R v Donaldson
[2015] QCA 143
•14 August 2015
SUPREME COURT OF QUEENSLAND
CITATION:
R v Donaldson [2015] QCA 143
PARTIES:
R
v
DONALDSON, Jabin Stuart
(appellant)FILE NO/S:
CA No 285 of 2014
DC No 904 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane, Unreported – 3 October 2014DELIVERED ON:
14 August 2015
DELIVERED AT:
Brisbane
HEARING DATE:
11 May 2015
JUDGES:
Holmes and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where a jury convicted the appellant of armed robbery – where the only issue in contention at the trial was whether the appellant was the offender – where the appellant gave evidence denying having committed the offence – where the appellant called witnesses who gave evidence in relation to the appellant’s alibi – whether the jury’s verdict was unreasonable in light of the evidence
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, citedCOUNSEL:
A R Lynch for the appellant
B J Power for the respondentSOLICITORS:
Fisher Dore for the appellant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES JA: I agree with the reasons of Boddice J and the order he proposes.
PHILIPPIDES JA: I agree for the reasons stated by Boddice J that the appeal should be dismissed.
BODDICE J: On 3 October 2014, a jury convicted the appellant of armed robbery, committed on 3 June 2012. On 7 October 2014, the appellant was sentenced to six years imprisonment. Allowing for 22 days served in pre-sentence custody, which was declared as time served, his parole eligibility date was fixed at 15 September 2017.
By notice filed 23 October 2014, the appellant appealed his conviction, and sought leave to appeal his sentence. The sole ground for the appeal against the conviction is that the verdict was unreasonable. The appellant abandoned the application for leave to appeal his sentence at the hearing of the appeal.
Trial
The offence occurred on a Sunday morning in Fortitude Valley. A male, wearing a hooded jacket and mask, drove into the car park of the Royal George Hotel (“the Hotel”) in a red motor vehicle without number plates. That male entered the hotel armed with a knife. He approached the female complainant from behind, and demanded she put the takings from the previous night into a bag. The male then decamped from the hotel. In total, $63,900 was taken from the hotel.
Much of the prosecution case was based on admissions made by the defendant. Relevantly, those admissions included that: the robbery had occurred on the morning of 3 June 2012; that $63,900 in various notes was stolen; that, at the date of the robbery, the appellant’s girlfriend owned a red Suzuki Swift hatchback, which the appellant sometimes drove; that, following the robbery, the appellant and some associates spent money on hire cars, hotels and flights; that, after the robbery, the appellant spent money at the casino and at a strip club; that, after the robbery, various sums were deposited into bank accounts; and on 10 June 2012, the appellant and his girlfriend were found in possession of sums of money.
Whilst the prosecution called a number of witnesses at the trial, the only issue in contention at the trial was whether the appellant was the offender. The prosecution contended he was, based on circumstantial evidence and two confessions allegedly made by the appellant to employees of a strip club two days after the robbery.
The appellant denied he was the offender. He gave evidence he was not at the Hotel on 3 June 2012. He said he was at his mother’s house at the time of the robbery. Several witnesses were called to support that alibi. Those witnesses were his mother, Christine Falkner, stepfather, Rodrick Falkner, son, Lincoln Donaldson, ex-partner, Shannon Clendon, and a friend, Warren Clendon.
Evidence
The female complainant, employed at the Hotel as a senior bar attendant, arrived at the hotel early on Sunday 3 June 2012. At around 8 am, she sat down to commence counting the previous night’s takings. She may have been 10 or 15 minutes behind schedule that morning. Whilst she was counting the money she was approached by a male in a skull mask with a knife.
The complainant believed the male tapped her on the shoulder. She then saw a knife. She asked the male not to hurt her. He replied he was not going to, and she should just put the money in the bag. She described the male as of average height; of medium build, although possibly a little overweight; and with white skin. The male said only a few words, from which she believed he had a New Zealand accent. She admitted she may be confused about that belief.
The complainant unzipped the bag the male put in front of her, put the money into that bag, zipped up the bag and passed it to the male. The bag was either a black or navy blue sports bag like “a hiking sort of backpack with two zips on top”.[1] After the male left the Hotel, the complainant waited a short while and then went to the café next door for help. Police arrived shortly thereafter.
[1]AB 26/6-8.
Kylie Norton, the manager of the café next door to the Hotel, went into the Hotel that morning looking for tablecloths. She spoke to the complainant, who was “pretty busy” with bags of money on the floor.[2] She did not recall seeing anybody else around at that time. However, while searching for the tablecloths, she was interrupted by a fellow employee who told her there had been a robbery. She found the complainant in the café next door. The complainant “was shaken, white as a ghost, and terrified.”[3] Daniel Aring, also employed in the café next door, started work at 8 am. He said the complainant appeared extremely shaken and pale when she came into the café that morning after the robbery.
[2]AB 32/14-15.
[3]AB 34/37.
Mr Pullos, the owner of the Hotel, said the hotel had a system for counting the takings from the previous evening. On the following morning, an employee would open the safe, into which the “sweep” bags containing money taken from various cash registers during the night had been placed. The employee would count each bag and place the proceeds into a special banking bag for collection by Chubb Security. The process was time-consuming. It was generally done at 8 am each day. The money was counted in the cellar area, beneath a camera.
Leslie Pullos said Shannon Clendon had worked for the hotel for a number of years as a casual bartender. She primarily worked on Sundays. On the day of the robbery, she was rostered on in the public bar. Her shift would have been from 10 am until 6 pm. Shannon Clendon had never been given the position of counting the money. Her shifts invariably started at 10 am and she was habitually late. He did not see Shannon Clendon at work on the day of the robbery. By the time he arrived at the hotel, police were already at the hotel.
