R v McKeough - [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

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 who looked like him, wore similar clothing to him, and was willing to give up the proceeds of the robbery to him, before slipping away without trace. The prosecution evidence also excluded the hypothesis that the appellant was an innocent passenger in the vehicle whilst it was parked outside the Credit Union when the robberies were committed but was nonetheless fortunate enough to receive the proceeds of robberies in which he had played no part. The Judge’s reasons adequately set out the facts and the reasoning by which the hypothesis that a third person was the robber was excluded and the appellant’s guilt inferred. Just as the term beyond reasonable doubt is incapable of greater elaboration, so too is the explanation of why a particular combination of circumstances satisfies one person of an accused’s guilt but not another.
NICHOLSON J: I would dismiss the appeal for the reasons given by Parker J. I agree with the additional observations of the Chief Justice.
PARKER J: 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 (SA), one count of attempting to dishonestly manipulate a machine contrary to s 141(1)(a) and s 270A of that Act and two counts of dishonestly manipulating a machine contrary to s 141(1)(a).
Two grounds of appeal have been advanced. The first ground is that the verdicts in respect of the two aggravated robbery charges were unreasonable and cannot be supported having regard to the evidence. The second ground is that the trial Judge’s reasons in relation to the two aggravated robbery charges are inadequate and do not permit the Court to determine how it was that all hypotheses consistent with innocence were excluded in respect of the aggravated robbery counts.
The appellant seeks orders that the verdicts on the aggravated robbery counts be quashed and that he be acquitted or, alternatively, retried.
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.
Between 5.01 pm and 5.04 pm on 28 May 2015 an attempt was made to use the bank cards taken from Mr Boniface’s wallet in an automatic teller machine located at a Caltex service station in Clearview. That conduct was the subject of count 3, being the attempt to dishonestly manipulate a machine. As I have said, the appellant has conceded in this appeal that he was the person who attempted to use the bank cards taken from Mr Boniface.
The cards were then used at about 5.27 to 5.30 pm on 28 May 2015 to withdraw money from a Bendigo Bank ATM at the Northpark Shopping Centre at Prospect. This was made possible because Mr Boniface had left the PIN number for the bank cards in his wallet. The withdrawals were the subject of counts 4 and 5. The appellant has conceded that he used the bank cards.
The Northpark Shopping Centre is about 12.2 kilometres from the credit union office at Modbury. The Clearview service station is located about equi-distant from the Northpark Shopping Centre and from the credit union office, i.e. a little over six kilometres from each.
The CCTV footage from the Clearview service station depicted a distinctive green coloured Toyota Lexcen station wagon with a certain registration number pulling up at the service station. It is conceded that the appellant was the passenger who emerged from the front seat of the vehicle and attempted to use Mr Boniface’s bank card. Footage from the Northpark Shopping Centre depicted the appellant using an ATM. He was dressed in a black Nike brand t-shirt and a white or light coloured baseball cap with a logo. That clothing was similar to that he had worn at the Clearview service station.
The police established that the Toyota Lexcen was connected to a Chris Fieldhouse. His house and the Toyota parked there were searched by police. The police found the dongle taken from Ms Lindop inside the house. Mr Boniface’s Medicare card was found when the Toyota was searched after being transported on a tow truck to a police facility. The police also found at that time a meat cleaver under the front passenger seat and two high visibility shirts in the rear footwell on the driver’s side of the vehicle.
The next day the police went to a caravan park at Semaphore. The appellant was seen to enter a cabin. The police seized a number of items from the cabin including a black Nike brand t-shirt of the type worn by the appellant at the Clearview service station and the Northpark Shopping Centre. The police also seized a white baseball cap with a logo that was similar to that seen on the man in the CCTV footage outside the credit union and also a pair of black trousers that were said to be similar to those worn by the robber.
DNA samples were taken from both the appellant and Mr Fieldhouse. Analysis revealed that the DNA on the black Nike t-shirt and on the white cap matched that of the appellant. DNA found on the short sleeved high visibility shirt matched that of Mr Fieldhouse. However, the DNA samples obtained from the long sleeved high visibility shirt and from the meat cleaver found in the Toyota were too complex to be analysed effectively. No finger print evidence was obtained.
The prosecution case
Based on the preceding facts the prosecution alleged that there was a joint enterprise between two men to rob the credit union. It was alleged that the man who entered the premises carrying the meat cleaver was the appellant. The prosecution also alleged that the driver of the Toyota Lexcen was likely to be Mr Fieldhouse.
