R v K, GN - [2004] SASC 431

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, GN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
22 December 2004
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
Appellant and co-accused charged with wounding with intent to do grievous bodily harm and armed robbery - appellant convicted of armed robbery with co-accused - appellant acquitted of wounding with intent to do grievous bodily harm - co-accused convicted of both charges - incident occurred in foyer of hospital - incident recorded on video tape - whether conviction unsafe and unsatisfactory having regard to whole of evidence - reliance by appellant on evidence of victim - evidence capable of establishing appellant's complicity in offence of armed robbery - verdict not unsafe or unsatisfactory - held: conviction not unsafe or unsatisfactory - appeal dismissed.
M v The Queen (1994) 181 CLR 487, applied.

R v K, GN
[2004] SASC 431
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J I am in general agreement with the reasons for decision of Anderson J. I wish to add the following comments.
The sole ground of appeal is that the verdict is unsafe and unsatisfactory.
The principal argument relied upon at the hearing of the appeal was that the evidence led to establish that the appellant was party to a pre-arranged agreement to rob the victim or that she acted in concert with her husband in robbing the victim was inadequate and unreliable. It was also argued that evidence given by the victim was inconsistent with the appellant’s involvement in the offence.
It is true, as Ms David for the appellant pointed out, that the incident lasted for only a short time. However, the movements of the appellant and her husband as they appear on the video film support the prosecution argument that the two acted in concert in approaching and confronting Mr Nguyen. The appellant’s actions in taking possession of Mr Nguyen’s bag occurred as soon as he was grabbed around the neck.
Furthermore, it was open to the jury to reject the appellant’s claim that the incident was triggered by Mr Nguyen throwing a balloon of heroin at her and that she grabbed hold of the bag because she saw what she thought was a knife or a pair of scissors in it.
It is not in dispute that the appellant’s husband inflicted a number of wounds to Mr Nguyen with the scissors. The defence case at trial was that the appellant’s husband somehow removed the scissors from Mr Nguyen’s bag and then used them to continue his assault on the victim. In all the circumstances of the case this version is highly unlikely.
If these aspects of the defence case were rejected there was sufficient evidence to support the inference that the appellant’s husband armed himself with the scissors prior to the attack on the victim and that the appellant was aware of this fact. Her actions in grabbing the victim’s bag at about the time of the commencement of the attack by her husband provides strong support for the prosecution contention that she was involved in robbing the victim.
I have said that the appellant relied on certain parts of the victim’s evidence in support of the argument that she was not a party to the offence. In this respect the court’s attention was drawn to the following passage in Mr Nguyen’s cross-examination at 352:
“QDuring the course of the fight when you were being stabbed you told us I think that K was crying, can you remember her calling out to you and John, from somewhere nearby for the two of you, to stop fighting?
AShe told her husband to stop but she didn’t tell me to stop.
QHow do you know she was yelling out to John to stop and not you?
ABecause she was speaking in English.
QAnd she was addressing the word ‘stop fighting’ to the pair of you?
ABecause at the time when she saw her husband locking my neck she appeared to be very frightened, she said words to the effect that ‘stop, don’t do that’.”
Mr Nguyen also gave evidence that the appellant told her husband to give the bag back on a number of occasions after he gained possession of it.
Reliance was also placed on the following passage in the cross-examination of Mr Nguyen at 334:
“QAt some stage did you and John grab the bag and K let it go and stepped back?
AYes, yes.
QAt that stage you and John were fighting over possession of the bag?
ANo, no just fighting – my money in there.
QYes but what I’m saying is you were both trying to get possession of the bag from each other, take the bag from each other?
AYes, yes.
QK was stranding next to you, calling out ‘Stop it, stop fighting’?
AYes.
QAt some stage did she cry?
AYes.
QDid that occur before or after you and John were fighting over possession of the bag?
ANo, after.
QAt some stage were you aware of the presence of blood?
AYes.
QWere you aware whether it was yourself or John or both of you that were bleeding?
AMy blood.
QIs it correct that at that stage K was still yelling to both of you to stop it and saying ‘you’re bleeding’ or something to that effect?
AYes.
QWas it shortly after that that John obtained possession of the bag and walked away?
AYes.”