Haley Marsh was in a relationship with the appellant in June 2012. She described the appellant as of “stocky build” and somewhere between 165 and 170 cm in height. He had short hair and tattoos on each arm and on his chest. The appellant would stay at her place most nights of the week. He usually brought his change of clothes in a black backpack. Ms Marsh was a cousin of Shannon Clendon, who had also been in a relationship with the appellant. There was one child from that relationship.
Ms Marsh drove a manual red Suzuki Swift in June 2012. She had acquired that car around Christmas 2011. She usually kept the keys in her bag. She originally had two keys to her motor vehicle. One had gone missing shortly after she purchased the vehicle. She did not know what had happened to that key. The appellant would drive her car from time to time.
Ms Marsh said the appellant was at her house on the morning of Sunday, 3 June 2012. She remembered waking up at around 6 am. She went outside and had breakfast with her brother. At that time, the appellant was still in bed. When she returned to the bedroom, after 7 am and close to 8 am, the appellant was not there.[4] She was not aware he had left the residence. She was not aware of any vehicle movement in the street. She texted the appellant. He replied he had gone to North Lakes to have breakfast.[5]
[4]AB 67/3.
[5]AB 55/35.
Ms Marsh said she next saw the appellant an hour or two later when he returned to the house.[6] The appellant asked if she wanted to go out to lunch. They travelled in her car to Garden City for lunch. They stayed at the Stamford Hotel in the city that night and went out to dinner. She thought the appellant paid for dinner in cash.[7] It was not unusual for the appellant and her to stay in hotels in the city. The use of cash was also an ordinary mundane aspect of his life,[8] as the appellant preferred to use cash rather than credit cards to pay for items. The appellant dropped her off in her car when she went to work on 4 June 2012.
[6]AB 55/45.
[7]AB 58/5.
[8]AB 69/38-39.
Ms Marsh said on 6 June 2012 she drove her red Suzuki Swift to Petrie Station and parked at around 6 or 6.30 am that day. When she returned at around 4 or 4.30 pm that day, the vehicle had “new mags” and the seat covers were different.[9] She also noticed some stickers. She received a text message from the appellant when she hopped off the train which said “Do you like the surprise?”[10]
[9]AB 59/2-5.
[10]AB 60/24.
On 7 June 2012, Ms Marsh caught a flight to Sydney. The appellant had asked her to go to Sydney with him. The appellant and Warren Clendon met her at Sydney airport, and they travelled to a hotel in Sydney. The appellant paid for the hotel and meals.
Whilst in Sydney, Ms Marsh opened a bank account at St George Bank. The appellant asked her to open two bank accounts. He gave her about $4,900 to place in those accounts. The appellant discussed getting foreign money out.[11] Ms Marsh agreed she told the appellant she was pregnant when they arrived in Sydney. That was the day before the appellant gave her $4,900 in cash to put into an account. She could not put it into her regular account because that bank was not open.[12] The only bank that was open on that day was St George Bank.
[11]AB 63/21.
[12]AB 70/39-41.
Whilst in Sydney, Ms Marsh and the appellant booked flights to New Zealand. They did not make that flight as they arrived too late. The appellant did not seem worried about the waste of money.[13] They stayed in the hotel again that night. The appellant then wanted to drive to Melbourne. They arrived in Melbourne and stayed in a hotel.[14] The following day, they booked another flight to New Zealand. On this occasion, they were stopped by customs officials, and spoken to by the Australian Federal Police. Her telephone and a quantity of cash was seized, together with a ticket for the airport car park where she had parked her red Suzuki Swift when she left Brisbane.[15]
[13]AB 64/15-16.
[14]AB 65/1-2.
[15]AB 66/1.
Candice Cross, a stripper at Players Universal Lounge, was working an 8 pm to 3 am shift on 5 June 2012. She used the name “Holly” at work. She recalled a customer that evening, who she described as a young man, 30 to 35 years old, of average build, brown hair and Caucasian complexion. There was another man with him who was darker-skinned and had a New Zealand Maori appearance. That other man was “quite tall, [with] dark brown hair”,[16] and older. Ms Cross identified the appellant as the younger man.
[16]AB 74/4-5.
Ms Cross spoke to the appellant at length, both inside the club and when they went for a lap dance in the back room. Ms Cross said they discussed prices. The man asked her the best option and she pointed out a 30 minute increment. The man purchased that option. The lap dance was paid for before she went to the room. Either the manager or hostess took the money. She believed it was quite soon after her shift had begun that night.
Ms Cross sat the man down before she started the lap dance and explained the rules. She then started talking to him. She thinks the appellant told her to call him Jay. The appellant asked her whether there were any cameras or recording devices in the room. There was a discussion about a long-term girlfriend and mention of another girlfriend as maybe “like an on-off”.[17] He told he had a son to that long-term girlfriend who was from New Zealand. He did not tell her the girlfriend’s name, but did tell her his son’s name when he showed her a tattoo on his arm. He told her the girlfriend was the mother of his child. He had not worked for a few months, but when he did work he was an asbestos removalist.[18] He told her he was from New Zealand. They spoke for some time about New Zealand.
[17]AB 78/45-46.
[18]AB 76/25-26.
During the conversation, the appellant told her he wanted to tell her a secret. Ms Cross outlined the conversation:
“I didn’t know what he was going to tell me, and then he said to me did you watch the news last night? And I said no, I hadn’t, and why was that? He said, oh, did you hear about the robbery at RGs? I said no, I didn’t. I was, like, oh, whereabouts is RGs? Is that the place at Toowong? He said no, it’s in Fortitude Valley. … I said, oh, is that the place across from the Bank nightclub, and he said yes. … He went on to tell me that he had robbed that place … the previous night… He gave me a few details. … he told me that he held a lady at knifepoint. I do believe I recall - I think I asked how did he - how did he get there, to the woman. I think he said there - it was a back door open, something, and he had slipped in there and found her, and then proceeded to rob her.[19]
[19]AB 76/38-77/9.
