R v McKeough

Case [2017] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCKEOUGH

[2017] SASCFC 107

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

30 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY

This is an appeal against conviction.

Following a trial in the District Court by Judge alone the appellant was convicted of two counts of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (‘the Act’), one count of attempting to dishonestly manipulate a machine contrary to ss 141(1)(a) and 270A of the Act and two counts of dishonestly manipulating a machine contrary to s 141(1)(a) of the Act.

The appellant advanced two grounds of appeal in respect of the two aggravated robbery charges:

1.  The verdicts were unreasonable and cannot be supported having regard to the evidence; and

2.  The Judge’s reasons were inadequate and do not permit the court to determine how it was that all hypotheses consistent with innocence were excluded.

The primary contention advanced by the appellant is that although he used the proceeds of robbery the evidence did not establish he was the robber.

Held, per Parker J (Kourakis CJ and Nicholson J agreeing) dismissing the appeal:

1.  When the evidence is considered as a whole, it was open to the Judge to be satisfied of the appellant’s guilt beyond reasonable doubt on the basis that his guilt was the only rational inference that could be drawn in the circumstances (at [74]); and

2.  The Judge’s comprehensive analysis of the evidence and findings of fact properly explained the basis for the rejection of the hypothesis that the appellant obtained the stolen bank cards after the robbery (at [82]).

Criminal Law Consolidation Act 1935 (SA) ss 137, 141, 270A, referred to.
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Bank cards", "proceeds of robbery", "circumstantial evidence", "reasonable hypothesis consistent with innocence", "evidence considered as a whole"

R v MCKEOUGH
[2017] SASCFC 107

Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ

  1. KOURAKIS CJ:   I would dismiss the appeal for the reasons given by Parker J.  The prosecution evidence excluded the hypothesis that in the short time available, between the robberies and the appellant’s use of the bankcard taken in one of them, the appellant took the place in the get-a-way vehicle of the robber…

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R v MCKEOUGH [2017] SASCFC 107
Case
[2017] SASCFC 107
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated robbery and related offences. The appellant did not challenge his conviction for three counts concerning the dishonest manipulation of a machine using stolen bank cards, conceding that he was the person depicted in CCTV footage using these cards. However, the primary contention on appeal was that while the appellant admitted to using the proceeds of the robbery, the evidence did not establish that he was the actual robber. The case was heard by Kourakis CJ, Nicholson and Parker JJ.

The central legal issue before the court was whether the verdict of guilt for the aggravated robbery was unreasonable or insupportable, having regard to the evidence presented at trial. This required the court to determine if it was open to the trial judge, sitting alone, to be satisfied beyond reasonable doubt that the appellant was the perpetrator of the robbery, considering the case was based on circumstantial evidence.

The court applied the principles established in High Court authorities such as *M v the Queen* and *Libke v The Queen*, which dictate that an appellate court must consider whether it was open for the fact-finder to be satisfied of guilt beyond reasonable doubt. In a circumstantial case, the court reiterated the fundamental principle that guilt can only be found if the circumstances are inconsistent with any reasonable hypothesis other than guilt. This means the inference of guilt must be the only rational inference, not merely a rational one, and must be based on more than conjecture. The court emphasised that all circumstances must be weighed together, and individual pieces of evidence should not be considered in isolation, as one piece of evidence may resolve doubts arising from another when viewed as a whole.