In support of those contentions the prosecution pointed to the use of Mr Boniface’s bank cards at the service station some 15 minutes after the robbery by a person whom the prosecution alleged was clearly the appellant (which is now conceded), dressed in clothing similar to some of that worn by the robber. According to the prosecution case, a further 20 or so minutes later the same person (i.e. the appellant) used the stolen bank cards in an ATM at the Northpark Shopping Centre in the company of a person resembling Mr Fieldhouse. These facts, when combined with the discovery by the police of the dongle, high visibility shirts, meat cleaver and the Medicare card at Mr Fieldhouse’s residence or in the Toyota, together with the discovery of clothing similar to that worn by the robber in the cabin that the appellant had entered, pointed inevitably to him being the robber.
Analysis by the trial Judge
The trial Judge referred to the principles that must be applied when the prosecution case is based upon circumstantial evidence. Although there was no positive identification evidence, out of an abundance of caution, his Honour warned himself that for several reasons it was necessary to weigh and assess with particular caution the evidence given by Ms Lindop about the facial features of the robber. The reasons that led his Honour to administer that warning were that the robbery would have had an unsettling effect upon Ms Lindop, her observations were of short duration, she had a restricted opportunity to make observations and those observations were made in the course of a forceful struggle with threats of violence. His Honour also referred to the fact that Ms Lindop had selected a person other than the appellant as the robber from a photo display.
In addition to the warnings about the circumstantial identification evidence given by Ms Lindop, the Judge warned himself that he must exercise the same caution in respect of the CCTV footage and other photographic evidence and be aware of the danger that his consideration might be influenced by suggestibility and the displacement effect.[1] His Honour administered 10 other warnings to himself covering the matters that would routinely be the subject of directions to the jury in a case such as this. No issue has been taken as to the adequacy of the warnings.
[1] Domican v R (1992) 173 CLR 555.
The parties agreed a series of facts in relation to DNA evidence, including those found by Judge Millsteed in R v Hillier and Reilly.[2] Those matters are not in issue in this appeal.
[2] [2015] SADC 77 at [27]-[37].
It is convenient to reproduce in their entirety the findings made by the Judge with respect to counts 1 and 2, i.e. the aggravated robbery charges. Before doing so I note that the Judge specifically stated that when he used the words “satisfied”, “accept” or “find” he meant that he did so beyond reasonable doubt. Save for the complaint that the Judge did not have a proper basis to reject the hypothesis that the appellant may have obtained the stolen bank cards from an unidentified third man, his Honour’s findings have not been challenged as such. It is the conclusions drawn by his Honour from those findings that the appellant challenges.
The Judge’s findings were as follows:
Count 1
[129]I am satisfied that shortly before the robbery a person approached the entrance to the Credit Union premises and that at the time this man was wearing a light or white coloured baseball cap with a logo on it, a yellow/blue high visibility top, dark coloured trousers and shoes.
[130]I am satisfied that not long thereafter a person wearing a similar colour and style of top and similar coloured trousers and shoes entered the Credit Union at approximately 4:45 pm on 28 May 2015 armed with a silver coloured stainless‑steel, wooden handled meat cleaver.
[131]I am satisfied that he was carrying the meat cleaver in his left hand.
[132]I accept, as accurate, the description of the man’s height given by Ms Lindop, namely that of a person of approximately five foot four to five foot six. On the issue of his height, I also accept the evidence of Mr Boniface.
[133]I am also satisfied that Ms Lindop’s description (which she gave to the police) of the robber, namely that of a man, aboriginal, medium build, short, dark hair, slim nose, slim lips, round face and prominent dark [thick] eyebrows was both credible and reliable.
[134]I am satisfied that during the robbery this man stole a number of items included among which were a dongle belonging to Ms Lindop and a Medicare card and credit cards belonging to Mr Boniface.
[135]I accept the evidence of Sergeant Agostino that the robbery was reported to the police at 4:50 pm.
[136]If these facts constituted the only evidence against the accused, although it is possible to conclude that the accused committed the robbery, I could not conclude beyond reasonable doubt that he did rob Ms Lindop.
[137]However, I have also had regard to the following evidence as pieces of circumstantial evidence to assist me in my consideration of the charge against the accused on count 1.
[138]Lest there be any uncertainty, I repeat what I said earlier, namely that in what follows in relation to these facts, if I use the words ‘satisfied’, ‘accept’ or ‘find’ I intend to mean beyond reasonable doubt.
[139]It is an Agreed Fact, and I am therefore satisfied, that Mr Boniface’s credit cards were used at the Clearview Caltex Service Station ATM between 5:01 pm and 5:04 pm on 28 May 2015.
