Oubid v The State of Western Australia
[2013] WASCA 79
•21 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OUBID -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 79
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 8 FEBRUARY 2013
DELIVERED : 21 MARCH 2013
FILE NO/S: CACR 183 of 2012
CACR 214 of 2012
BETWEEN: JAMAL OUBID
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :THE STATE OF WESTERN AUSTRALIA -v- OUBID [2012] WASCSR 125
File No :INS 171 of 2011
Catchwords:
Criminal law - Application for leave to appeal against conviction and sentence - Whether error in failure to leave defence of duress to the jury - Admissibility of video records of interview - Unreasonable verdict - Manifest excess - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 25, s 32
Result:
Applications for leave to appeal dismissed
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
McLURE P: This is an application for leave to appeal against conviction and an application for leave to appeal against sentence.
On 1 August 2012 the appellant was convicted, after a trial in the Supreme Court before Jenkins J, of one count of aggravated armed robbery. The count was in terms that:
On 23 June 2011 at Banksia Grove Jamal Oubid stole from Aaron Stephen Cox, with threats of violence, a Holden Commodore sedan, registration number 1DJA586, the property of Aaron Stephen Cox.
And that Jamal Oubid was armed with a dangerous weapon, namely a machete
And that Jamal Oubid was in company with others.
On 7 August 2012 the appellant was sentenced by Jenkins J to a term of imprisonment of 4 years for that offence. The appellant committed the offence during a 12‑month period of suspension of a 7-month term of imprisonment imposed on 5 April 2011 for the offence of being armed in public. Jenkins J cancelled the suspension of the term of imprisonment and ordered the appellant to serve the 7 months originally imposed. Jenkins J ordered that the sentences be served cumulatively, resulting in a total effective sentence of 4 years 7 months.
Not all the facts of the aggravated armed robbery were in dispute. It was accepted that on 23 June 2011 at around 9.30 pm the appellant, in company with three unidentified co‑offenders, went to the appellant's house in Banksia Grove with the intention of stealing the complainant's car, which had been advertised for sale. One of the co‑offenders was a caucasian and the other two were described by the complainant as Lebanese‑looking.
The complainant took the four offenders for a test drive in his car. The complainant was the driver. The caucasian co‑offender was in the front passenger seat and the three other co‑offenders, including the appellant, were in the back seat. While the complainant's car was stationary, one of the co‑offenders in the back seat produced a machete and held it against the complainant's throat. The person wielding the machete said to the complainant that if he did not get out of the car his head would be cut off. Fearing for his safety, the complainant got out of the car and ran off. The appellant got into the driver's seat and drove the complainant's car away from the scene. The car was never recovered. The State case was that the appellant aided the commission of the offence once the complainant had been threatened and thereafter or alternatively, the offence with which he was charged was a probable consequence of the prosecution of the unlawful purpose of stealing a motor vehicle.
The appellant gave evidence at trial. The defence case, as opened, was as follows. To the appellant's knowledge, one of the appellant's co‑offenders, referred to only as 'Mark', intended to test drive the car and steal it after dropping off the complainant. There was no reference to violence or the machete, of which the appellant had no knowledge. The car was initially driven by the complainant but there was to be an exchange of drivers. The car stopped. The complainant got out and went to the passenger side of the car. The appellant got out the back of the car and into the driver's seat. Mark went from the front passenger seat into the back seat and the complainant got into the front passenger seat. When the complainant was seated, a person in the back seat produced a machete and held it against the complainant's neck. A demand was made for the complainant to get out of the car and a threat was made to chop his head off. The complainant got out of the front passenger seat and ran away. The appellant, sitting in the driver's seat, protested, asking 'What the fuck is going on? What are you guys doing?'. He was surprised by the incident with the machete. The appellant was then threatened with the same weapon and was required to drive the car away, which he did. He was threatened again with the machete some time later and forced to get into his own car.
