Mohamed v The State of Western Australia
[2018] WASCA 74
•18 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MOHAMED -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 74
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 17 JANUARY 2018
DELIVERED : 17 JANUARY 2018
PUBLISHED : 18 MAY 2018
FILE NO/S: CACR 65 of 2017
BETWEEN: NIMO HASSAN MOHAMED
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MCGRATH J
File Number : INS 80 of 2016
Catchwords:
Criminal law - Appeal against conviction - Aggravated armed robbery - Identification evidence - Circumstantial evidence - Whether verdict of guilty unreasonable or not supported by evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code (WA), s 392
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms K J Farley SC & Ms N Sinton |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Legal Aid Western Australia |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in judgment(s):
Wells v The State of Western Australia [2017] WASCA 27.
JUDGMENT OF THE COURT:
This appeal against conviction was heard on 17 January 2018. At the conclusion of the hearing, the court made the following orders:
1.Leave to appeal on ground 1 is refused.
2.The appeal is dismissed.
The court said that it would publish its reasons later. These are our reasons for making those orders.
Background
On 13 December 2016, the appellant was convicted after trial of one count of stealing an iPhone the property of Mr Naumce Avramovski, contrary to s 378 of the Criminal Code (WA) (the Code) (count 1), and one count of aggravated armed robbery, contrary to s 392 of the Code (count 2). As to count 2, the charge in the indictment was as follows:
(2)[On 8 October 2015 at Subiaco the appellant] stole from Vanessa Kaye Burgess, with threats of violence, a gold chain, a purse and $120 in money, the property of Vanessa Kaye Burgess
And that [the appellant] pretended to be armed with an offensive instrument, namely a syringe
And that [the appellant] threatened to kill Vanessa Kaye Burgess.
The appeal is only in respect of the conviction for count 2.[1]
[1] Appeal ts 2.
Originally, the appellant relied on three grounds of appeal. At the hearing, senior counsel for the appellant abandoned grounds 2 and 3.[2] Ground 1 alleges that the appellant's conviction on count 2 was unreasonable and unsupported by the evidence: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The appellant no longer makes any complaint about the adequacy of the trial judge's directions in his Honour’s summing up, nor is it suggested that his Honour made any error of law in his directions to the jury.[3]
[2] Appeal ts 3 - 4.
[3] Appeal ts 4.
The State's case at trial
In a nutshell, the State's case was that on the morning of 8 October 2015, the appellant was in Subiaco. It was alleged that she stole an Apple iPhone from a taxi driver, Mr Naumce Avramovski, (count 1), and then, in a car park at Subiaco Oval a short time later, she ripped a gold chain from the neck of Ms Vanessa Kaye Burgess. She then told Ms Burgess that she had a syringe in her pocket 'full of Hep C' and demanded Ms Burgess' bag and her money, and told her that she would kill her. Ms Burgess handed the appellant her bag. The appellant removed Ms Burgess' purse, which contained cash and various other items. The appellant kept the purse and its contents, but returned the bag to Ms Burgess. The appellant then picked up the chain which had fallen to the ground and walked towards Subiaco (count 2).
The defence case at trial
The appellant elected not to give or call evidence in her defence. A concession was made on the appellant's behalf that she was the person in the taxi who had allegedly stolen Mr Avramovski's iPhone.[4] With respect to count 1, it was contended that the appellant mistakenly picked up Mr Avramovski's iPhone as she left the taxi, believing it to be her own mobile telephone. With respect to count 2, it was contended, on her behalf, that she was not the person who had robbed Ms Burgess.
[4] ts 25, 68.
Count 2 - the issue in dispute
In relation to count 2, there was no issue that Ms Burgess had been robbed, as she alleged. The only issue for the jury to determine was whether the State had proved beyond reasonable doubt that the appellant was the offender. As will be seen, Ms Burgess was unable to identify the appellant from a digiboard, which she was shown by police. The State's case as to identity on count 2 was circumstantial in nature.
