R v Mann

[2018] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MANN

[2018] SASCFC 111

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Lovell)

25 October 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

Application for permission to appeal. The applicant was tried before jury for three counts; count 1 being aggravated robbery, count 2 being driving dangerously to escape police pursuit, both allegedly committed on 31 May 2015, and count 3 being a second count of aggravated robbery committed on 3 June 2015. Before the trial commenced the applicant sought an order that count 3 be tried separately from counts 1 and 2.  The trial Judge declined to make the order sought.  The applicant was found guilty of count 3. The jury was unable to reach a verdict in respect of counts 1 and 2.

The applicant appeals on three grounds. The first ground is that in the event they were properly joined, the trial Judge erred in not exercising the discretion to sever the trial of counts 1 and 2 from the trial of count 3. The second ground is that count 2 was improperly joined with count 3 on the information with the consequence that there was a miscarriage of justice.  The third ground is that the verdict of guilty on count 3 is unsafe and unsatisfactory and has resulted in a miscarriage of justice.

Held per Kelly J (Blue and Lovell JJ agreeing) refusing permission to appeal:

1)  The offences were properly characterised as a series of offences of the same or similar character and were therefore properly joined.

2)  On the basis of the independent evidence relevant to count 3 it was open to the jury to convict the applicant on that count.

Criminal Law Consolidation Act 1935 s.278, referred to.
SKA v The Queen (2011) 243 CKR 400; M v The Queen (1994) 181 CLR 487, considered.

R v MANN
[2018] SASCFC 111

Court of Criminal Appeal:  Kelly, Blue and Lovell JJ

KELLY J:

1. The applicant, Guy Stephen Mann, applies for permission to appeal against a conviction for aggravated robbery on 29 November 2017 after a trial by jury. 

2. The applicant had been tried before the jury for three counts, being one count of aggravated robbery, one count of driving dangerously to escape police pursuit, both allegedly committed on 31 May 2015, and a second count of aggravated robbery committed on 3 June 2015.

3. The allegations in relation to counts 1 and 2 were that on the morning of Sunday 31 May 2015 the applicant used, or threatened to use, force by brandishing a firearm against the occupants of a motor vehicle which he stole (count 1) and approximately half an hour later that morning he engaged in, and evaded, a police pursuit while driving that stolen motor vehicle (count 2).  The allegations giving rise to count 3 were that three days later on the morning of Wednesday 3 June 2015 the applicant used or threatened to use force by brandishing a firearm against an employee at the Para Hills post office and stole money. 

4. Before the trial commenced the applicant sought an order that count 3 be tried separately from counts 1 and 2.  The trial Judge declined to make the order sought. 

5. The jury was unable to reach a verdict in respect of counts 1 and 2.  The applicant was found guilty of count 3. 

6. The applicant was refused permission to appeal by a Judge of this Court and now seeks permission from this Court.

7. The applicant makes three complaints on appeal.  The first complaint is that in the event that they were properly joined, the Judge erred in not exercising the discretion to sever the trial of counts 1 and 2 from the trial of count 3. The second complaint is that count 2 was improperly joined with count 3 on the information with the consequence that there was a miscarriage of justice.  The third complaint is that the verdict of guilty on count 3 is unsafe and unsatisfactory and has resulted in a miscarriage of justice.

   Evidence led at trial

8. The prosecution case was based partly on direct evidence and partly on circumstantial evidence.  The two alleged victims of count 1 were William Coulthard and Shiranta Coaby, neither of whom were known to the applicant.  Early on Sunday 31 May 2015 Mr Coulthard and Ms Coaby drove their gold-coloured Holden Commodore motor vehicle with registration plates WSI-459 (“gold Commodore”) and parked in a secluded car park area adjacent to an oval at Devonport Terrace in Prospect.  They were waiting for the arrival of Rebecca Moroney-Gray, who they knew only as “Bec” who had been selling them methylamphetamine.  The meeting had been pre-arranged to facilitate reimbursement for what the two alleged victims claim was an unsatisfactory quantity of drugs which had been purchased by them earlier. 

9. Shortly after they arrived at the parking area, a second Commodore motor vehicle parked in a position perpendicular to the rear of their vehicle, effectively blocking their exit.  A man brandishing a shotgun emerged from the vehicle and pointed the shotgun inside the driver’s window at Mr Coulthard’s face and demanded that they exit the vehicle.  He then drove the gold Commodore away from the scene.  The woman, Ms Rebecca Moroney-Gray, who had been in the front passenger seat of the second Commodore, drove that vehicle away from the scene. 

10. The two victims provided a limited description of the man who stole the car.  Mr Coulthard described the vehicle in which the robber arrived as a green Commodore 1990 or 1998 model.  Ms Coaby described it as a silver Commodore and an older style than the one they owned.