[140]I accept that the distance between the Credit Union premises in Modbury and the Northpark Shopping Centre, Prospect is some 12.2 kms and that the Caltex Service Station at Clearview is both approximately equi-distant between the two and accessible from the Credit Union premises by a relatively direct route.
[141]I also accept the evidence of Sergeant Agostino that the accused used his left hand to sign his name at the police station.
[142]I am satisfied that the CCTV footage at the Clearview service station depicts the following things:
·     the Toyota pulling into the Caltex Service Station;
·     a man in a white baseball-style cap and dark T-shirt in the passenger seat of the Toyota;
·     a man in a similar style white baseball-style cap, dark T-shirt (now both identifiable as a Nike brand) and dark trousers emerging into ‘camera shot’ from the vicinity of the Toyota;
·     that same man enter the Clearview Caltex Service Station shop;
·     that man in his white baseball-style Nike cap, Nike T-shirt and dark trousers use or attempt to use the ATM in the shop;
·     that man use his left hand when so doing;
·     that the time stamps on the CCTV footage depicting that man attempting to use the ATM record a time range of 4:58 pm to 5:02 pm.
·     that man leave the shop and approach the vicinity of the Toyota before disappearing from view.
[143]Exhibit P11 depicts the face of that man dressed in his white baseball cap, Nike T-shirt and black trousers entering the Caltex shop.
[144]As I said earlier, I studied the CCTV footage plus the still images of this man carefully and compared these images with the accused in the dock.
[145]I am satisfied that the man, depicted in the CCTV footage and still images taken at the service station and in the shop and of him using or attempting to use the ATM, is the accused. In so saying, I intend to convey that I am also satisfied that the man in the passenger seat, as the Toyota enters the service station, is the accused.
[146]I am satisfied that Mr Boniface’s Westpac bankcard was used that afternoon (at the Bendigo Bank ATM at the Northpark Shopping Centre at Prospect) at 5:27 pm and that CCTV footage (the date time and stamps of which are agreed to be accurate) depicts a man dressed in a white baseball Nike cap, black Nike T-shirt and dark trousers appearing to use this ATM at about 5:30 pm. I am satisfied that this is the same man who is depicted in the Caltex Service Station footage, namely the accused.
[147]This CCTV footage, which I am satisfied also depicts the accused using his left hand, also shows a second man, whom I note bears at least a general resemblance to the photo of the man Mr Fieldhouse, seen in exhibit P25.
[148]I am satisfied that the Toyota shown in the CCTV footage at the Clearview Caltex Service Station is the vehicle found at the premises occupied by Mr Fieldhouse.
[149]I accept that a search of Mr Fieldhouse’s premises, revealed a Telstra-brand dongle belonging to Ms Lindop and a high visibility shirt with DNA matching that of Mr Fieldhouse.
[150]I accept that a search of the Toyota disclosed a short-sleeved, yellow, high visibility shirt with DNA matching that of the accused, Mr Boniface’s Medicare card and a meat cleaver (which was retrieved from underneath the front passenger seat) with a blade which had a curve and was of a colour as described by Ms Lindop and Mr Boniface.
[151]I am satisfied that a subsequent search of a cabin seen to be entered by the accused revealed a white Nike baseball cap and a black Nike T-shirt both with DNA on them matching that of the accused.
[152]In summary, and having regard to the circumstantial evidence in its entirety on this count, I am satisfied as to the following matters, namely that the two victims (particularly Ms Lindop) gave descriptions, of the person who committed the robbery, in terms which generally correspond with the accused. The robbery occurred at about 4:45 pm. The man used a meat cleaver which he carried in his left hand during the robbery.
[153]I am also satisfied that thereafter the accused is depicted in the Toyota at a Caltex Service Station a relatively short distance (using a readily accessible route) from the scene of the robbery and subsequently is shown using a credit card or cards at the ATM in the Caltex shop. An attempt was made to use Mr Boniface’s credit card at this service station ATM at around 5:00 pm. I accept that there is no evidence as to whether the time stamps on the CCTV footage from the Caltex Service Station shop (which depict a time of around 5:00 pm when the accused is seen to use the ATM) are correct. The accused is also depicted in CCTV using a credit card at the Bendigo Bank ATM at the Northpark Shopping Centre at around 5:30 pm in the company of a man bearing at least a passing resemblance to Mr Fieldhouse. Northpark Shopping Centre is itself accessible from the Caltex Service Station at Clearview by a relatively direct route. Two withdrawals are recorded as having been made on Mr Boniface’s credit card from the Bendigo Bank ATM at the Northpark Shopping Centre at 5:27 pm. CCTV footage at the Caltex Service Station depicts the accused as the person in the passenger seat of the Toyota in which Mr Boniface’s Medicare card and a meat cleaver were later found (the latter under the seat where the accused was sitting), together with similar looking high visibility tops to the one worn by the robber, one of which (albeit a short sleeve top) disclosed DNA correlating to that of the accused. Finally, clothing, in the form of a Nike cap and T-shirt (with DNA on them matching that of the accused) and trousers similar to that being worn by the accused in both the CCTV footage and still images, was found in a cabin he entered shortly before being arrested.