Ms Cross said the appellant said he got something around $16,000 and had been to the casino the night after the robbery, where he had spent maybe $2,000 playing roulette. He owed somebody $13,000 and he had paid them back. She believes he told her the robbery involved around $60,000 all up.
Ms Cross agreed the appellant appeared quite intoxicated but seemed calm. He was responsive when she spoke to him. Ms Cross agreed she had had a few drinks with the appellant that night. It was the cocktail of the week. They spoke for about 30 minutes to an hour. Towards the end the hostess came in and asked if they would like to extend “our time stay”. The appellant said he needed to get some more money. He said he had to “go see his bank manager, which was in the back of his car”.[20] The man did return after a period of time, but took another girl into the private lap dance room.
[20]AB 77/42.
Ms Cross agreed it was possible the appellant took his telephone out at one stage and that another worker yelled at him about putting his phone away. Clients could not use their telephone in the lap dance rooms. She denied he mentioned he had some footage of his girlfriend on his telephone. She also denied he showed her some footage of a news broadcast that had been filmed off a television set, which was a news report about the robbery. He definitely discussed the robbery with her, and discussed obtaining cash from the robbery. Ms Cross went onto the internet the next day and checked whether or not there had been a robbery at the RG.[21] It just said it had happened and there was a male involved who had held a woman at knifepoint. She ruled out completely the possibility she was shown any sort of video footage by the appellant that night.
[21]AB 81/31.
Zoe Hokin, another stripper at Players Universal Lounge, recalled having a conversation with a male in his 30s on the night of 5 June 2012. She described the male as of rough appearance. He looked like “a Maori, stubble on his face.”[22] He was wearing a zip-up hoodie and jeans. He was with a second male who she described as tall, with scruffy longish grey hair. She identified the appellant as the first man. She had never seen him before that night. Ms Cross, who had just come out from a private dance with him, told her it was worth going over and talking to these men because “they had money on them”.[23] She started to talk to the appellant at about 9 pm. She would have been with him for a couple of hours.
[22]AB 83/41.
[23]AB 84/30.
Ms Hokin said they chatted about casual stuff, mostly talking about New Zealand. She was also from New Zealand. Ms Hokin was drinking vodka, Red Bull and shots. The appellant bought her five or six shots that night. She denied feeling tipsy when she later went with the appellant into the private room for a lap dance. He booked for an hour and paid in cash. He took out a roll of $50 notes.[24] He had plenty more cash after he had paid for the lap dance.
[24]AB 85/26-34.
Ms Hokin explained the rules before starting the lap dance. After she had stripped to her underwear, the appellant told her that was enough. He said he would rather just talk. At first they spoke about New Zealand but “then after that he sort of told me that he trusted me enough, and what he was about to tell me was, you know, he felt that he could trust me in telling me, and he then told me that he did an armed robbery at the RG in the Valley”.[25] The appellant told her he had taken $60,000 with a knife. It was done in a red hatchback car. The appellant said that on the newsfeed they were saying the hatchback was orange, but it was red. He told her the make of the car but Ms Hokin could not remember the make when giving evidence.[26] The car was his girlfriend’s car. The appellant said he was in and out “really fast”. It took him about 15 seconds.[27]
[25]AB 86/46-87/2.
[26]AB 87/10.
[27]AB 87/20-21.
Ms Hokin recalled the appellant kept saying he had to go and see his bank manager. When she asked what that was about, he said it was just a bag of money in a boot of a car down the road.[28] The appellant extended the lap dance. He also bought another round of drinks, but became concerned about his stepfather leaving, so ended the dance and walked out. He gave her an extra $150 cash.[29] She described the stepfather as being older, tall and of skinny build. Ms Hokin said when she went for a toilet break during the dance she saw Ms Cross, who asked her if she had heard the same story. They spoke about how crazy it was but she did not talk to anybody else about the story that night.
[28]AB 87/34-35.
[29]AB 88/5.
Ms Hokin did not remember the appellant taking his phone out and showing her any pictures. He would not have been allowed to get his phone out in the club. She said the appellant told her the details of the robbery. He did not show the details to her on a phone.[30] She denied the appellant told her he had his wallet in the car. He said he had a bag of cash that he had stolen in the boot of the car.[31]
[30]AB 91/39-40.
[31]AB 92/5-6.
Ashley Durre, the investigating police officer, attended the scene of the robbery at about 8:12 am on 3 June 2012. The first response officers were already at the scene. He spoke with the duty manager, Thuwaini Al-Khusaibi, who was also known as Tony, and recorded his statement in his official police notebook. The duty manager adopted that statement. It was as follows:[32]
“I am a 29 year old single male and I reside at an address known to police. I have been employed at the Royal George Hotel, 327 Brunswick Street, Fortitude Valley, since 2006. I left for a short time in 2011. Since February 2012, [I] have been employed as a bartender and venue manager roles. On Sunday the 3rd of June 2012, I was rostered to work from 8 am to 4 pm. When I arrived around 8 am, I parked my red Smart ForTwo sedan OMN/69 in the rear car park of the Royal George Hotel. The car park is at the rear of the premises off Ann Street.
As I drove into the car park, I saw a number of other cars in the car park. I drove to the furthest end of the car park and reversed into the park on the left-hand side of the car park. As I was sitting in my vehicle, I observed a male person run out of the back door area of the Royal George Hotel. I observed that he was 183 centimetres tall, solid build. He was wearing a grey hoodie pulled over his head, brown/black mask over his face, black tracksuit pants. He was holding a black backpack in his left hand.
I saw this male run to blood – a red hatchback, maybe a Toyota or a Suzuki, maybe a 2008 to 2012 model. I think he got into the passenger’s side of the vehicle but I’m not sure. The vehicle was parked front in. It reversed out into the car park, and I saw that it had no registration plate. I saw the vehicle drive out to the driveway and turn right into Ann Street. I started to drive after it, but then thought of my staff and didn’t follow it. I parked my car and ran inside looking for Kari.