11. The descriptions the victims gave of the firearm used by the robber were as follows. Mr Coulthard described it as a short barrel shotgun with two barrels, dark in colour about half a metre in length and held in one hand.  Ms Coaby described it as a double barrel shotgun, sawn-off like half a version of a gun about 40 centimetres in length and dark brown. 

12. The prosecution called two accomplices, Ms Moroney-Gray and Mr Matthew Brusnahan.  Ms Moroney-Gray had already pleaded guilty to and been sentenced in respect of an offence of assisting an offender in relation to the assistance which she had admitted giving to the applicant in driving his vehicle away from the scene of the alleged robbery.  She admitted to selling drugs to Mr Coulthard and Ms Coaby and to making an arrangement to meet them at that location for the purpose of reimbursement for the drugs which had been complained about.

13. Ms Moroney-Gray was previously acquainted with the applicant, knowing him as “Stevie Martin”. 

14. In May 2015 Ms Coaby’s boyfriend, Matthew Brusnahan, lived at the house of a drug dealer named “Jimmy” and Ms Moroney-Gray spent a good deal of time at that house.  Jimmy was her main drug supplier and the supplier of the drugs about which the two alleged victims had complained. 

15. In the hours before the robbery Jimmy was informed of the complaint which the two alleged victims had made and the arrangements for reimbursement.  According to Ms Moroney-Gray, Jimmy was upset and suspicious that she was trying to rip him off.  Jimmy made arrangements for the applicant to go with Ms Moroney-Gray, pick her up and drive her to the meeting.

16. Mr Brusnahan and Ms Moroney-Gray went with the applicant to the area of the car park at Prospect.  They described the vehicle in which they drove to the oval as an older model light champagne coloured VN or VP model Holden Commodore. 

17. Ms Moroney-Gray gave evidence that as soon as they arrived at the scene the applicant got out, pointed a shotgun at the driver and demanded the couple get out of the vehicle.  He then drove from the scene in the stolen gold Commodore while Ms Moroney-Gray drove the other Commodore away from the scene.  They drove to nearby premises of one Anthony Busutill in Prospect and transferred several items of clothing from one vehicle to the other.  They then all left that address in the stolen gold Commodore of the two alleged victims and, after obtaining petrol from a BP service station at Blair Athol, the applicant drove the vehicle away at high speed with a police vehicle in pursuit until the pursuit was called off in the area of Bridge Road at Pooraka. 

18. Both the prosecution witnesses, Ms Moroney-Gray and Mr Brusnahan, testified to having seen the applicant holding a shotgun and pointing it at the Aboriginal couple in the gold Commodore.  Mr Brusnahan said he had seen the applicant in possession of that firearm approximately three to four weeks earlier. 

19. Ms Moroney-Gray said she saw the applicant drop a green shopping bag when she noticed he had a gun in his hand and was pointing it at the Aboriginal couple.  She had seen him in possession of that green hessian shopping bag earlier. 

20. The prosecution case in respect of count 3 was wholly reliant on circumstantial evidence. 

21. Shortly after opening time on Wednesday 3 June 2015 the post office at Para Hills was held up by a man brandishing a shotgun.  His face was covered by a hood and he was wearing dark wrap-around style sunglasses.  He was also seen to be carrying a green fabric shopping bag.  The crime was visually recorded on the CCTV system in the post office.

22. The robber demanded money from the employee present, in the presence of a number of other customers.  He also attempted to kick his way through a staff security door and climb over the service counter.  CCTV footage from outside the post office revealed that there was an accomplice waiting on the outside. 

23. Eye witnesses at the scene gave descriptions of the firearm including that it was a single barrel gun, a quite long cylinder shape, a big gun rather than a handgun and like a sawn-off rifle.

24. In addition to the CCTV footage at the post office, closed circuit security footage was obtained from nearby residential premises at Maves Road, Para Hills.

25. That footage showed a light coloured sedan motor vehicle drive past the premises and out of view. Two men appeared in view from the direction in which the vehicle had disappeared from view and walked together in the direction of the Para Hills post office, which was approximately 80 to 100 metres away.  Some minutes later one man returned from the direction of the Para Hills post office and walked in the direction of where the vehicle had disappeared from view.  A short time later a second man returned from the direction of the Para Hills post office walking in the same direction as the first man had.  The second man was holding a bag. 

26. Later, police conducted a re-enactment of that scene with a VP Commodore motor vehicle known to be associated with the applicant.  The recording which was made under the same conditions seen in the CCTV footage was tendered at trial.