The complainant's evidence was that he did not agree or intend to permit any of the passengers to drive his car. He was threatened with the machete while he was in the driver's seat of his car which was stationary at a T‑junction. He immediately got out of the car and after running a short distance saw that the appellant was now in the driver's seat. There was laughter in the car as the appellant drove off.
Appeal against conviction
The appellant claims that (1) the trial judge erred by failing to leave the defence of duress to the jury; (2) the court erred in admitting into evidence video recordings of police interviews of the appellant; and (3) the verdict of the jury was, having regard to the evidence, unreasonable or could not be supported.
Duress
The duress defence is in s 32 of the Criminal Code (WA) (the Code) which provides:
(1)A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).
(2)A person does an act or makes an omission under duress if ‑
(a)the person believes ‑
(i)a threat has been made; and
(ii)the threat will be carried out unless an offence is committed; and
(iii)doing the act or making the omission is necessary to prevent the threat from being carried out;
and
(b)the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
(3)Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of ‑
(a)doing an act or making an omission of the kind in fact done or made by the person under duress; or
(b)prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.
The trial judge declined to give a duress direction on the ground that the relevant act, being the appellant driving the stolen car, fell within s 32(3)(a). I agree with that conclusion. However, even if it is arguably wrong, there was no miscarriage of justice in failing to direct on duress.
The trial judge directed the jury on the defence of emergency in s 25 of the Code (ts 301 ‑ 302). That section relevantly provides:
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if ‑
(a)the person believes ‑
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The objective and subjective elements of the duress and emergency defences overlap. In the circumstances of this case, the facts relied on for any duress defence were exactly the same as the facts relied on for the emergency defence. If the jury accepted (or did not reject) the appellant's evidence that he did not have relevant knowledge relating to the threats of violence to render him liable under s 7(c) or s 8 of the Code, then the jury must have positively rejected the appellant's evidence on which his emergency defence was based in order to find the appellant guilty. Any duress defence must also have failed.
Video records of interview
The appellant's first interview with police occurred at 4.18pm on 13 July 2011. The appellant told police he did not know anything about the incident and was not involved in it.
A second interview occurred at about 9.00 pm on 13 July 2011. In the second interview the appellant gave police a version of events broadly consistent with the defence case at trial save that he gave an innocent explanation for attending at the complainant's house to inspect and test drive his car. However, in an affidavit sworn on 23 May 2012 the appellant admitted that he expected the car to be stolen once the test drive was finished and after the complainant got out of the car.
Just prior to the scheduled commencement of the appellant's trial, an urgent application was made to exclude the video records of interview conducted on 13 July 2011. The application was made on the basis that a police officer had made a promise or an inducement to engage in the second interview, the inducement being that the appellant might be granted bail if he undertook the second interview (ts 74).
Detective Senior Constable Hubbard gave evidence on the voir dire as did Detective First Class Constable Hopkins and the appellant. The primary judge, McKechnie J, made factual findings based on his assessment of the evidence. Based on those findings, he concluded that the appellant's condition (tiredness and level of intoxication) and his concern for the welfare of his partner and daughter did not render the interviews involuntary or unfair (ts 122). However, the primary judge concluded that persistence in the questioning rendered part of the first interview unfair and that part was excluded in the exercise of discretion.
As to the second interview, the trial judge rejected the appellant's evidence that Detective Hubbard said he would get bail if he participated in the second interview. The trial judge accepted Detective Hubbard's evidence that there was no inducement, giving detailed reasons for his credibility findings.
The appellant has no reasonable prospect of succeeding in his claim that the primary judge erred in his rulings relating to the admissibility of the video records of interview.
Whether verdict unreasonable
The trial judge made factual findings based on the evidence at trial for the purpose of sentencing the appellant. She made the following findings:
The facts are that on Thursday, 23 June 2011 you were visited at home by some associates. Together you planned to steal a motor vehicle, and for that purpose you phoned the complainant who had advertised his Holden Commodore V8 sedan for sale using the Internet. You and another associate pretended to be prospective purchasers of that vehicle. Your associate arranged to attend the victim's home later that day for the purpose of a test drive.