I spoke to Vince, the maintenance man, and Kelly, who were in Vince’s room at the rear of the building. I spoke to them, but they didn’t see anything. A short time later, Kelly came back to RG Hotel with Kari, who had run down to Fatboys. Police arrived at the hotel at that time. I then accessed the CCTV footage for police. I was able to burn a CD containing the offender at the Royal George Hotel. I saw that the time was 8:03 am.”
[32]AB 97/15-45.
Mr Durre agreed police released details of the robbery to the media. At no stage was the amount of money stolen released in the media.[33] The media release dated 3 June 2012 was in the following terms:[34]
“Police are investigating the armed robbery of a hotel on Brunswick Street earlier today. Initial investigations suggest shortly after 8 this morning, a man has entered at the car park at the rear of the hotel in a red/copper Suzuki Swift armed with a knife. The man gained entry into an office area, where he approached a staff member and demanding money. On receiving a large sum of cash, he has then fled back to the car park, and was last seen driving along Ann Street towards the city.
The man as described as being of Caucasian appearance, 183 cm, of solid build, and at the time of the incident was wearing a grey hoodie top, black tracksuit pants, and black sneakers with stripes.”
A story was published on the Channel 9 news that evening. Mr Durre agreed the Channel 9 footage contained a report that the amount of money was more than $60,000.[35]
[33]AB 100/25.
[34]AB 100/41-101/3.
[35]AB 126/5.
Mr Durre subsequently obtained footage from outside the Hotel and through various CCTV sites. It revealed a red vehicle first drove into the hotel area and sat there for about 10 minutes. Mr Durre agreed he did not know whose car was the red car depicted in the car park of the Hotel on the morning of 3 June 2102. He could not say a red car, depicted in the CCTV footage travelling along Ann Street in the Central Business District, was the same car as depicted in the Hotel car park. There was, however, a temporal connection between its presence in the car park and travelling along that road. Mr Durre also agreed he could not say it was the same vehicle depicted in CCTV travelling on College Road near the Normanby Five Ways, along the Inner City Bypass, or later travelling along Enoggera Road in a northern direction.
Mr Durre said initially police did not have any suspects. The first lead came on 6 June 2012, when he received a telephone call from the owner of the Players Universal Lounge. Officers spoke to two people and obtained CCTV footage from that address. Subsequently, CCTV footage was seized from the Treasury Casino in Brisbane.
Still photographs taken from the CCTV footage of the Players Universal Lounge revealed a person who matched the appearance of a person filmed entering the casino earlier that same night in a vehicle with a registration number BN82CC. Subsequent enquiries revealed that vehicle had been hired from Hertz Rent-a-Car by Shannon Clendon.[36] The footage from the Players Universal Lounge was taken at 8.30 pm. The Casino footage was taken at 6.14 pm on 5 June 2012. Later footage showed the person placing a bet in the casino area at 8.05 pm. The vehicle left at 8.20 pm.
[36]AB 103/5-6.
Mr Durre said subsequent enquiries revealed Shannon Clendon had attended the hotel, M on Mary, on 6 June 2012. CCTV footage showed Shannon Clendon using the lift in M on Mary from floor 40 to basement 1 at 9.00 am on the morning of 6 June 2012. At about 5.15 pm that same day, CCTV footage showed the appellant hopping in at the basement of M on Mary and then leaving at floor 40. The next day Shannon Clendon was shown getting in at level 40 at 12.29 pm and travelling to the basement. The appellant was shown hopping into the lift at level 40 at 12.45 pm.
Mr Durre said a search of the hotel room at M on Mary at approximately 4.15 pm on the afternoon of 7 June 2012 located a number of items, including lengths of hair in the bathroom. Shannon Clendon was spoken to that afternoon. Subsequent enquiries revealed Shannon Clendon had purchased tickets for her and her son, Lincoln Donaldson, to travel from Brisbane to Auckland on 8 June 2012. Shannon Clendon was spoken to by Australian Federal Police at the airport. Her mobile phone was seized, but she was allowed to travel to New Zealand.[37]
[37]AB 110/35-37.
Mr Durre said subsequent enquiries revealed the appellant and Ms Marsh had booked tickets on Air New Zealand to fly out of Sydney to Auckland on the evening of 8 June 2012. They failed to make that flight. On 9 June 2012, the appellant and Ms Marsh made a further booking to travel from Melbourne to New Zealand on 10 June 2012.[38] The appellant and Ms Marsh were intercepted by Australian Federal Police officers at Melbourne Airport. A significant amount of cash was seized, as was a parking ticket for the Brisbane Airport that had her registration number on it. Police subsequently identified Ms Marsh as the owner of a red 2006 Suzuki Swift. Ms Marsh’s vehicle was subsequently seized for forensic investigation.
[38]AB 111/40-46.
Adam Shaw, an investigative accountant, said an analysis of the financial records of the appellant, Ms Marsh, Shannon Clendon and Warren Clendon for the period between 27 May 2012 and 10 June 2012 revealed they had net funds from unknown sources of $23,510.66. These unsourced funds included $15,500 in cash deposits into various banks, including branches in Sydney. There was also $8,300 in cash located on them at the time they were intercepted by police.
The appellant gave evidence and called a number of witnesses in his defence. The appellant said he was in a relationship with Ms Marsh in June 2012. He had previously been in a relationship with Shannon Clendon. They had one son from the relationship. In June 2012, Shannon and their son were living with the appellant’s mother and stepfather in a home at Bracken Ridge. The appellant was also friends with Shannon’s brother, Warren Clendon.
The appellant said he would drive Ms Marsh’s red Suzuki Swift from time to time. He believed Warren Clendon had the lost key for the vehicle. Warren used the car from time to time. The appellant denied committing the robbery. He was not at the Hotel on the morning of 3 June 2012. The appellant agreed he knew Shannon Clendon worked at the hotel, and had done so for some years.