The jury were invited by the appellant to view these aspects of Mr Nguyen’s evidence as supporting the appellant’s version that she was not involved in the offence of armed robbery. However, it was also open to the jury to conclude that the appellant began to have misgivings about the incident as it progressed, particularly when she observed the extent of the violence being inflicted on the victim. The verdict of not guilty on the charge of wounding with intent to cause grievous bodily harm which had been laid against the appellant is consistent with this approach. Notwithstanding these matters, the evidence was capable of establishing the appellant’s complicity in the offence of armed robbery at the time of the initial attack on the victim.
In my view, the verdict of the jury is not unsafe or unsatisfactory and the appeal should be dismissed.
BLEBY J I have read and agree with the reasons of Anderson J and Duggan J. I agree that the appeal should be dismissed.

ANDERSON J In this matter the appellant appeals against her conviction for an armed robbery committed on 11 November 2002 at the Women’s and Children’s Hospital.
She had been charged jointly with her husband in relation to offences of armed robbery and also with wounding with intent to do grievous bodily harm. Her husband was found guilty of both charges, but the appellant was acquitted on the charge of wounding with intent to do grievous bodily harm and was convicted of armed robbery.
The argument on appeal was that the verdict of the jury in convicting the appellant of armed robbery was unsafe and unsatisfactory, and could not be supported having regard to the whole of the evidence, in accordance with the principle stated by the High Court in M v The Queen (1994) 181 CLR 487.
The principle is stated by Mason CJ, Deane, Dawson and Toohey JJ at 493 as follows:
“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. But in answering that question the court 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.” (Footnotes omitted).
Their Honours also referred to Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No. 2] 153 CLR 514 at 532 and 621, and Knight v The Queen (1992) 175 CLR 495 at 504-505 and 511.
The circumstances leading up to the incidents in question followed the birth of the appellant’s child in the Women’s and Children’s Hospital on 4 November 2002. The child born was drug-dependent because of the habits of the appellant. The appellant had been moved into the residential block of the Women’s and Children’s Hospital whilst the child was cared for in a special unit in the hospital.
During her stay in hospital, the appellant met Mr Vinh Nguyen (“the victim”), and his partner who had also given birth to a child in the same hospital. That child, who was also drug-dependent, had remained in hospital after the victim’s partner was discharged. In the special care unit of the hospital, the appellant came to know both the victim and his partner in connection with their children being treated in the same unit.
Both the appellant and her husband were heroin addicts and were attempting to find access to supplies of heroin. Various discussions ensued between the appellant, the victim, and his partner in relation to the potential supply of heroin.
According to the prosecution case, the appellant and her husband carried out a pre-arranged plan to rob the victim with the possible motive of stealing heroin from him. It was alleged that the appellant’s husband took hold of the victim and stabbed him with a pair of scissors while the appellant grabbed his bag.
It was the appellant’s case that she and her husband approached the victim to remonstrate with him for supplying the appellant with heroin on the previous evening. The appellant said in evidence that the victim and her husband argued and that the victim then ripped open a balloon containing heroin and threw it at her husband. Her husband then placed the victim in a headlock. She said she did not see her husband with a weapon. According to her version the victim threatened to stab her husband and she saw something which looked like a weapon in his bag. She alerted her husband to this and he told her to grab the bag. She said she did so in order to stop the victim from using the weapon.
This case is somewhat unusual in that the events leading up to and including the essential aspects of the crimes alleged by the Crown were captured on the hospital’s video surveillance system.
The court was asked to look at the security videos which had been exhibits in the trial, and viewed both videos. The video was of very poor quality and only captured frames at intervals ranging up to a couple of seconds, but it also had a continuous time display.
It is apparent from a viewing of the videos and from the oral evidence given at the trial that the jury could conclude that there was some meeting organised between the victim, the appellant, and her husband immediately outside the foyer area of the hospital, that the appellant’s husband crouched down beside the victim, and that the appellant was a short distance away; that shortly after that, the appellant’s husband placed the victim in a headlock, and that almost simultaneously the appellant moved towards the victim and a bag which was on the floor between his feet; and that she reached down whilst her husband still had the victim in a headlock and took possession of the bag.
The jury could also conclude that after taking possession of the bag, the appellant stepped back a couple of metres from where her husband had the victim in a headlock and that she retained possession of the bag for approximately twenty seconds, during which time her husband was struggling with the victim. The victim finally broke away from her husband’s hold and tried to take possession of the bag from the appellant’s husband. Her husband retained the bag for a short time but then gave it back to the victim after the victim came back into the building from the car park.
During the struggle, the victim was stabbed several times with a pair of scissors, which, according to the victim’s evidence, had previously been held to his throat by the appellant’s husband.