27. The Para Hills post office was forensically examined and eventually a shoe mark impression left on the exterior side of the staff security door which had been kicked in by the robber was subject to expert shoe mark analysis.  The expert expressed an opinion that the shoe mark impression left on the post office door was consistent in terms of size, sole, pattern and general wear with a pair of Nike Air Max shoes found inside premises associated with the applicant.    The Nike Air Max shoes were also visually similar to shoes that had been worn by the applicant on an earlier visit to the Holden Hill Police Station on 11 May 2015 and to shoes worn by the robber as seen in the CCTV footage of the robbery. 

28. The applicant was arrested on 13 June 2015.  At that time he was in company with Anthony Busutill.  The applicant was in possession of two firearms, one of which could be described as an Aguirre y Aranzabal “AYA” (Eibar) brand shotgun (“AYA firearm”).  That firearm had been subject to significant crude modifications of the same kind as described by the applicant in a conversation with a Correctional Services Officer on 7 July 2015 which was recorded by listening surveillance device.  In that conversation the applicant described modifications consistent with the appearance of the AYA firearm located in his possession on 13 June 2015.  Although it was visually distinctly different to the firearm shown in the Para Hills post office CCTV footage, nevertheless it had certain class characteristics inherent to an AYA firearm in its basic unmodified form which were discernible in the Para Hills post office CCTV footage. 

29. A light gold-coloured Commodore motor vehicle located at the rear of Mr Busutill’s premises on 13 June 2015 was used to re-enact the circumstances in which the Commodore vehicle was seen in the Maves Road footage shortly after the robbery at the Para Hills post office on 3 June 2015. 

30. Finally, a pair of sunglasses worn by the applicant in CCTV footage taken at the Holden Hill police station on 25 May 2015 is visually similar to a pair of dark wraparound sunglasses with tapering white arms worn by the robber at the Para Hills post office on 3 June 2015. 

31. The applicant did not give evidence at trial.  The jury convicted the applicant of count 3 and was unable to reach a verdict in respect of counts 1 and 2. 

    Arguments on appeal

32. The applicant’s argument on appeal is that at the very least the failure to order separate trials of counts 1 and 3 has produced a miscarriage of justice exemplified, in the applicant’s submission, by the jury being unable to reach a verdict in respect of both counts 1 and 2. 

33. The applicant’s argument is that the inability to reach a verdict on those counts is an indication that the jury, at the very least, did not accept the two prosecution witnesses, Ms Moroney-Gray and Mr Brusnahan, as witnesses of truth.  In respect of counts 1 and 2, the jury had heard evidence that the applicant was associated with persons of bad character, by inference was an armed enforcer for a drug dealer, was prepared to put the public at risk by avoiding apprehension by the police, was prepared to steal petrol, used false number plates, pointed guns at people, used more than one name and was a person of whom Ms Moroney-Gray had good reason to be frightened. 

34. Moreover, in the applicant’s submission the evidence on count 3 was not cross-admissible on the trial of counts 1 and 2 and trying them together was highly prejudicial to the applicant for those reasons. 

35. In the applicant’s submission, it was inevitable that the jury would be influenced either consciously or unconsciously by the evidence of bad character. In respect of count 3 where the prosecution relied solely on circumstantial evidence which the applicant submitted was not overwhelming, the evidence led in respect of counts 1 and 2 would have left an “indelible smear” on the applicant’s character.  That prejudice could not be cured by any directions from the trial Judge.

    Grounds 1 and 2

36. During the course of the argument on appeal the applicant’s counsel added a submission to include the complaint that count 2 should not have been joined with the trial in respect of count 3, irrespective of whether the trial of counts 1 and 3 were properly joined.  He maintained that submission while at the same time conceding that counts 1 and 3 may have been properly joined.

37. The first observation that I make is that there was no application at trial for severance of the trial of count 2 from the trial of count 1.  In any event, counts 1 and 2 were founded on the same facts. The robbery of the gold Commodore occurred at approximately 6.00 to 6.15 am on the morning of 31 May 2015.  A call was made by one of the alleged victims of the car robbery at about 6.18 am.  A police officer saw the gold Commodore at the BP service station at Blair Athol at around 6.34 am and commenced to pursue it for several minutes until the pursuit was called off.  During that pursuit the gold Commodore was seen travelling through the intersection of Hampstead and Grand Junction Roads at about 6.36 am.  That gold Commodore was later found at an address in Pooraka at premises in which items associated with the applicant were found.  Those items included his passport and some shoes and a jacket, visually similar to items seen worn by the applicant on other occasions. 

38. Counts 1 and 2 were committed less than half an hour apart.  The car which was stolen, being the subject of count 1, was used in the driving which was the subject of the offence of count 2. 

39. The requirements of the former s.278 of the Criminal Law Consolidation Act 1935 are not limited to the elements.  It is plain that counts 1 and 2 were founded on the same or similar facts.  Similarly, with regard to counts 1 and 3, not only were the elements the same for these offences but those two counts were founded on evidence some of which was cross-admissible. 