The appellant said on 3 June 2012 he was staying at Ms Marsh’s house. He stayed there the night before. He awoke at about 6.00 am. At about 6.15 am, Warren Clendon arrived at the house. He had previously arranged to go with Warren to look at some “wheels” he was going to get Ms Marsh for her car.
The appellant said Warren Clendon parked his car and the two of them left in Ms Marsh’s car. They drove to the appellant’s mother’s house at Bracken Ridge. The appellant gave Warren Clendon $700 for the wheels and asked him to come back and pick him up once he had finished looking at the wheels with his friends. The appellant was going to see his son. The appellant estimated he arrived at the house at about 6.30 am. He spent the morning with his son and watched some movies. Warren Clendon returned at around 10.00 am. The appellant said he did not leave the house between 6.30 am and 10.00 am.
The appellant agreed he had attended the Players Universal Lounge on the evening of 5 June 2012 and spoke to Ms Cross and Ms Hokin. He went there with his stepfather because it was his stepfather’s 60th birthday. They had also attended the casino earlier that night. The appellant also agreed he had attended the back room with those women in order to have them perform a lap dance. This occurred at separate times. The appellant said he was approached by some girls wanting to know if he wanted a lap dance. He asked them what the best deal was and chose a half hour lap dance for his stepfather and himself. The dancers performed in separate areas but they could see each other. He denied confessing to either of them about the robbery at the hotel.
The appellant said the first lap dance was with Ms Cross. Half way through the lap dance he told Ms Cross to sit down. They then had some drinks. They spoke about New Zealand and asbestos. They also spoke about his girlfriends. He told Ms Cross his ex-partner worked at the RG Hotel in the Valley. He said the place was robbed the other day. He then pulled out his iPhone and showed her footage of a news report he had recorded on the iPhone.[39] He had recorded it off the TV news. In the background of the footage was his ex-partner Shannon. The appellant recorded the news footage because his ex-partner worked there. He was at the Stamford Hotel when he recorded it.[40] Ms Marsh did not see the footage as she was in the shower.
[39]AB 177/5.
[40]AB 193/30-33.
The appellant said they spoke some more about his ex-girlfriend and Ms Cross said he should bring her to the club. The time was then up and he went to leave the club. However, his stepfather had obtained another drink and they started drinking outside the lap dance room. They were then approached by other girls, including Ms Hokin. He believes Ms Cross was also there. Whilst they were drinking he realised he did not have any more money. He told them he would go get some money. The appellant went down to the car to obtain his wallet and came back to the club, paid for the drinks and then paid for a lap dance with Ms Hokin. He did not recall saying anything about having to go and see his bank manager or that it was a bag in the boot of the car.
The appellant said after Ms Hokin started her lap dance she sat down and they started talking to each other. They spoke about New Zealand. They also spoke about the appellant’s girlfriends. He went to show Ms Hokin the same news footage on his iPhone. When he pulled his iPhone out, he was told he was not allowed to use his phone and take pictures. He said he was just showing some footage. He showed Ms Hokin the same footage. He later left the club.
The appellant agreed he spoke to Ms Cross and Ms Hokin about New Zealand and going to the casino. He denied saying he had blown $2,000 at the casino. He also denied saying he owed anyone $13,000. He agreed he was carrying cash on him that night but thinks it may have been a little less than $40,000. He raised the robbery with Ms Cross and Ms Hokin. He showed her the video as Ms Cross was asking what his ex-girlfriend looked like. He denied confessing to the robbery to either Ms Cross or Ms Hokin.
The appellant agreed that whilst he and Ms Marsh were in Sydney, Ms Marsh opened a bank account at St George Bank. He provided her with about $5,000. The night before Ms Marsh had told him she was pregnant. He gave her the money because he wished to get a flat together. He agreed he also gave Warren Clendon money to assist Shannon Clendon to leave Australia. He believes he gave Warren Clendon $6,000. He did so because it was Shannon’s share of the savings the three had together. They had been saving together to purchase a house.
The appellant said the savings were cash savings which were not kept in a bank. The money was stored in a container or a shoe box at home. No records were kept of the amount of money but the greatest amount he saved was about $40,000. The money was invariably kept at Bracken Ridge. His son exercised some control over its security. He had asked Warren Clendon and Shannon Clendon to provide him with bank documents to see how much money had been taken out over the period. They related to two bank accounts at the National Australia Bank, and one account at Westpac. They demonstrated cash withdrawals and his habits of dealing with money over the years. He preferred to use cash.
The appellant said his practice was to withdraw the money out of the bank and save it in a shoe box.[41] He had photographs from 2005 and 2006 of monies he had withdrawn from the bank.[42] He had written notes for his son over the years to let him know how much money he had given him, as well as the worth of other items such as cars.
[41]AB 182/29.
[42]Exhibits 23 and 24.
The appellant agreed he had stayed at M on Mary on 6 June 2012. He had stayed at that hotel on numerous occasions prior to June 2012. He also stayed there on 26 May 2012 for his birthday. Sometimes Shannon Clendon would book the hotel, sometimes he would book the hotel. Warren Clendon and the appellant had also stayed there.
The appellant agreed that his mother and his son had moved to the Bracken Ridge address around April 2012. He agreed he was close to Warren Clendon and that he shared money with Warren and Shannon Clendon. He did not share money with Ms Marsh. The appellant said that in 2012 he had about $40,000 stored in the shoe box and other places at Bracken Ridge. He would quite often carry the money around with him. He had the money with him on 3 June 2012. It was in his bag.[43]
[43]AB 189/36.
The appellant said he knew that Warren Clendon had a key to Ms Marsh’s car from soon after Ms Marsh purchased the vehicle.[44] He was aware that Warren Clendon drove Ms Marsh’s vehicle. He would also drive the vehicle from time to time. He did not tell Ms Marsh where her spare key was, but did not think she would mind if others used her car.