[154]Against the background of the aforementioned facts which I am satisfied the prosecution has proven beyond reasonable doubt, I make the following findings:
1.    On 28 May 2015 a man dressed in a white cap, yellow high visibility top, dark trousers and shoes approached the People’s Choice Credit Union at Modbury.
2.    A short while later, at approximately 4:45 pm that day, the same man, whilst armed with a meat cleaver, took a laptop computer bag, laptop charger and internet dongle from an office occupied by Ms Lindop at the premises of People’s Choice Credit Union, Modbury.
3.    In taking these items the man acted dishonestly.
4.    When taking these items he was acting without the consent of Ms Lindop.
5.    At the time he took the items he intended to permanently deprive Ms Lindop of the items.
6.    The man who took these items used force to enable him to take them.
7.    The force was used immediately before he took the items when he threatened Ms Lindop with the meat cleaver.
8.    The man who took the items from Ms Lindop by force was the accused.
[155]I have given consideration as to whether, this being a circumstantial case, there is a reasonable hypothesis consistent with the innocence of the accused.
[156]There can be no doubt, in my view, that it is the accused who is depicted at the Caltex Service Station shop using the ATM. Despite the absence of any agreement as to the accuracy of the time stamps on the CCTV footage, on the whole of the evidence, I am satisfied the accused is depicted using a credit card at the Clearview Caltex shop at the same time as Mr Boniface’s card was being used, namely at around 5:00 pm. I am also satisfied that it is the accused who is shown using Mr Boniface’s credit card to withdraw money from the Bendigo Bank ATM at Northpark at around 5:30 pm.
[157]I reject any possibility that the accused did not take part in the robbery but then somehow, within a very short time thereafter, came into possession of stolen credit cards.
[158]I am therefore satisfied beyond reasonable doubt that the accused committed the offence of aggravated robbery of Ms Lindop and is guilty on count 1.
Count 2
[159]I recognise that each count needs to be considered separately. Nevertheless, I have, in general terms, had regard to the same evidence in relation to count 2 as I did in relation to count 1 and, in particular, on the issue of whether the accused was the man who robbed Mr Boniface. I have done so because, in my opinion, that evidence is relevant to the background and surrounding circumstances giving rise to the charge in count 2. As such, it is unnecessary to repeat the facts as to which I am satisfied.
[160]In relation to count 2 I make the following findings:
1.    On 28 May 2015 a man dressed in a white cap, yellow high visibility top, dark trousers and shoes approached the People’s Choice Credit Union at Modbury.
2.    A short while later, at approximately 4:45 pm that day, the same man, whilst armed with a meat cleaver, took a wallet containing credit cards, a driver’s licence, $5 cash and a Medicare card from Mr Boniface at the offices of People’s Choice Credit Union at Modbury.
3.    In taking these items the man acted dishonestly.
4.    When taking these items he was acting without the consent of Mr Boniface.
5.    At the time he took these items he intended to permanently deprive Mr Boniface of these items.
6.    The man who took these items used force to enable him to take these items.
7.    The force was used immediately before he took the items when he threatened Mr Boniface with the meat cleaver.
8.    The man who took these items from Mr Boniface by force was the accused.
[161]For the reasons articulated in relation to count 1, I am satisfied that there is no reasonable hypothesis consistent with the accused’s innocence on this charge. I am therefore satisfied beyond reasonable doubt that the accused committed the offence of aggravated robbery of Mr Boniface and is guilty on count 2.
[footnotes omitted.]

The Judge commented in a footnote that although there was no evidence as to the appellant’s height, based on his observations of the appellant as he moved to and from the dock over several days he was satisfied that he was a relatively short man in the order of the height estimated by Ms Lindop, i.e. 5 foot 4 inches to 5 foot 6 inches. His Honour also commented that based on his observations of the appellant he was satisfied that the description of the robber provided by Ms Lindop was an accurate, albeit general, description of the appellant’s facial features and appearance.