40. The offences the subject of counts 1 and 3 occurred three days apart.  The primary offence committed on each occasion was an aggravated robbery in which the weapon used was a firearm.  Each of those offences involved the use of a motor vehicle to get away.  In both offences, false number plates or adulterated number plates were used.  In both offences the robber was seen carrying a green shopping bag and adopted some measures to cover his face. 

41. The items of evidence common to both counts were the firearm, the green shopping bag, an association with a light coloured Commodore and the pair of Nike Air Max shoes referred to earlier.  Those items of evidence were cross-admissible on counts 1 and 3. They were critical to the real issue at trial, which was the identity of the offender.

42. For these reasons, the offences charged in counts 1, 2 and 3 are properly characterised as a series of offences of the same or a similar character.  They were therefore properly joined.  Even if the evidence in respect of each count was not wholly cross-admissible on the other counts, the Judge was correct to take the view that any prejudice to the appellant could be cured by appropriate directions.  Furthermore, appropriate directions were given.  There has been no complaint about the directions given by the trial Judge as to the permissible and impermissible uses of each item of evidence adduced in respect of each count. 

43. For these reasons, I would refuse permission in respect of appeal grounds 1 and 2.

    Ground 3

44. I turn now to consider ground 3, that the verdict was unsafe and unsatisfactory. 

45. The principles which apply when considering this ground of appeal are well known and well established and do not need further elucidation[1].  The ultimate question is whether, this Court, after making its own independent assessment of the evidence, thinks that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant in respect of that count. 

    [1]    SKA v The Queen (2011) 243 CLR 400 at [11]-[14], M v The Queen (1994) 181 CLR 487.

46. It has been necessary in considering this ground of appeal, in light of the jury verdicts in respect of counts 1 and 2, to carefully consider the evidence independent of the two accomplices which was led in support of count 3.

47. Earlier in these reasons I referred to some of that evidence which included:

    ·the fact that a week before the robbery the applicant was seen in CCTV footage to be wearing items of clothing visually indistinguishable from items worn by the robber including a pair of Nike Air Max shoes and dark wraparound sunglasses with tapered white arms;

    ·the fact that the applicant could be linked to a Commodore vehicle which was visually indistinguishable from a motor vehicle seen near the post office close to the time of the robbery on 3 June 2015;

    ·the fact that a mobile phone which contained evidence connected to the applicant had received a text message on the day of the robbery saying “fix the plate u can c needs more glue”, when the VP Commodore motor vehicle to which the applicant could be linked bore false, glued on paper registration plates;

    ·the fact that on the same mobile phone as the incoming text message concerning the number plates was evidence of internet searches concerning the Para Hills post office robbery being conducted on the same day as the robbery; 

    ·The evidence which connected the applicant to the mobile phone included:

    o   incoming text messages addressed to “Steve” and “Stephen”;

    o   text messages and a photograph relating to the purchase of the silver SS Commodore on 6 June 2015, the purchaser being a male accompanied by a man who produced a driver’s licence in the name of Anthony Busutill;

    o   an incoming text message referring to the location of a storage facility in Para Hills West where the applicant had leased a storage unit, and 

    o   an outgoing text message referring to “with Candice ATM” (at the moment) when the applicant could be linked to a woman by the name of Candice Owen;

    ·the possession by the applicant of two firearms at the date of his arrest, one of which shared certain characteristics in common with the firearm wielded by the robber;

    ·the fact that the applicant was recorded in conversation with a Correctional Services Officer explaining details of modifications he had made to a firearm consistent with the modifications seen on the AYA firearm found in his possession;

    ·the fact that the shoe mark made by the robber at the Para Hills post office left during the robber’s attempt to kick a door in was indistinguishable from the pattern and sole marks of the Nike Air Max shoes found in the bag in the premises associated with the applicant.

1. The combination of circumstantial evidence which was independent of the two witnesses, Ms Moroney-Gray and Mr Brusnahan, added up to a powerful and compelling circumstantial case against the applicant in respect of count 3.

2. The Judge’s directions to the jury regarding how they were to approach the evidence in respect of count 3, as well as and including the permissible and impermissible use of evidence in respect of each of the counts, were meticulous, repeated and accurate in every respect. 

3. The clear effect of the Judge’s directions was that the jury was not to use any of the evidence of Ms Moroney-Gray or Mr Brusnahan in respect of count 3 unless satisfied of its truthfulness and accuracy beyond reasonable doubt.  There was no complaint about the directions given by the trial Judge.  They were impeccable. 

4. After conducting my own independent assessment of the evidence I am satisfied that based on the evidence alone, which was independent of the accomplices, it was open to the jury to convict the applicant of count 3.

5. In these circumstances I would refuse permission to appeal on all grounds.

   BLUE J:           

6. I agree.

   LOVELL J:

7. I agree.