[44]AB 188/9.
The appellant agreed that on the morning of 3 June 2012 he left Ms Marsh’s house without saying goodbye and went with Warren Clendon in Ms Marsh’s car. He denied he was driving the vehicle that day. He did drop Ms Marsh at work the next day.
The appellant said he stayed at M on Mary on the night of 5 June 2012. He left on the morning of 6 June 2012 and went to the Petrie train station. He fitted the new mag wheels to Ms Marsh’s car while she was at work. They were put on for the surprise. He agreed he also put on some seat covers. The stickers were added on that day.[45] He agreed he also cut his own hair whilst at M on Mary.[46]
[45]AB 199/1.
[46]AB 200/35.
The appellant agreed he travelled to Sydney with Warren Clendon on 7 June 2012. Warren Clendon drove the car to Sydney. The appellant wanted Ms Marsh to come to Sydney for the long weekend. He decided, whilst in Sydney, to travel to New Zealand. He agreed he told Ms Marsh to bring her passport so that she could go to New Zealand.[47] By that stage he knew police had been to his mother’s Bracken Ridge house. He denied he decided to go to New Zealand after he found out the police had been to his mother’s house. The appellant decided to go to New Zealand when he found out Shannon Clendon and his son were going to New Zealand.[48] He was travelling to New Zealand to bring his son back.
[47]AB 202/11-12.
[48]AB 202/45-47.
The appellant agreed Ms Marsh arrived in Sydney early on the morning of 8 June 2012. On that day he gave money to Warren Clendon, Shannon Clendon and Ms Marsh. The money he gave Ms Marsh was put into her account for the flights to New Zealand. He also agreed that when he was intercepted by police on 10 June 2012 they seized €2,000 and AUD$1,700 cash from Ms Marsh and the appellant. This was in addition to the $4,000 he gave Ms Marsh for the flights and almost $5,000 he gave her when opening the St George bank account.
The appellant agreed he missed a flight from Sydney to New Zealand. He then drove to Melbourne with Ms Marsh. They had already booked a flight to New Zealand the following day.[49] They were intercepted at Customs. The appellant agreed he had spent a fair bit of cash in that week but said it was “no more than usual.”[50] He frequently stayed in hotels.
[49]AB 202/37.
[50]AB 207/35-36.
Shannon Clendon was living with her son at the appellant’s mother’s residence at Bracken Ridge in June 2012. She was approached by police on 7 June 2012. She had worked at the hotel on 3 June 2012 and was aware of the robbery. She recalled hearing the appellant’s voice at the Bracken Ridge house early on the morning of 3 June 2012. She remained in bed and left for work before he left the house. She agreed she did not see the appellant on 3 June 2012. She heard him and saw a red car drive off.[51]
[51]AB 234/43.
Ms Clendon said on 3 June 2012 she commenced work at the hotel at 10.00 am. It was her regular Sunday shift. She arrived around 9.30 am. When she walked in, the manager was standing in the corner. People were talking about the robbery. By that stage the police had left the hotel. The robbery was also discussed at a staff meeting she attended on 4 June 2012.[52] After the meeting the appellant picked her up in the hire car. The next day the appellant showed her a news clip containing footage of the robbery.[53]
[52]AB 227/16-26.
[53]AB 228/37.
Ms Clendon agreed she stayed at M on Mary with the appellant on 5 June 2012. They did not arrive at M on Mary until 3 o’clock in the morning on 5 June 2012. She had taken the appellant to M on Mary to get him away from the house because both his stepfather and the appellant were very drunk.[54] The appellant’s mother was very angry at her husband, Rodrick Falkner, so they caught a taxi together to M on Mary. They stayed in the same room. They left on 7 June. She went to work on 7 June after leaving M on Mary.
[54]AB 231/31-36.
Ms Clendon said she was approached by police and spoken to while she was at work on 7 June 2012. She knew police were looking for the appellant. She had received a telephone call from a sister to say they had searched the house and the rental car. She told police she had not seen the appellant for a long time and nor had her son, except on 5 June 2012. She agreed she lied to police about not having seen the appellant for ages.[55] She did so because she did not want to speak to them. She denied lying to cover for the appellant.[56]
[55]AB 232/28.
[56]AB 232/38-39.
The appellant said initially, when speaking to the police, she thought they must have been investigating everybody who worked at the hotel. She agreed police asked her for a statement but she had not provided a statement. She also agreed that at the time she owed money on her credit card. She also agreed that the following day after she spoke to police she booked a flight to New Zealand. She said her mother was extremely ill.
Ms Clendon said that in June 2012 she, the appellant, and her brother Warren were all saving money to purchase a house. They would pool their money in a savings box kept by the appellant. They put differing amounts into the savings box. They had around $30,000 at June 2012.[57] At that time the appellant’s income from his employer, Greg Brown, was paid into Shannon Clendon’s bank account. The money would be drawn out once Greg Brown deposited it.
[57]AB 216/13.
Ms Clendon said it was common practice for the appellant and her to stay in hotels. They often stayed at M on Mary. Ms Clendon agreed that she hired a car on 4 June 2012. She gave the vehicle to the appellant on 5 June 2012.
On the day of the robbery, Mr Falkner was awoken at around 6.35 am by the garage door opening and closing. He remained in bed but his wife told him it was the appellant. When he went downstairs at around 8.00 am, the appellant and his son were watching a movie. He did not speak to the appellant. After having a cigarette, he went back upstairs and watched TV. He agreed he was guessing in relation to the time he saw the appellant but said he was definitely there that morning. He did not see the appellant leave that morning.