At about 9.30 pm you went to the complainant's house with three male associates, none of whom have been identified. One of your associates pretended to be the prospective purchaser of the car and you were introduced to the complainant as someone who had mechanical knowledge of motor vehicles. You pretended to look at the car and to appraise its mechanical condition for the purpose of buying it. You and the prospective purchaser were the two offenders who were primarily involved with the complainant. The other two associates who were with you hung back and played little role at the home of the complainant.
At your associate's request, the complainant agreed to take you for a test drive on the condition that he (the complainant) drove the car. You all got into the car. You were in the back seat with two other associates. The complainant drove a short distance before he pulled off the main road and did a U-turn. He stopped at a T-intersection waiting to turn back onto the main road. One of your associates produced a machete and held it against the complainant's throat. The complainant was threatened by that associate that if he did not get out of the car his head would be cut off. In fear for his safety, the complainant got out of the car and ran off.
I do not sentence you on the basis that the robbery had been planned earlier in the day, but I am satisfied that you aided in the commission of the offence, that is, knowing that the threat of violence had been made to the complainant with the weapon you then assisted in the commission of the offence, not only by your presence but by getting out of the back of the vehicle and getting into the driver's seat. You then drove the vehicle away from the scene. The complainant's car has not been recovered. It was advertised for sale for $31,000.
You were identified by the complainant through an identikit procedure. On 13 July 2011 you were arrested. You were interviewed by the police and denied any involvement or knowledge of the offence. Later that evening, you participated in a further interview in which you acknowledged that you were present during the commission of the offence but said that you had thought that your associate was going to buy the car. On 23 May 2012 you swore an affidavit in which you said that you expected that the car would be stolen once the test drive was finished and the complainant got out of the car. You said that you did not anticipate that the complainant would be robbed by your associates. I am satisfied beyond reasonable doubt, consistent with the jury's verdict, that none of these accounts was the truth or in respect of the final account the whole truth. They indicate a lack of remorse for your offending.
The facts as I have found them are essentially based on the evidence of the complainant who I found to be a truthful and reliable witness. On the other hand, I am not prepared to accept your evidence as you have been inconsistent and untruthful in the various accounts that you have given in respect of your involvement in the offence [5] ‑ [10].
The trial judge also found that the appellant voluntarily aided the commission of the robbery [11]. The trial judge's findings are consistent with and flow from the verdict of the jury.
In support of this claim, the appellant relies on what he has identified as inconsistencies between two out of court written statements made by the complainant and his evidence at trial. Reliance was also placed on a witness statement of Leigh Mauger (who it appears was not called as a witness).
The jury was required to consider its verdict on the basis of the evidence adduced at trial. The complainant's two statements (dated 24 June 2011 and 24 August 2011 respectively) were not in evidence at trial. The appellant's counsel cross‑examined the complainant on some inconsistencies. For example the complainant said in evidence that the driver's side window was down but did not say so in his statements. However, a number of differences between the complainant's statements and his evidence at trial were not pursued at trial because they were very damaging to the appellant. In particular, the complainant says in both statements that the appellant was sitting directly behind him during the test drive and that it was the appellant who wielded the machete and made the threats. Otherwise, the variations relied on by the appellant were not material. Based on my reading of the record, the trial judge's credibility findings are unimpeachable.
This ground has no reasonable prospect of succeeding.
Appeal against sentence
There are three grounds of appeal. The appellant contends that (1) the sentencing judge erred in concluding that the complainant was lured to an isolated spot for the purpose of the offence and erred by failing to make a finding as to whether the appellant had been subject to a threat by a co‑offender immediately before driving the car; (2) the sentence for the aggravated armed robbery is manifestly excessive; and (3) the trial judge erred in ordering total cumulation of the sentences.
The sentencing judge made no material factual error or omission. The appellant and his co‑offenders planned to steal the complainant's car in the context of it being taken for a test drive; the robbery took place at night in an area that was undeveloped; and finally, there were four co‑offenders against the defenceless complainant. Further, the trial judge rejected the appellant's evidence that he was threatened immediately before driving the car ([9] ‑ [11]) as she was clearly entitled to do.