The appeal was dismissed. The court found that the trial judge had conducted a detailed analysis of the evidence and that it was open for the judge to reject the hypothesis that the appellant only became involved after the robbery. Therefore, the verdict was not considered unreasonable or insupportable.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has not challenged his conviction on the three counts relating to the dishonest manipulation of a machine or the attempt to do so. Thus, the appellant concedes in this appeal that he committed those three offences and was the person depicted in the relevant closed circuit television (CCTV) footage who used, or attempted to use, the bank cards stolen in the aggravated robbery soon after it had occurred. The primary contention advanced by the appellant is that although he had used the proceeds of the robbery (i.e. the bank cards) the evidence did not establish that he was the robber.Background At about 4.45 pm on 28 May 2015 two employees of the People’s Choice Credit Union, a Ms Lindop and a Mr Boniface, were working in the credit union office at Modbury. A man holding a meat cleaver and with a beanie pulled down over his face with eye holes cut in the material entered the office through the front sliding doors. The man was also wearing a yellow and blue high visibility long sleeved collared shirt. A few minutes before the robber entered the premises Ms Lindop had noticed a man pause at the entrance to the credit union and then walk away. He was described by her as having “… slunk up sideways … peered in and seemingly ran off”. This man was also wearing a high visibility shirt although the CCTV images suggest that the shirt had short sleeves. He also wore a white or light coloured baseball cap with a logo. The prosecution alleged that this lurking man was the same person who, not long after being seen outside, entered the credit union with the meat cleaver. Ms Lindop saw the man with the meat cleaver enter the premises and move towards her office. Despite her resistance, he forced his way into her office. He then lifted the beanie so as to expose his face briefly and said “give me your cash”. Ms Lindop described the robber to police about 90 minutes after the robbery as being of similar height to her (5’5½” to 5’6”), quite solidly built, with a very open stance, of Aboriginal appearance, having brown eyes and distinctive eyebrows, which were large and thick, slight stubble, slim lips, a slim nose and possibly short dark hair. Ms Lindop told the robber that the office was only an advice centre and no cash was kept on the premises. He then ransacked the cupboards and took her computer bag. It contained her lap top charger and a Telstra brand dongle, i.e. a device used to gain remote internet access. This action was the subject of the first count of aggravated robbery. The man then left Ms Lindop’s office and went to that occupied by Mr Boniface, whom had previously been on the telephone. The man demanded Mr Boniface’s wallet. He handed it over. It contained about $5.00 in cash, Mr Boniface’s drivers licence, a People’s Choice Credit Union card, a Westpac card and a Medicare card. This was the subject of the second count of aggravated robbery. The man then left the premises. Mr Boniface did not see the man’s face and was only able to give a general description of his clothing and appearance.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would dismiss ground 2.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The respondent also submits that there is no basis for the appellant’s complaint that the Judge failed to give adequate reasons for excluding the possibility that the appellant had only become involved sometime after the robbery. His Honour’s finding was preceded by the detailed analysis set out at paragraphs [129] to [154] of his reasons. It was the finding of those facts beyond reasonable doubt which had led the Judge to reject as a reasonable hypothesis the suggestion that the appellant only became involved after the robbery.ConsiderationGround 1 - unreasonable verdict The appellant contends that the state of the evidence at the conclusion of the trial was such that the Judge could not have been satisfied beyond reasonable doubt that the appellant was the robber. The test to be applied in determining whether a verdict is unreasonable was stated by the High Court in M v the Queen as follows: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.[5][5] (1994) 181 CLR 487 at [493], Mason CJ, Deane, Dawson and Toohey JJ. In Libke v The Queen Hayne J (with Gleeson CJ agreeing) put the question as follows:But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained the doubt about the appellant’s guilt.[6][6] (2007) 230 CLR 559 at [113]. While those authorities referred to appeals from jury verdicts, the same principles must be applied where a trial has been conducted by a judge sitting alone. In addition to those general principles, it is of central importance that this case was based upon circumstantial evidence. The Judge correctly stated the principles to be applied in such cases. The key principles are as follows. 1.The fundamental principle is that appellant could not validly be found guilty unless the circumstances were inconsistent with any reasonable hypothesis other than his guilt.[7] It was not only necessary that the guilt of the appellant was a rational inference but it must also have been the only rational inference that could be drawn in the circumstances.[8]2.When considering a circumstantial case, is necessary to consider and weigh all of the circumstances established by the evidence so as to decide whether there is an inference consistent with innocence reasonably open on the evidence.[9]3.An inference will only be reasonable if it is based upon something more than mere conjecture.[10] The whole of the evidence must be weighed and considered. In undertaking this task the jury (or a judge sitting alone) should not strain credulity or engage in tortuous reasoning so as to explain away every individual fact or circumstance as being consistent with innocence.[11]4.When some evidence is considered in isolation from other evidence it may suggest an inference compatible with innocence. However, a circumstantial case must not be considered piecemeal.[12] As The High Court noted in Chamberlain v The Queen (No 2):At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence... [13][7] Peacock v The King (1911) 13 CLR 619.[8] Plomp v The Queen (1963) 110 CLR 234.[9] Shepherd v The Queen (1990) 170 CLR 573.[10] Peacock v The King (1911) 13 CLR 619.[11] R v Micallef [2002] NSWCCA 480.[12] R v Hillier (2007) 228 CLR 618 at [48].[13] (1984) 153 CLR 521 at 535.