The evidence
Mr Avramovski testified that, at just after 10.00 am on 8 October 2015, he was at the Subiaco Square taxi rank near the Subiaco train station, talking to another taxi driver.[5] He said that he was approached by '[a] black female' who asked to be taken to Perth Airport.[6] He asked for 'money up front', telling her that he was not going anywhere unless she showed him some money.[7] According to Mr Avramovski the woman replied, 'You better take me there or you're going to get a smack in the mouth'.[8] Mr Avramovski then stopped the taxi and told her to get out of the car.[9] Mr Avramovski testified that the woman then opened the front door, took off her seatbelt, grabbed his black iPhone, which was sitting in the middle of the console, and ran off.[10]
[5] ts 27.
[6] ts 28.
[7] ts 28.
[8] ts 28.
[9] ts 28.
[10] ts 29.
Mr Avramovski said that the woman ran across Subiaco Square, in the direction of Subiaco Oval. The woman left behind in the taxi a white mobile telephone and two jackets.[11]
[11] ts 29 ‑ 30.
Shortly after this incident, Mr Avramovski stopped a police car that was turning into Subiaco Square and reported the theft of his property.[12]
[12] ts 29.
Mr Avramovski's taxi is fitted with a CCTV system. The incident was recorded on that system. The relevant portion of the recording was played to the jury and tendered in evidence as exhibit P1.[13]
[13] ts 31.
Mr Avramovski described the offender as being 'skinny, probably about 160 cm tall' and between 18 and 20 years of age.[14] He recalled that at the time she was wearing a beanie.
[14] ts 28.
We have viewed exhibit P1. Essentially, it confirms Mr Avramovski's evidence. The woman, who it was conceded was the appellant, is heard to ask the taxi driver to be taken to the 'domestic airport'. Mr Avramovski repeatedly asks the appellant if she has 'any money'. The appellant responds that she has money, but at no point does she show that she has the capacity to pay the fare. The appellant asks if Mr Avramovski has a charger for her phone. He answers in the negative.
As the conversation proceeds, the appellant becomes agitated, repeatedly urging the taxi driver to 'Keep driving, bro'. At one point, the appellant yells, 'Keep driving first. Take me out of here first; take me out of here first. I promise you I'm a pay you, I promise you.' A short time later, the appellant shouts, 'I swear to God, man, I'm a jump out of your taxi and I'm a fucking punch you and I'm a jump out of your taxi. I don't wanna punch you.' At this point, Mr Avramovski threatens to report the appellant to the police, to which the appellant replied, 'What do you wanna get the police for? You think I'm scared of going to gaol, bro?' The appellant then gets out of the taxi. As she walks away from the taxi, she can be seen to be carrying a bright pink jacket.[15]
[15] Exhibit P1 at 10:18:24.740, camera 4.
While the CCTV camera clearly captures images of Mr Avramovski and the appellant as they are seated in the car, it does not show the console area. Based on exhibit P1, the appellant appears to be a young woman of African descent. It is not possible to estimate her height, but she appears shorter and much thinner than Mr Avramovski. She is wearing a tri‑coloured beanie, which covers her hair. She is also wearing a grey‑coloured zip‑up long‑sleeved Adidas brand top. As she walks away from the taxi it appears that she is also wearing jeans.
On 9 October 2015, Mr Avramovski took part in a digiboard identification procedure,[16] during which he chose a photograph of the appellant as the person who had been in his taxi and who had allegedly stolen his iPhone.[17]
[16] Exhibit P2.
[17] ts 31 ‑ 32.
Ms Burgess testified that, at about 10.20 am on 8 October 2015, she left her workplace and, after buying lunch, headed towards one of the carparks at Subiaco Oval.[18] At about 10.35 am she noticed a girl walking towards her from what she described as 'the Subiaco end'.[19] The girl approached Ms Burgess and told her that she was lost. After offering to help her find her way, the girl ripped from Ms Burgess' neck a 24‑carat gold chain she was wearing.[20] The girl then told Ms Burgess that she had a syringe in her pocket 'full of Hep C' and that she (Ms Burgess) needed to do what she was told.[21] The girl then asked Ms Burgess for her bag and her money. She accompanied this demand with a threat to kill Ms Burgess.[22] As a result, Ms Burgess handed the girl her bag.[23]
[18] ts 35.