The appellant's personal circumstances are detailed at length in the sentencing judge's reasons: [14] ‑ [23]. Having regard to all the relevant sentencing considerations, there is no arguable basis for a claim that the sentence of 4 years' imprisonment for the aggravated armed robbery is manifestly excessive. In summary, the appellant was aged 24, had a long history of cannabis and amphetamine abuse, a troubled background but painted himself as a victim, prior convictions and was assessed by a psychologist as being at a high risk of offending in the future.
The facts of the offence of being armed in public are detailed by the sentencing judge at [25] ‑ [28]. The appellant committed the aggravated armed robbery less than 3 months into the suspension period of 12 months. Total cumulation was appropriate.
None of the grounds of appeal against sentence have a reasonable prospect of succeeding.
Conclusion
Leave to appeal should be refused on all grounds in both the conviction and sentence appeals and the appeals dismissed.
BUSS JA: On 1 August 2012, the appellant was convicted, after a trial in the Supreme Court before Jenkins J and a jury, of one count in an indictment which alleged aggravated armed robbery.
On 7 August 2012, the trial judge sentenced the appellant to 4 years' immediate imprisonment for the offence. The appellant committed the offence during a 12‑month period of suspension of a 7-month term of imprisonment for being armed in public. Her Honour cancelled the suspension and ordered the appellant to serve the 7‑month term. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 4 years 7 months' imprisonment.
The appellant has made application to this court for leave to appeal against conviction and sentence.
The relevant facts and circumstances are set out in the reasons of McLure P. It is unnecessary to repeat them.
Application for leave to appeal against conviction
The appellant relies on three proposed grounds in his application for leave to appeal against conviction.
Ground 1 alleges that the trial judge erred by failing to leave the defence of duress to the jury. Ground 2 alleges that her Honour erred in admitting into evidence video recordings of police interviews with the appellant. Ground 3 alleges that, having regard to the evidence, the verdict of the jury is unreasonable or cannot be supported.
I agree with McLure P that none of the proposed grounds has a reasonable prospect of success. I agree with her Honour's reasons in relation to grounds 1 and 2. I propose to state my own reasons in relation to ground 3.
By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, this court must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be
set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
When an appellate court sets aside a jury's verdict on the ground that, having regard to the evidence, it is unreasonable or cannot be supported, the court frequently expresses its conclusion in terms of a verdict which is unsafe or unsatisfactory. See M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining 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. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
However, this court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
In the present case, the complainant, Aaron Stephen Cox, gave the following evidence‑in‑chief about the alleged aggravated armed robbery:
What happened after that?---They asked if they could take the car for a test drive.
Do you remember who? Was it anyone in particular that asked?---It was the Caucasian guy. He asked if his mechanic could take the car for a test drive because he wanted ‑ ‑ ‑
I see. How did you respond?---I said that they couldn't drive the car but I could take them on a test drive.
All right. Did they - sorry, so you said that and how did things go from there?---They agreed to go with me on a test drive so all four of the guys got into the car with me.
Yes. Where were you sitting in the car?---In the driver's seat.
All right. The guy you have described as the Caucasian, where did he sit?‑‑‑In the passenger seat.
…
Where were the others sitting?---I believe the one identified as the mechanic sat behind me and the other two sat in the other two spots, so behind the passenger and in the middle.
All right. Now, did you take them for a drive?---Yes.
Where did you go?---We pulled out of my estate onto a main road and proceeded to head up the main road.
…
All right, so you were driving along Joondalup Drive?---Yes.
Where did you go?---I drove up to the next cross street at which I turned around. I wanted to do a U-ey to head back.
All right, and did you leave the highway at any point?‑‑‑Yeah, when I pulled off to do a U-turn we pulled off onto a side street.