Mr Falkner agreed he had attended the strip club with the appellant on the evening of 5 June 2012. The appellant took him there for his birthday. The appellant paid for everything. They had won money at the casino so the appellant was shouting him. He did not see any black bag when he was with the appellant. He remembered a lady screaming at the appellant for having his phone in the lap dance room. The woman was saying “no phones are allowed in here”.[58] He denied coming to Court to protect the appellant. He agreed he did not give a statement to police about where the appellant was on the morning of 3 June 2012 until May 2013.
[58]AB 244/45.
Christine Falkner, the appellant’s mother, recalled she was awoken on the morning of the robbery between 6.35 and 6.45 am by a noise. She hopped out of bed and looked out the window. She saw the appellant walking down the driveway towards the house. She heard the garage door go up. She presumed the appellant was there to see his son. She heard a car door but did not see a car. When she got out of bed later that morning and went downstairs she saw the appellant and his son sitting in the lounge area. It was around 8.00 am. She went back upstairs and left the house shortly afterwards, between 8.10 and 8.30 am that day. She did not see the appellant again that day. It is her habit to look at the clock when she hears a noise. She looked at the clock that morning. She had to be out of the house as she dropped Shannon Clendon to the train. Shannon had to be there by 8.20 or 8.25 am that day. She denied giving evidence to protect her son.
Warren Clendon gave evidence that he had the spare key to his cousin, Ms Marsh’s red Suzuki. He received it from his cousin. He would sometimes borrow the car to run errands. Ms Marsh was not aware he had the key, or that he was using the motor vehicle. On the morning of 3 June 2012, he had organised to buy some wheels. He got up early and went to Ms Marsh’s place in his girlfriend’s car. He dropped that car off and picked up Ms Marsh’s car. The appellant came out with him. He dropped the appellant at his mother’s place and went to look at the wheels. He later picked up the appellant and dropped him back at Ms Marsh’s house. He then hopped back into his girlfriend’s car and went home for lunch. He took Ms Marsh’s car because he had to make sure the wheels were the correct size.
Mr Clendon estimated he arrived at Ms Marsh’s house at about quarter past six. The appellant came out when he arrived at the house. He dropped the appellant at his mother’s house at about 6.30 am. He returned at around 10.00 or 10.30 am that day and drove the appellant back to Ms Marsh’s house. He put the new wheels on Ms Marsh’s car on 6 June 2012, with the appellant’s assistance. He did not recall changing any seat covers or putting on stickers.
Mr Clendon confirmed that the appellant, Shannon Clendon and he were saving to buy a house for the appellant’s son. He would withdraw money and give it to Shannon or the appellant who would save it in a tin can or shoe box. All three were saving together. He agreed he was close to the appellant. He denied his version of events on 3 June 2012 was untrue.[59] He found out about the armed robbery when he arrived in New Zealand.
[59]AB 261/38.
Mr Clendon saw the appellant at M on Mary the day after he changed the tyres on the vehicle. They had plans to go to Sydney for a boys’ weekend away. It had been planned weeks beforehand. They drove to Sydney. Whilst there the appellant gave him a large amount of money. It was money the appellant owed to him that they had been putting away together. The appellant gave it to him because Shannon Clendon had found out about the appellant and Ms Marsh. He did “a fair bit of banking” in Sydney.[60] He put $1,500 into his own account and then $3,000 into Shannon Clendon’s account. He agreed he did not provide a statement to police. The first statement he provided about the events was given just before the trial. He denied lying about the events.
[60]AB 264/47.
Lincoln Donaldson, the appellant’s son, said on the morning of 3 June 2012 he heard a vehicle pull up to approximately 6.30 am. The appellant came into the house. They watched a movie. The appellant left at about 10.00 am. The appellant would sometimes ask him to look after cash savings he had stored in shoe boxes. He agreed that when police came to the house on 7 June 2012 he told them he did not have much contact with his father, and did not have a number for his father or know where his father was staying at that time. He denied that was a lie. He would not lie for his father.
Applicable principles
Any determination of a ground of appeal that the jury’s verdict was unreasonable and not supported by the evidence as a whole requires an independent assessment of the quality and sufficiency of the evidence.[61] In undertaking that determination significant weight is to be given to the jury’s primary responsibility and the jury’s considerable forensic advantage obtained by observing the evidence being adduced at trial.
[61]SKA v The Queen (2011) 243 CLR 400 at [21], [22].
If, after a consideration of the evidence as a whole, the Appeal Court concludes it was not open to the jury to be satisfied beyond reasonable doubt that the guilty was accused, the verdict of the jury was unreasonable.[62]
[62]M v The Queen (1994) 181 CLR 487 at 498.
The relevant test was enunciated in M v The Queen:[63]
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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.”
[63](1994) 181 CLR 487 at 493.
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” and this Court is bound to set aside a verdict based on that evidence.[64]
[64]M v The Queen at 494; approved in MFA v The Queen (2002) 213 CLR 606 at 623-624.
If the Court is left with a reasonable doubt whether the appellant is guilty after “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 evidence”.[65]
[65]MFA v The Queen at 623-624, citing with approval M v The Queen at 525.
Submissions
The appellant submits that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence. A jury, acting reasonably, could not be satisfied beyond reasonable doubt the evidence that the appellant was not at his mother’s house at Bracken Ridge at the time the offence was committed on 3 June 2012.
The appellant submits there was no proper basis for a jury to reject the accounts of the appellant’s mother, stepfather and son, and those of Shannon and Warren Clendon. None of those witnesses conceded they were mistaken or confused about the occasion. All maintained that their account was true. All rejected an assertion they were giving false evidence in order to assist the appellant. Further, Shannon Clendon had a specific reason to remember the day of the robbery.
Further, the appellant did not fit the description of the offender, and the two lap dancers to whom the appellant allegedly confessed had both been drinking alcohol when they spoke to the appellant and both acknowledged the appellant had spoken about a news report which was consistent with his account. Any confession made by the appellant, which he denied making, was consistent with untrue boasting. The appellant had also provided an account for his travel movements and spending in the period after the robbery, and an account explaining the source of cash at the time. That account was corroborated by Shannon and Warren Clendon and Lincoln Donaldson.