The appellant’s submissions
The appellant acknowledges that he was guilty of using, or attempting to use, the bank cards stolen in the robbery. However, he contends that the Judge erred in failing to find that there was a reasonable hypothesis consistent with his innocence of the robbery. That hypothesis being that another person could have been the robber and the appellant simply came into possession of the cards after the robbery. In support of that contention the appellant made submissions in relation to several specific aspects of the circumstantial case that lead to his conviction.
The appearance of the robber
The appellant refers to the fact that the CCTV footage taken at the credit union shows the robber to be a male of slim to medium build who was wearing dark trousers, a yellow and dark coloured high visibility shirt with long sleeves with an item of clothing over his head. He was armed with a meat cleaver which he generally carried in his left hand but was shown to be holding the cleaver in his right hand in one photograph. The appellant stresses that the quality of the CCTV footage is not sufficiently clear to allow for the observation of fine detail. For that reason the items seized by the police and those shown in the footage cannot be conclusively compared.
The lurking man
Ms Lindop saw a man at the door of the credit union about 15 minutes before the robbery. The man appeared to hesitate and then walk away. Her evidence was supported by the CCTV footage. This evidence was said by the prosecution to be important because of the similarity in clothing between the man seen outside, and that worn by the robber. The lurking man wore a light coloured or white cap and a white cap was found in the possession of the appellant. However, the appellant emphasises that the CCTV footage shows that the lurking man wore a short sleeved shirt whereas that worn by the robber was long sleeved. For that reason the appellant submits that the Judge erred in finding that the robber was wearing “a similar colour and style of top” to the lurking man.
The appellant also notes that Ms Lindop was not asked to compare the appearance of the lurking man to that of the robber. The appellant submits that because one shirt was short sleeved and the other long sleeved and also because of the limited usefulness of the CCTV footage it was not safe to conclude that the lurking man and the robber were the same person.
Identification evidence
The appellant observes that the descriptions of the robber given by Mr Boniface and by Ms Lindop were very general. To the extent that her description referred to specific details of the robber’s face, the details were expressed in subjective terms, i.e. that he had a “slim” nose and so forth. The appellant submits that the value of Ms Lindop’s description was weakened by the fact that five days after the robbery she selected another man as the robber from those shown in a photo board. That man had a noticeably different appearance to the appellant. The appellant submits that if it is accepted as a reasonable possibility that the robber looked like the man identified by Ms Lindop, rather than the appellant, then he must be acquitted.
The appellant also submitted that the Judge erred in finding that the selection by Ms Lindop of the wrong person from the photo display did not meaningfully detract from the rest of her evidence.
Left handedness
The police evidence was that the appellant signed with his left hand. The Judge also found that the appellant had used his left hand when operating both of the ATM machines. The prosecution relied on the fact that the robber mostly carried the meat cleaver in his left hand. However, the appellant points to the fact that the robber is shown on the CCTV footage as performing some tasks with his right hand, eg the opening of doors and the taking of Mr Boniface’s wallet. The appellant suggests that the prosecution submission that the robber was left handed assumes that the robber would carry the weapon in his dominant hand and perform all other tasks with his non-preferred hand. However, the appellant contends that it is equally arguable that the robber would use his dominant hand to open, push and take.
The finding of the meat cleaver
The appellant has observed that the finding by the police of a meat cleaver under the front passenger seat of Mr Fieldhouse’s Toyota the day after the robbery may have heightened suspicion that he was the robber. The basis for that suspicion would be that the appellant had been in the front seat at the service station some 15 minutes after the robbery. However, the appellant refers to an admission by a police witness that items might have moved around in the vehicle before it was searched. The Toyota had been placed by the police on a truck and moved to a police depot where the search was conducted.
The appellant also suggests that it is not far-fetched to imagine that the robber may have placed the cleaver under the front passenger seat before leaving the vehicle. The appellant may have subsequently got into the vehicle on the way to the service station without being aware that the cleaver had been left beneath the seat that he occupied.
The high visibility shirts
The police found one long sleeved and one short sleeved blue and yellow high visibility shirt in the rear of Mr Fieldhouse’s Toyota. A third high visibility shirt was found inside Mr Fieldhouse’s house. The evidence of Mr Boniface was that the shirt worn by the robber displayed a distinctive blue motif on the chest. However, none of the three shirts seized by the police displayed that motif. The appellant complains that the Judge erred in finding that Mr Boniface was mistaken in his description of the high visibility shirt as displaying a motif on the chest. The basis for that finding by the Judge was that the robbery took place in a highly charged atmosphere and lasted a matter of moments.
