be released from custody forthwith.

5. Reasons to be published in due course.

Catchwords:

CRIMINAL LAW - appeal against conviction - evidence raised reasonable doubt of guilt of appellant - conviction quashed.

Legislation Cited:

Crimes Act 1900 (NSW), s 97(1)
Criminal Appeal Act 1912 (NSW), s 6(1)

Cases Cited:

M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
SKA v The Queen [2011] HCA 13; 83 ALJR 571

Category:

Principal judgment

Parties:

Michael McLean (Appellant)
Regina (Crown)

Representation:

M Johnston (Appellant)
P Ingram SC (Crown)
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/8406

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2009-09-10 00:00:00

Before:

Payne DCJ

File Number(s):

2009/8406

Judgment

1. THE COURT : On 20 July 2011, the Court made orders allowing the appellant's appeal, setting aside his conviction and directing an acquittal. These are the reasons for those orders.

1. The appellant was tried by a jury before a judge of the District Court at Parramatta between 31 August and 10 September 2009, on a single count of robbery whilst in the company of unknown persons contrary to the Crimes Act 1900 (NSW), s 97(1).

1. He was found guilty and was sentenced to imprisonment for seven years and four months with a non-parole period of four years and four months.

1. The ground of the appeal was that the trial miscarried as the verdict was unreasonable and cannot be supported having regard to the evidence under the Criminal Appeal Act 1912 (NSW), s 6(1).

1. There was no issue as to the operative legal principle to apply to dispose of the appeal. Whilst the Court has due regard to both the advantage of the jury in seeing and hearing the evidence and the primacy of the jury verdict, it makes its own independent assessment of the quality and sufficiency of the whole of the evidence at the trial and determines for itself whether there was a reasonable doubt regarding the guilt of the appellant: SKA v The Queen [2011] HCA 13; 83 ALJR 571 at [11]-[14], [20]-[25], [37], [40]-[48] and [78]-[80]; MFA v The Queen [2002] HCA 53; 213 CLR 606; M v The Queen [1994] HCA 63; 181 CLR 487.

1. The relevant facts from and concerning the trial can be shortly stated as follows. At about 3.50 pm on 24 March 2009, Easter Monday afternoon, three men attended Medusa Jewellers on Church Street at Parramatta. One man stood outside the store, while the two other males entered, having been admitted by the owner Mr Nathan Sobbi who released the door lock. Mr Sobbi's evidence was that while examining jewellery one of the two offenders in the shop lifted his shirt to reveal a gun. Mr Sobbi was directed to comply with directions of this man to open the display cabinets. He was then taken to the back of the store, where the safes were opened. This man demanded the CCTV recordings which were given to him. Mr Sobbi was then tied up. Some time later, he set off an alarm and rang the police. His shop had, of course, been robbed.

1. When the police arrived swabs were taken from arm marks on the glass counter.

1. The appellant had the same DNA profile as the DNA recovered from one of the swabs at the scene.

1. There are a number of aspects of the evidence which persuaded us that there was a reasonable doubt about the appellant's guilt.

1. The first aspect was the description of the two men. The man who showed the gun to Mr Sobbi was said to be of "Australian" appearance and to have a tattoo on his neck. The appellant does not have a tattoo on his neck. The second man was said to be wearing an Hawaiian shirt with short sleeves and sunglasses. No mention was made of any tattoos. The appellant has prominent tattoos on his forearms. Mr Sobbi, who is Persian, also described the second man in the shop as "Middle Eastern, could be Lebanese people or Egyptian or Persian people". He described the third man outside similarly. The appellant is not of those ethnic descriptions.

1. Thus, not only was there no identification evidence implicating the appellant at the store in the company of the two other men at the time of the robbery, but also such evidence as there was raised a doubt as to the likelihood of the appellant being one of the men.

1. The DNA evidence was the only evidence linking the accused with the crime. Whilst the appellant's counsel put detailed written submissions on DNA evidence, his argument on appeal ultimately did not challenge the reliability of the scientific evidence. There is no call, therefore, to deal with any of the cases on DNA evidence.

1. It was necessary therefore for the balance of the evidence to be sufficient to leave no reasonable doubt that the DNA was left by the appellant in the shop during the robbery.

1. Three bodies of evidence were relevant to this factual issue: the record of interview of the appellant with the police, the evidence of the cleaning of the glass counter by Mr Sobbi on which the swab was found, and the evidence of who may have entered the shop that day and in days before.

1. The interview was conducted some ten months after the robbery. It is unnecessary to set out the whole of the relevant terms of the interview. Crucial to the case of the prosecution was the obtaining of a clear denial by the appellant that he had ever been in this shop. An edited version of the ERISP and the DVD of the edited version were in evidence. The transcript as a whole is simply an inadequate basis to conclude that there was any clear denial ofhis being in this shop at any time. The shop was inadequately, and to a degree inaccurately, described by the police at the interview and the denial, such as it was, was equivocal.

1. We should add at this point that we raised with counsel at the appeal the possibility that the trial miscarried by inadequate representation because of what could be seen to have been agreed to be excised from the transcript exhibit. This matter did not have to be addressed because we came to the firm view that the evidence as led admitted necessarily of a reasonable doubt.

1. The evidence of Mr Sobbi as to when he cleaned the glass was connected with his evidence of trading on the day in question and of his usual practice. The shop had been closed on the Friday, Saturday and Sunday previously. During the course of a normal trading day he would clean the glass at least four times a day with window cleaner and cloth. On the day in question, he opened at 10.30 am. He would usually clean the cabinets at the beginning of the day. The evidence was not taken from any particular recollection, but from his usual practice.

1. Mr Sobbi gave evidence that there were customers that day, before the robbery. Mr Sobbi could not remember them. The evidence was insufficient to conclude that the door was locked all day. Sometimes he left it open, enabling people to walk in.

1. From this material there was no basis to conclude that the appellant did not visit the shop in the morning or early afternoon of the day in question. Though it is unlikely, given the practice of Mr Sobbi as to cleaning, it was possible that the DNA was left the previous week. Even if that can be discounted there was ample time for the appellant to have visited the shop that day. The ERISP did not, with any clarity at all, eliminate that reasonable possibility.

1. When one combines the above with the disconformities in identification - the lack of tattoo identification and the ethnicity identification, we were persuaded that the doubt about the conviction was reason

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Decision last updated: 16 December 2011