[19] ts 36.
[20] ts 36 ‑ 37.
[21] ts 38.
[22] ts 38.
[23] ts 38.
The girl rummaged through the bag and removed Ms Burgess' purse.[24] The girl returned the bag, but retained the purse. In the purse was about $120 in cash, Ms Burgess' driver's licence and various cards.[25] The girl then picked up the gold chain which, at some point, had fallen to the ground, and walked towards Subiaco.[26]
[24] ts 39.
[25] ts 39.
[26] ts 39.
Later, on 8 October 2015, Ms Burgess participated in a digiboard procedure which was recorded on video.[27] In it, she identified a person who was not the appellant.[28]
[27] Exhibit P3.
[28] Ms Burgess identified photograph 11 as being of the offender. Photograph 11 depicted someone other than the appellant. The appellant's photograph was number 9.
Ms Burgess described the offender as 'African … [a]nd really dark'.[29] She estimated her to be about 5 foot 4 inches tall. She described her hair as 'really dark black', slicked back and slightly shaven above her ears.[30] She did not see the offender's back and was unable to see how long her hair was.[31] Ms Burgess recalled that the offender wore 'a bright pink fluoro, like, tracksuit top' which was zipped‑up and long‑sleeved.[32]
[29] ts 37.
[30] ts 37.
[31] ts 38.
[32] ts 38.
In cross‑examination, she estimated the offender to be in her twenties and confirmed that she was of African, as opposed to Aboriginal, descent.[33]
[33] ts 43.
As to the jacket the offender was wearing, she recalled that it was 'smooth on the outside'.[34] She said that she told the police at the time that, although she could not be 100% sure, she thought that the jacket she was wearing had some black in the zip area. Otherwise, she recalled the jacket as being 'completely pink'.[35]
[34] ts 44.
[35] ts 44.
First Class Constable Caitlin Caddy arrived at Subiaco Square at about 10.33 am on 8 October 2015. There, she spoke to Mr Avramovski, who was at the taxi.[36] Mr Avramovski gave Constable Caddy a white ZTE brand mobile telephone. Constable Caddy was able to access a Facebook application. The login details were in the appellant's name.[37]
[36] ts 47.
[37] ts 48.
Detective Senior Constable Normie Giocas testified that on 9 October 2015, he apprehended the appellant at the Dog Swamp Shopping Centre. At the time, the appellant was wearing what Detective Giocas described as a pink and black jacket.[38] Photographs of the item were tendered as exhibit P5. The photographs show a Nike, long‑sleeved, zip‑up 'hoodie'‑type jacket. The sleeves and body of the jacket are bright pink in colour. The shoulder areas and sleeves, up to about bicep level, are black. A photograph was also taken of the appellant.[39] The photograph shows that the appellant's hair is shaved around the ears.
[38] ts 50.
[39] Exhibit P6.
In cross‑examination, Detective Giocas was referred to an incident report in which the appellant's height was recorded. The document recorded the height of the appellant variously, but mostly as 153 cm.[40]
[40] ts 53.
In cross‑examination, Detective Giocas confirmed that Ms Burgess' handbag was forensically examined for DNA and fingerprints. No matches to the appellant were found.[41]
[41] ts 53 ‑ 54.
Legal principles
The relevant legal principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence and cases that turn upon circumstantial evidence were recently summarised by this court in Wells v The State of Western Australia,[42] as follows:
[42] Wells v The State of Western Australia [2017] WASCA 27 [13] ‑ [14].