Clothing located in the cabin
The appellant acknowledged in his submissions that the black Nike t-shirt seized by the police from the cabin that he occupied was identical to that he had worn at the Clearview service station. That was also the case with the white Nike cap. However, while the dark trousers found in the cabin were broadly consistent with those worn by the robber, the appellant submits that the poor quality of the CCTV image would allow a vast range of dark coloured trousers to be equally consistent.
The appellant also contends that although the white Nike cap had been used by the prosecution to connect the appellant with the lurking man, the quality of the CCTV footage was not sufficient to permit that connection to be made.
The appellant also notes that there was no suggestion made at the trial that there were only two occupants in Mr Fieldhouse’s car when it arrived at the Caltex service station.
There was also no evidence that the period of time between the robbery and the appearance of the appellant at the Caltex service station in company with Mr Fieldhouse was not sufficient for the appellant to have entered Mr Fieldhouse’s car during the journey. Furthermore, only Mr Fieldhouse had been found in possession of any of the items that had been stolen during the robbery.
The appellant further submits that there would be very sound reasons why the robber, who had exposed his face to Ms Lindop, might choose not to attend at a service station where the use of CCTV security cameras was well known.
For these reasons the appellant submits 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.
At paragraph [157] of the judgement the Judge had rejected the possibility that the appellant did not take part in the robbery but had somehow come into possession of the stolen credit cards a “very short time” after the robbery. The appellant submits that the “very short time” referred to by the Judge was actually about 15 minutes. During that time the bank cards had travelled about six kilometres from the scene of the robbery to the Caltex service station. The appellant submits that it was necessary for the Judge to explain his reasons for rejecting the defence hypothesis that the appellant had come into possession of the cards after the robbery. The appellant submits that the reasons stated by the Judge were not adequate in that respect.
The respondent’s submissions
The respondent contends that this Court must consider whether, on the whole of the evidence, it was open to the Judge to be satisfied beyond reasonable doubt of the guilt of the appellant.[3] The issue is whether the Judge must, rather than might, have entertained a doubt about guilt. It is not sufficient for the appellant to show that there was material which might have been taken by the Judge to preclude him from being satisfied beyond reasonable doubt.[4] The respondent further submits that this Court cannot disregard the fact that the Judge had the primary responsibility of determining guilt or innocence and also the fact that his Honour had the benefit of seeing and hearing the witnesses.
[3] M v The Queen (1994) 181 CLR 487 at 492-493; Jones v The Queen (1997) 191 CLR 439 at 450-451.
[4] Libke v The Queen (2007) 230 CLR 559 at [113].
The respondent submits that the conclusions reached by the Judge were made against the background of his Honour having summarised the evidence, stated his conclusions about the reliability of relevant witnesses, having studied the CCTV footage and the appearance of the appellant (as depicted in images taken after his arrest on the day following the robbery and also his appearance during the trial), having directed himself as to the relevant legal principles and considered the submissions made on behalf of the appellant.
The only specific complaint made by the appellant about the factual findings made by the Judge is the submission that his Honour erred in finding that the robber was wearing “a similar colour and style of top” as the lurking man. The respondent submits that the finding that the shirts worn by the lurking man and the robber were similar in colour and style was plainly open to the Judge. That conclusion was important because the appellant had access to both long and short sleeved shirts similar to that worn by the robber and the lurking man.
The respondent submits that the appellant’s complaint that it was not safe to conclude that the lurking man and the robber were the same person was based upon only part of the evidence, i.e. the deficiencies in the CCTV footage and the fact that one wore a long sleeved shirt and the other a short sleeved shirt. It is necessary to consider the entirety of the evidence, not simply part of it. There was much evidence to support the conclusion that the lurking man and the robber were the same person.
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.
Consideration
Ground 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.
While it is of importance not to consider the circumstances in a piecemeal fashion, it remains necessary to examine the complaints made by the appellant about the approach of the Judge to discrete elements of the evidence.
I consider that the Judge had proper grounds for his findings that the error made by Ms Lindop in making a selection from the photo display did not meaningfully detract from the rest of her evidence and that he should not place any weight on that error. His Honour referred at some length to Ms Lindop’s evidence that she had been traumatised by the robbery and was overwhelmed by looking at the photographs. In light of Ms Lindop’s evidence about the circumstances surrounding her viewing of the photographs, his Honour also found that she may well have felt an unconscious pressure to make a selection. Most importantly, Ms Lindop made clear in her evidence that she was not sure that her selection was correct. She described her selection as a “possible” identification and also stated that any of the persons shown in the photo display could have been the robber. I therefore consider that the Judge had proper grounds to reject as a reasonable possibility a suggestion that the man selected by Ms Lindop looked like the robber. In reaching that conclusion his Honour also relied upon the description of the robber given by Ms Lindop to the police about 90 minutes after the robbery. Thus, the appellant’s contention that the identification of the wrong person was exculpatory must be rejected.