…
Now, did anything happen while you were on that particular street?‑‑‑When I stopped the car to pull ‑ at the give way sign to pull back out onto the main road, I felt like all of a sudden everyone was watching me and then I sort of turned my head a little bit and someone produced a machete from behind me and told me to - 'Get the fuck out of the car or I'll cut your fucking head off,' were their exact words, at which stage I proceeded to do exactly that. I took off my seatbelt and got out of the car. I then ran a short distance away from the car before I heard two doors open and close at which stage I turned around to see if anyone was chasing after me and I didn't, I saw the guy who was previously identified as the mechanic sitting in the driver's seat and then they proceeded to drive off in my car whilst laughing.
All right. Can you tell me - you said that a machete was produced. How much of the machete were you able to see?‑‑‑I was able to see a fair bit of it just by sort of looking down.
Yes?---Probably about that much.
JENKINS J: 45 centimetres.
MURRAY, MR: Now, you said the machete was produced. What was done with the machete?---It was held against the left side of my throat.
I see. Now, you said that - sorry, you got out of the car and you saw the car driven away and you said something about laughing?---I could hear laughter coming from the inside of the car as it was driving up the street, and at that stage I pulled out my phone and dialled triple-0.
…
All right. Did you give anyone permission to take your car?‑‑‑No, I did not (ts 162 ‑ 164).
In this passage from the complainant's evidence, the complainant refers to the appellant as 'the mechanic'.
The appellant submitted that, having regard to:
(a)'issues concerning the reliability of the evidence of the complainant'; and
(b)the appellant's own evidence that, although it was planned to steal the motor vehicle, he was surprised when the complainant was threatened, and he drove the vehicle after the complainant fled only as a result of a threat made to him by one of the other men in the vehicle,
the jury should have had a reasonable doubt as to the appellant's guilt on the count of aggravated armed robbery, and should have convicted him only of stealing the vehicle.
I agree with McLure P's reasons in relation to the alleged inconsistencies between the complainant's out of court written statements and his evidence at trial.
As to the appellant's own evidence at trial, the jury, by its verdict, was satisfied beyond reasonable doubt that the State had proved each of the elements of the offence of aggravated armed robbery and had negatived beyond reasonable doubt the defence of emergency. The jury's satisfaction beyond reasonable doubt that the State had negatived the defence of emergency necessarily involved the rejection of the appellant's evidence to the effect that he was surprised when the complainant was threatened and that he drove the vehicle after the complainant fled only as a result of a threat made to him by one of the other men in the vehicle.
On my examination of the trial record (in particular, the complainant's evidence and the appellant's evidence) I am satisfied that it was open to the jury to reject the appellant's evidence on which the defence of emergency was based, to accept the complainant's evidence in
all material respects and to be satisfied beyond reasonable doubt of the appellant's guilt on the count of aggravated armed robbery. The jury had the very significant advantage of seeing and hearing the witnesses (especially the appellant and the complainant) give evidence. The evidence at trial was not such as to preclude a jury, acting reasonably, from being satisfied of the appellant's guilt of the offence of aggravated armed robbery. The evidence at trial does not require the conclusion that the jury must necessarily had entertained a doubt about his guilt on that count. The jury's verdict of guilty on the count of aggravated armed robbery was not unreasonable. It was supported by evidence that the jury was entitled to accept.
Ground 3 does not have a reasonable prospect of success.
Application for leave to appeal against sentence
I agree with McLure P, for the reasons she gives, that none of the proposed grounds in the appellant's application for leave to appeal against sentence has a reasonable prospect of success.
Conclusion
None of the proposed grounds of appeal against conviction or sentence has a reasonable prospect of success. Leave to appeal against conviction and sentence must therefore be refused.
MAZZA JA: This is an application for leave to appeal against conviction and an application for leave to appeal against sentence.
I have read in draft the separate reasons of McLure P and Buss JA. I agree that leave to appeal should be refused on all grounds in both appeals and the appeals dismissed. I respectfully agree with McLure P's reasons in respect of grounds 1 and 2 and with Buss JA's reasons in respect of ground 3 of the application for leave to appeal against conviction. Like Buss JA, I respectfully agree with McLure P's reasons in respect of the application for leave to appeal against sentence.
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