As I have indicated, the Crown case was that the robbery was premeditated as between the appellant and her husband. As part of the Crown case it was alleged that it was the husband who produced the scissors and held them at the victim’s neck and effected the robbery of the victim by placing him in a headlock whilst it was left to the appellant to take the bag. The scissors bearing the DNA of the victim were later located in the hospital room used by the appellant and her husband.
The appellant’s argument relied to a large extent on the evidence given by the victim. He gave evidence that the appellant told her husband to stop when he first placed his arm around the victim’s neck and before the appellant took the bag. He said that she seemed frightened at the time. He also gave evidence that the appellant later told her husband to give the victim the bag and that the appellant was upset and crying at the time. The jury most likely did not accept all of the victim’s evidence. There were many discrepancies in his evidence concerning the scissors which I will deal with later.
It seems clear that the jury acquitted the appellant on the charge of wounding with intent because the injuries were inflicted on the victim following the taking of the bag. They cannot have been satisfied that she was a party to an exercise which included wounding, and that was the reason for her requesting her husband to stop, and was also a reason for her being upset at the time. In other words, it is likely that the jury believed that it was not within her contemplation that there would be such a wounding. The jury, however, from their viewing of the videos, were satisfied that she was party to the premeditated robbery.
In my view, it was open to the jury on the evidence, including the videos, to regard her as an active participant in the actual robbery. The conclusion that the pair were acting in tandem to rob the victim was supported by what could be seen on the videos.
The argument by the appellant is that the weight of evidence does not support the allegation that there was any plan by the appellant to rob the victim whilst the appellant’s husband was armed with the scissors.
The videos illustrate that the headlock was placed on the victim by the appellant’s husband prior to the bag being taken by her, yet the husband’s evidence was that he fortuitously found the scissors in the bag and then used them to defend himself. The victim received the wounds from the scissors shortly after the time that the headlock was placed on him and the bag taken. During that time, it is apparent that the appellant’s husband did not have access to the bag because by then the appellant had taken it and he was struggling with the victim. The appellant gave evidence in support of her husband’s version of events.
It was open to the jury not to believe the appellant’s husband. It was open to them to have accepted that he had the scissors for the purpose of the armed robbery, and that the appellant knew that he did. This version of events is clearly available on the evidence. The jury were entitled to reject the appellant’s version of her involvement in the robbery including her evidence in respect of the weapon being in the victim’s bag.
It was suggested in argument that the victim said in his evidence that the scissors held to his neck came from his car. He had gone to his car, wounded, after having escaped from the appellant’s husband. I do not believe that the evidence supports such a construction. Although he mentioned his car when asked about the scissors, the victim was not able to remember whether they were the scissors used in the robbery. Later, when cross-examined, it seems that he was saying that although he intended to get a weapon from his car, and that he knew there was a knife there, he decided not to take the knife from the car. It was open to the jury to treat that evidence as not supporting the fact that the scissors which were used came from his car.
The victim denied that the scissors were in his bag at the time of the incident. However, when shown the scissors in examination-in-chief he at first said that he had seen them in his car on the day he was stabbed. On further questioning he said he could not remember if the scissors shown to him were the scissors he saw in his car or whether they simply looked like them. The evidence given by the victim in relation to the scissors was somewhat confusing, but he qualified his identification of the scissors immediately and his evidence, when read as a whole, does not provide support for the defence argument that he was carrying the scissors in the bag immediately before the robbery.
Clearly, in my view, the jury decided that the appellant was a party to the joint enterprise to steal the bag, and that for the purpose of the robbery, scissors were to be used as the weapon to effect the robbery, but that she was not, as I have already indicated, a party to what followed in relation to the stabbing.
As I have already indicated, the main ground of appeal was simply that the evidence could not support the conclusion that the appellant was a party to any premeditated plan to rob the victim. On the whole of the evidence, and in particular having regard to what is clearly observable on the videos, I reject this. It is my view that the jury was quite entitled to take into account the evidence on the video which showed the appellant taking what appeared to be the bag. When combined with the other evidence regarding the background of the arrangement to meet the victim and the evidence about the scissors, it is my view that the verdict should not be regarded as unsafe and unsatisfactory.
Using the test in M v The Queen referred to earlier, it was, in my view, on the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The jury came to its decision having seen and heard the witnesses, and with the additional advantage of observing the participants on video.
I would therefore dismiss the appeal.