It is clear that Mr Fieldhouse was not the robber. The photograph of Mr Fieldhouse received in evidence showed that he clearly did not fit the description given by Ms Lindop to the police.
I also reject the appellant’s contention that the Judge had no tangible reason to discount the evidence given by Mr Boniface that the high visibility shirt worn by the robber bore a distinctive blue motif on the chest. His Honour gave a specific reason for discounting Mr Boniface’s evidence, i.e. he was mistaken because the robbery took place in a highly charged atmosphere and lasted a matter of moments. That conclusion was open to his Honour after having seen and heard Mr Boniface give evidence.
The appellant contends that the Judge’s conclusion that the lurking man and the robber were the same person was not safe. He submits that the Judge erred in finding that the robber and the lurking man were wearing “a similar colour and style of top”. The appellant also points to the fact that Ms Lindop was not asked to compare the appearance of the lurking man to the robber and refers to the inadequacy of the CCTV footage showing the lurking man.
As I have already observed, it is necessary to look at the totality of the evidence. The unusual behaviour of the lurking man outside the credit union not long before the robbery together with the wearing of similar clothing to the robber was evidence upon which the Judge could find that the robber and the lurking man were the same person.
It was also open to the Judge to infer that the appellant had access to both long sleeved and short sleeved high visibility shirts. The starting point for that inference was the presence of the appellant in Mr Fieldhouse’s car soon after the robbery. The next day the police found in that car a short sleeved and a long sleeved high visibility shirt.
The short sleeved shirt carried DNA which matched that of the appellant while the long sleeved shirt had a mixed DNA profile that was too complex to analyse. However, the DNA evidence did not exclude the possibility that the appellant had worn the long sleeved shirt.
There was also evidence to support an inference that the appellant was the lurking man. The latter wore a white or light baseball cap with a logo and dark trousers and some 15 minutes after the robbery the appellant also wore a white or light baseball cap with a logo and dark trousers.
I consider that it was open to the Judge to find that the robber was left handed because he mostly held the meat cleaver in his left hand but used his right hand for some other tasks. It is reasonable to infer that a robber would mostly hold his weapon in his dominant hand, particularly a weapon that is dependent upon physical force for its use, such as a meat cleaver. The finding that the robber was left handed was properly part of the circumstantial case against the appellant (who is left handed).

The appellant has correctly observed that there is no direct evidence of how the robber made his getaway from the credit union or whether that was done alone or in the company of others. However, I consider that the circumstantial evidence in support of the conclusion that the robber must have fled the scene in Mr Fieldhouse’s car was compelling. A motor vehicle must have been used to travel the approximately six kilometres from the credit union to the Clearview service station in about 15 minutes and then to travel a similar distance to the Northpark Shopping Centre in about 20 minutes. Mr Fieldhouse’s car was present at both the service station and the shopping centre. An occupant of the car (i.e. the appellant) had possession of the bank cards stolen in the robbery. The next day clothing consistent with that worn by the robber and by the lurking man (i.e. the long sleeved and short sleeved high visibility shirts) together with a meat cleaver and property stolen in the robberies (i.e. Mr Boniface’s Medicare card and Ms Lindop’s dongle) were found in Mr Fieldhouse’s car and home.
The appellant complains that it had not been suggested at the trial that there were only two occupants in Mr Fieldhouse’s car when it arrived at the Caltex service station. However, I also note that there was no direct evidence of the presence of a third person in the vehicle nor is there any evidence to suggest as a real possibility that a third person was present. In that light, and having regard to the matters referred to in paragraphs [67] to [71] below I consider that it was open to the Judge to reject as a reasonable possibility that there was a third person in the vehicle.
The appellant has contended that there was no evidence to establish that the time between the robbery and the appearance of the appellant at the service station was not sufficient for the appellant to have become involved in the interim period. While that point is correct, the likelihood of that having occurred was simply a consideration to be weighed with all other relevant evidence. It cannot be considered in isolation.
The appellant has also suggested that there are very sound reasons why the robber who had exposed his face to Ms Lindop might choose not to attend at a service station where it is well known that CCTV is used routinely. That suggestion is not lacking in merit. However, there is also substance in the respondent’s observation that if the robber was a third man he must have understood that he may be filmed on CCTV if he left the car to use the ATM but was not concerned that his image would be recorded on the CCTV at the credit union. The respondent has also observed that this third man apparently must not have expressed his concerns about CCTV coverage at the ATM sites to either the appellant or Mr Fieldhouse. Once again, these countervailing suggestions and contentions are matters that must be weighed with all other relevant evidence.