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in The Queen v Baden‑Clay as follows:
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)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 an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. (citations omitted)
Disposition
It was submitted on behalf of the appellant that it was not open for the jury to be satisfied beyond reasonable doubt that the appellant was the person who robbed Ms Burgess. The submissions focussed on several alleged shortcomings in the evidence of Ms Burgess, being:
1.Her description of the jacket or jumper the offender was wearing did not match the item the appellant was wearing when she was apprehended by Detective Giocas. It will be recalled that Ms Burgess testified that the offender was wearing a bright pink jacket. She made no mention of any black colouring in the garment except possibly in the zip area. The jacket the appellant was wearing when she was apprehended by Detective Giocas was predominantly bright pink, but with areas of black on the shoulder and the sleeves.
2.Ms Burgess did not identify the appellant from a digiboard shown to her within a short time of the commission of the offence.
In our opinion, it was well open to the jury to be satisfied that the only reasonable or rational inference was that the appellant was the person who robbed Ms Burgess.
The appellant is a young, slightly‑built woman of African descent. It is accepted that she was the woman who entered Mr Avramovski's taxi at the Subiaco Square taxi rank. It is clear from the CCTV footage that she behaved in an angry and aggressive manner towards Mr Avramovski and threatened to punch him. When she left the taxi, she was carrying (although not wearing) a bright pink item of clothing.
A short time later, perhaps 15 minutes or so, a young woman of African descent aggressively confronted Ms Burgess in a car park at Subiaco Oval. Mr Avramovski gave evidence that the appellant headed towards Subiaco Oval when she left his taxi. Ms Burgess' assailant made threats of violence towards her, as had the appellant to Mr Avramovski. Ms Burgess' general description of her attacker is consistent with the appellant's appearance as shown in the CCTV recording and Mr Avramovski's testimony.
Ms Burgess' unchallenged evidence was that her attacker was wearing a bright pink jacket, an item of clothing consistent with what the appellant was carrying as she left the taxi. It is also consistent with the jacket she was wearing when she was apprehended by Detective Giocas on 9 October 2015.
Ms Burgess described her attacker as having very black hair, which was shaved at the sides, above her ears. The photograph of the appellant taken on 9 October 2015 reveals that the appellant has black hair, which is shaved at the sides.
The alternative inference sought to be drawn by the appellant is that a different woman of about the same age and with many of the same features who happened to also be in the area near Subiaco Oval committed the robbery upon Ms Burgess. We agree with the respondent's submission that to draw this inference requires a highly improbable coincidence of time, space and circumstances, including the offender's age, gender, ethnicity, clothing, hairstyle and threatening language. In our opinion, it was well open to the jury to reject the alternative inference posited by the appellant as fanciful, and to find that the only reasonable inference to be drawn from the whole of the evidence was that the appellant was the person who robbed Ms Burgess.
The discrepancies and inconsistencies relied upon by the appellant do not, to our minds, give rise to any reasonable doubt as to the appellant's guilt on count 2. The fact that Ms Burgess thought that the jacket being worn by the offender was completely pink in colour is within the scope of expected and acceptable variations in an eye witness' account, particularly when that witness is, as Ms Burgess was, under some stress.
The fact that Ms Burgess did not identify the appellant in a digiboard identification does not, to our minds, give rise to a reasonable doubt as to the appellant's guilt. As we have indicated, Ms Burgess found the incident stressful. In the course of the procedure, Ms Burgess indicated that it would have been easier if the photographs showed the subject's body as well as her head. She said she was not 100% certain that the person she nominated was the offender.
Based on our own assessment of the sufficiency and quality of the whole of the evidence that was adduced at trial, we have reached the conclusion that it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was the person who committed count 2. It cannot be reasonably said that the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. The verdict of guilty was supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. It has not been demonstrated that the verdict was unreasonable or not supported by the evidence. It would not be dangerous to permit the verdict to stand. We have arrived at those conclusions after paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the consideration that the jury has had the benefit of having seen and heard the witnesses.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA17 MAY 2018
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