The respondent submits that when all of the evidence is considered as a whole, it was open to a jury, properly instructed, to be satisfied beyond reasonable doubt of the appellant’s guilt. There was circumstantial evidence capable of showing the appellant had committed the robbery. There was also evidence of two confessions by the appellant.
Whilst the appellant called alibi evidence, it was for the jury to decide what evidence it did or did not accept. The jury were properly directed in relation to the onus and standard of proof, and as to the proper approach should the jury reject the defence witnesses. Proper respect must be given to the legitimacy of the jury verdict.
Discussion
Whilst the prosecution case was based on circumstantial evidence, there was ample evidence upon which a jury could be satisfied beyond reasonable doubt that the male offender who committed the robbery was the appellant.
First, there was evidence from Ms Marsh that the appellant left her residence in her red Suzuki motor vehicle prior to 7.00 am on the day of the robbery. He did so without saying goodbye. The appellant reappeared at her residence some hours later.
Second, there was evidence the male offender used a red motor vehicle answering the description of Ms Marsh’s vehicle in the robbery. A vehicle matching that description was tracked by CCTV heading north from the robbery, the direction of Ms Marsh’s residence. Further, within three days of the robbery the appellant altered the appearance of Ms Marsh’s vehicle through the installation of different wheels and different seat covers.
Third, there was evidence the appellant, shortly after the robbery, had access to large amounts of cash which he spent or provided to various persons. That evidence included an admission from the appellant that he had $40,000 in cash with him in a bag on the day of the robbery.[66] There was also evidence from Ms Cross and Ms Hokin that the appellant had a large “wad” of cash with him on the night of 5 June 2012 and the appellant had spoken of going to his car where he had a bag of cash.
[66]AB 189/38.
Fourth, there was evidence from Ms Cross and Ms Hokin of the appellant’s confessions to commission of the robbery. It was a matter for the jury whether those confessions were made, and were reliable and accurate. There was nothing in the cross-examination of those witnesses which made their version inherently improbable, or which would cause a jury not to accept them as witnesses of truth and reliability. They were not significantly intoxicated with alcohol, and their evidence was not inherently unreliable. They had reason to remember what was an unusual conversation, and had given the account to police within a day of their conversations with the appellant. It was open to the jury to accept their evidence that they were never shown news footage by the appellant or that the confession was untrue boasting on behalf of the appellant.
Finally, the suggested inconsistency in the description of the offer given by the manager, Tony, was not of a magnitude which would call into question the guilt of the appellant. The jury may well have considered Tony had only a limited opportunity to assess the offender’s height. Conversely, the female complainant gave a description which generally fitted the appellant, including that the offender had a New Zealand accent. It was open to the jury to find that the complainant’s description fitted that of the appellant, and the manager was generally mistaken in his assessment of the offender’s height.
Whilst the evidence given by the appellant and his witnesses in support of his alibi, if accepted by the jury, would raise a reasonable doubt as to the appellant’s guilt of the offence, it was open to a reasonable jury, properly instructed, to reject that evidence. Shannon Clendon accepted she had lied to police. That was a telling matter for a jury when assessing her credibility. Shannon Clendon had also benefited from monies said to be the proceeds of the robbery. The jury may have reasonably doubted the reliability of her evidence that the appellant was at his mother’s residence at the time of the robbery. That evidence was, in any event, limited to hearing the appellant’s voice, not seeing the appellant, on the morning in question.
The appellant’s mother, stepfather and son all had reason to give evidence in support of his alibi. It was for the jury to assess their reliability and accuracy. There was no objective evidence to support their assertions the appellant was present at his mother’s residence at the time of the robbery. It was expressly put to them that their evidence was untruthful. Further, none of them gave details of this alibi to police despite attempts to speak to them in the weeks following the robbery. All of them were aware police alleged the appellant was the male offender. It was open to a jury, properly instructed, to find their failure to give this information to police in such circumstances as telling and consistent with their evidence being untruthful. It was also open to the jury to find that Lincoln Donaldson lied to police when he said he did not have a telephone number for his father. Lincoln Donaldson gave evidence that at the time his father was using Lincoln Donaldson’s telephone.
Similarly, the jury had a basis to reject the evidence of Warren Clendon. He had received large sums of cash shortly after the robbery. He had been involved in alterations to Ms Marsh’s vehicle in the days after the robbery. He also did not tell police of the appellant’s alibi. All of these matters were matters a jury, properly instructed, could have regard to in determining whether they found Warren Clendon to be a truthful and reliable witness.
None of the matters raised by the appellant in support of a submission that it was not reasonably open to the jury to reject the evidence of the appellant and his witnesses as to the appellant’s whereabouts on the morning of 3 June 2012, either individually or collectively, support a finding that it was not open to the jury to reject that evidence. There is no basis to conclude that the verdict of the jury was unreasonable or that the appellant’s conviction is unsafe and unsatisfactory.
Conclusion
The appellant accepts that appropriate directions were given to the jury by the trial Judge in relation to the proper approach to be adopted by the jury should they reject the evidence of the appellant and the witnesses called in his defence. There is no basis to conclude the jury failed to act in accordance with those directions.
Once it is accepted that it was open to the jury to reject the evidence of the appellant and the witnesses called in his defence, there was ample evidence in the prosecution case, if accepted by the jury, to support a conclusion beyond reasonable doubt the appellant was the offender who committed the robbery on 3 June 2012.
There is no basis to conclude the jury, properly instructed, reached a verdict which was unreasonable in the circumstances. It is a classic case where the jury’s assessment of the witnesses is to be given paramount weight. Their acceptance of the prosecution witnesses in itself properly would cause the jury to doubt the reliability of the evidence given by the appellant and the witnesses in support of his alibi.
Order
I would dismiss the appeal.
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