That observation also applies to the respondent’s submission that there was no third man because of the unlikelihood that, after having taken the risks involved in the robbery, he would give to the appellant the only property stolen in the robbery that had any real value (i.e. Mr Boniface’s bank cards and PIN) even though the appellant had not put himself at any risk to obtain that property. The fact that Mr Fieldhouse subsequently came into possession of the cards is of no moment.
The assessment of the likelihood of an unidentified third man being the robber must also take account of the need for that person to have shared a number of characteristics with the appellant. It would have been necessary for the robber and the appellant both to fit the same moderately detailed description given by Ms Lindop. The third man must also have preferred to hold a weapon in his left hand. While a third man may have had access to high visibility tops (as there were two in Mr Fieldhouse’s car) he would also have needed to have worn similar dark trousers at the same time as the appellant.
In assessing the likelihood of the third man being the robber, a further consideration is whether he would have placed the meat cleaver under the front passenger seat occupied by the appellant rather than under the driver’s seat or in the back seat where it is likely he must have been sitting. In weighing that issue it needed to be recognised that a police witness had conceded the possibility that the meat cleaver might have moved within the vehicle when it was removed from Mr Fieldhouse’s home to the police depot.
I accept the correctness of the submission by the respondent that the possession and use by the appellant of the bank cards stolen a short time before in the robbery, was of itself, strong circumstantial evidence of his guilt.[14]
[14] R v Wanganeen (1988) 50 SASR 433 at 435-436.
None of the other evidence to which I have referred detracted in any significant way from the inference of guilt arising from the appellant’s possession of the stolen property. In fact, as the respondent has submitted, the other evidence was consistent with the appellant being the robber.
In my view, 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.
I would dismiss the appeal on ground 1.
Ground 2 – Adequacy of reasons
The principles to be applied when determining whether or not a judge has provided adequate reasons were summarised Kirby P (as his Honour then was) in Soulemezis v Dudley (Holdings) Pty Ltd as follows:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusion reached concerning disputed factual questions and to list the findings on the principle contested issue. Only if this is done can this court to discharge its functions, if an appeal is brought to it.[15]
[15] (1987) 10 NSWLR 247 at 259.
The principles expressed by Kirby P in Soulemezis have been referred to with approval by this Court on many occasions.[16]
[16] Papps v Police (2000) 77 SASR 210, Gray J (with whom Olsson and Wicks JJ agreed) at [24] and [27]; R v Keyte (2000) 78 SASR 68, Doyle CJ (with whom Wicks J agreed) at [48] and R v CH [2016] SASCFC 112, Blue J (with whom Stanley and Doyle JJ agreed) at [41].
In Papps v Police[17] Gray J (with Olsson and Wicks JJ agreeing) cited with approval a passage in Sun Alliance Insurance Ltd v Massoud[18] where Gray J of the Victorian Supreme Court (with whom Fullager and Tadgell JJ agreed) held that reasons will be inadequate if either an appeal court is unable to ascertain the reasoning upon which a decision is based or if justice is not seen to have been done.
[17] (2000) 77 SASR 210 at [34].
[18] [1989] VR 8 at 18.
The appellant contends that the Judge’s reasons did not adequately deal with his contention that there was a reasonable hypothesis consistent with his innocence, that being, that, the appellant had obtained the bank cards from the robber during the 15 minute period between the robbery and his attendance at the Caltex service station. His Honour specifically rejected at paragraph [157] of his reasons any possibility that the appellant did not take part in the robbery but somehow came into possession of the cards a short time thereafter.
The appellant contends that because the “very short time” referred to by the Judge was in fact about 15 minutes and involved a journey of about six kilometres from the scene of the robbery, it was essential for the Judge to explain his reasons for rejecting the appellant’s contention as a reasonable hypothesis.
The conclusion expressed by the Judge at paragraph [157] was preceded by the detailed analysis set out at paragraphs [129] to [156] of the judgment. Those passages set out in considerable detail the evidence and the findings of fact made by his Honour beyond reasonable doubt. It is not necessary for me to repeat the observations that I made above about that material.
I consider that the comprehensive analysis of the evidence undertaken by the Judge and his findings of fact properly explained the basis for his Honour’s rejection as a reasonable hypothesis the suggestion that the appellant may have obtained the cards after the robbery.
I would dismiss ground 2.
Conclusion
I would dismiss the appeal.