R v LINDSAY - [2013] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LINDSAY
[2013] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
12 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
Appeal against conviction on a charge of aggravated robbery - the offending occurred at a bottle shop and involved the theft of alcohol - the evidence against the appellant was circumstantial - the appellant was convicted on the basis of joint enterprise or aiding and abetting the men who committed the robbery - the appellant appealed on the grounds that the prosecution evidence did not establish a case to answer and, in the alternative, that, if there was a case to answer, the conviction was unreasonable and could not be supported by the evidence - the first ground was abandoned on the hearing of the appeal - the DPP accepts that the remaining ground ought to be determined solely by reference to whether the evidence supports a conviction by way of a joint enterprise.
Held: the verdict cannot be supported by the evidence - appeal allowed - conviction set aside - verdict of not guilty substituted.
Criminal Law Consolidation Act 1935 (SA) s 137, referred to.

R v LINDSAY
[2013] SASCFC 48
Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ

KOURAKIS CJ: The appellant appeals against his conviction on a charge of aggravated robbery committed on 18 June 2011 on the grounds that the prosecution evidence did not establish a case to answer and, in the alternative, that, if he had a case to answer, the conviction was unreasonable and could not be supported by the evidence. The first ground was abandoned on the hearing of the appeal.
It was not disputed at trial that there had been a robbery at the Eureka Tavern in Salisbury shortly before midnight on 18 June 2011. The issue at trial was whether the appellant was a party to a joint enterprise or had aided and abetted the men who committed the robbery. For reasons which need not be explained, the Director of Public Prosecutions accepts that the unreasonable ground should be determined solely by reference to whether the evidence supports a conviction by reason of the appellant’s participation in a joint enterprise. In particular, the Director does not seek to support the conviction on the basis that the appellant was an accessory after the fact.
The evidence is of short compass. The appellant had been at a post-football match gathering at the home of the prosecution witness, Darren Smith, earlier in the night. Darren Smith testified that the appellant left the house at about midnight with “a few of the boys” who said they were going to get some more alcohol.
Video footage from cameras at the Eureka Tavern shows that a man, who it is agreed is Matthew Bright, is seen to enter the bottle shop first and approach the counter where he orders a carton of beer. Whilst he is waiting for the carton to be brought to the counter, two men, who it is agreed are Tyson Wanganeen and Edgar Wanganeen, are seen to enter the bottleshop together with the appellant. The appellant and one of the Wanganeen brothers are wearing a hooded jacket. Yet another man, agreed to be Jason Benbolt, can be seen walking out of view into the pokies room of the tavern.
Tyson and Edgar Wanganeen walk past the appellant to an area of the bottle shop where there are shelves of bottles of alcoholic spirits behind the counter. They move into a roped off area to get access to the bottles. Hotel staff who attempt to prevent them taking any bottles are assaulted by the Wanganeens. When the staff back away, one of the Wanganeen brothers takes five bottles of Jim Bean whiskey from the shelves. That was the robbery to which the prosecution alleged the appellant was an accessory.
The appellant can be seen in the video footage standing nearby behind a stack of cartons whilst Tyson and Edgar Wanganeen commit the robbery. He does not appear to speak or gesticulate in any way. He takes no step to become involved in the events unfolding before him. Immediately after the robbery, the appellant and the Wanganeens are shown leaving the bottle shop together.
A short time later the police located the appellant in the driver’s seat of a car in a service station about two kilometres from the hotel. With him were Matthew Bright, Jason Benbolt and Edgar Wanganeen. There was evidence from which it might be inferred that Tyson Wanganeen had fled from the service station shortly before police attended. A carton of West End Draught was located in the footwell of the car and five bottles of Jim Beam were located under the front passenger seat.
The appellant was questioned by the police and falsely denied that he had been at the tavern. The Judge directed the jury that they should not regard his false denial as evidence of guilt. The Director accepted on the hearing of the appeal that the evidence of the appellant’s false denials should not be treated as evidence of guilt. Plainly enough the appellant’s lie can be explained by a concern that if he were to admit his presence at the bottleshop he might be implicated in the offence even if he had not been a party to a joint enterprise. The lie is also explicable on the basis that he was concerned that he might incriminate himself as an accessory after the fact. The evidence, if evidence of guilt at all, was very weak because the false denial was made after a time in which the appellant must have known that he was suspected of involvement, of one sort or another, in the robbery.
The appellant’s complaint that the conviction was unreasonable and unsupported by the evidence requires this Court to review for itself the strength of the prosecution case. The evidence against the appellant is circumstantial and is, in effect, captured on the video footage. This Court is in as good a position as the jury to assess the evidence. Nonetheless, I pay some deference to the jury’s assessment of the strength of the circumstantial case because of the jury’s important position as the primary tribunal of fact in the common law criminal trial.
The prosecution case was, as the trial Judge himself observed in the course of the no case submission, a very weak one. To my mind the fact that Bright purchased a carton of alcohol is very important. The purchase by Bright of the alcohol shows an innocent reason for the appellant’s presence in the bottle shop.
There is no evidence which can exclude beyond reasonable doubt the possibility that Tyson and Edgar Wanganeen embarked on a frolic of their own after arriving at the bottleshop. The closer attention which the appellant appears to pay to the activities of the Wanganeen brothers may be explained by any number of reasons. They may have been closer friends than the other occupants of the car or they may have happened to be more closely engaged on that particular night. There is no evidence, rising above suspicion, that the appellant was aware of their intention to steal the alcohol, let alone to use or threaten violence, before they embarked on that course.
The appellant’s decision to drive the Wanganeens away is, of course, strong evidence that he was an accessory after the fact but, to my mind, it is an insufficient basis from which to find that he was a participant in a joint enterprise to commit the robbery. In my view, the fact that the appellant was wearing a hoodie is of little weight in the absence of evidence about his usual clothing habits and the temperature on the night. Moreover, it seems somewhat improbable that the hoodie was intended as a disguise when one of the Wanganeen brothers was not in any way disguised. Indeed, that fact in itself suggests that the decision to steal the alcohol was spontaneous or, at least, not planned well in advance.
For the sake of completeness, I indicate that I have not given any weight to the appellant’s facial expression. The video is of poor quality and the apparent changes in the appellant’s expressions are not a very strong foundations from which to draw an inference one way or another. Nor have I placed any weight on the appellant’s failure to go to the assistance of the Wanganeens. The appellant was liable to be convicted even if his role in the joint enterprise had been limited to driving the Wanganeen brothers away.
It is simply the inability of the evidence to preclude the possibility that the Wanganeens acted on a frolic of their own which leads me to the conclusion that the verdict cannot be supported by the evidence. I would allow the appeal, set aside the conviction and substitute instead a verdict of not guilty.
PEEK J: I agree that the appeal should be allowed and a verdict of acquittal should be entered for the reasons given by the Chief Justice.
BLUE J: I agree.