R v McLennan
[2024] QCA 212
•8 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v McLennan [2024] QCA 212
PARTIES:
R
v
McLENNAN, Britney Alana
(appellant)FILE NO/S:
CA No 3 of 2024
DC No 428 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Townsville – Date of Conviction: 4 December 2023 (Burnett DCJ)
DELIVERED ON:
8 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
11 September 2024
JUDGES:
Boddice and Brown JJA and Williams J
ORDERS:
1. Appeal allowed.
2. Verdict of count 2 set aside.
3. A new trial is ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of armed robbery in company – where the appellant was charged on the basis that she was a party, pursuant to s 8 of the Criminal Code (Qld) – where the Crown particularised the case as it being a probable consequence of the prosecution of that purpose that there would be a robbery of the store attendant and that a knife would be produced – where there was no direct evidence of the appellant having knowledge of the co-offender having possession of a knife – whether the trial judge erred in the directions provided to the jury – whether a miscarriage of justice occurred
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
COUNSEL:
J H Horne for the appellant
C M Cook for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
BODDICE JA: On 4 December 2023, a jury found the appellant guilty of one count of armed robbery in company.
The appellant appeals that conviction on two grounds. First, that the verdict was unreasonable and cannot be supported having regard to the evidence. Second, that a miscarriage of justice occurred because the learned trial judge:
“(a)Did not direct the jury to consider the scope of the common purpose or what the prosecution of the common purpose was intended to involve;
(b)Directed the jury incorrectly on the objective test in section 8;
(c)Did not direct the jury on the meaning of ‘probable consequence’;
(d)Did not direct the jury on the production of a knife as a probable consequence of the common unlawful purpose.”
Indictment
The appellant was charged that on 28 August 2022 at Townsville in the State of Queensland, she robbed Tristan Connor Whitbread and was armed with a dangerous instrument, namely a knife and was in company with another person.
The appellant was charged on the basis that she was a party, pursuant to s 8 of the Criminal Code (Qld). The Crown particularised the case against the appellant as:
“The defendant, DC, and unknown co-offenders were in BWS Kirwan, in company, with a common unlawful purpose of stealing alcohol.
DC had a knife.
It was a probable consequence of the prosecution of that purpose that:
· There would be a robbery of the store attendant; and
· That a knife would be produced.”
Evidence
On 28 August 2022, Darren Morse (Morse) was driving a taxi. He was tasked to pick up passengers from Kirwan, a suburb of Townsville. Initially, no one emerged when he pulled up in the street. As he was about to drive off, he noticed some people approaching the car. Three females hopped into the rear of the vehicle; one male sat in the front passenger seat. He was directed to take them to the Brothers Leagues Club. He requested an upfront payment, which was provided in cash. When that money was running out, he asked for further money, which was also provided to him.
Upon arrival at the Club, Morse was asked to wait while they went inside. After “10, 12 minutes tops”, the four returned to his vehicle, empty handed. They directed that he take them to the Kirwan Tavern. He asked them, “Did you not get served?” They replied that they did not. Morse parked outside the BWS Kirwan drive-through, at their request. Morse mentioned that the fare was running out and one of the females paid him more money and asked him not to drive off.
After three or four minutes, all four returned to the taxi. One of the females was holding a bottle of tequila and a bottle of whiskey. The three females sat in the back seat. One said to the male, in the front seat, that he had just done an armed hold-up. The male said they were “talking shit” and there was no armed hold-up. At that point, Morse noticed a knife in the male’s lap. As Morse drove off, he looked back to see if there were any alarms going off. Nothing like that happened. He returned the four people back to the address in Kirwan.
In cross-examination, Morse agreed that the male in the front seat was in his direct line of sight for the entire trip. At no time did he see a knife prior to the group attending the BWS Kirwan. Throughout their period in the taxi, the four people were boisterous, but not aggressive. At no time prior to returning to the taxi, after the BWS Kirwan, did he hear any discussions about robbing the bottle shop, or about a knife.
Morse accepted that in the taxi, after their return from the BWS Kirwan, the discussion about an armed robbery was a discussion in which the word “you” was directed towards the male. He also accepted that the taxi fare was paid in full. The initial cash payment of $25 and the further deposit of $10 was given by one of the females. A final payment of $12.60 was made by bankcard by one of the females.
Tristan Whitbread (Whitbread) was working the night shift at the BWS Kirwan on 28 August 2022, by himself. He observed a taxi pull up in the parking lot. Some people emerged from it. He continued to serve a car and then served another car that came into the express lane. At that point, three of the people from the taxi came towards him. He told them he would be a minute.
Whitbread finished serving the car, and then asked the people from the taxi for their ID. When they said they did not have any, Whitbread refused to serve them. He deemed them to be under 25. It was store policy to refuse to serve unless they could prove their age. They started yelling at him and he started yelling back, telling them to leave. Whitbread was yelling at two people, one male and one female. When they asked for soft drink, Whitbread said he could not serve them anything. The female then asked him if he was even old enough to work there. When he told them to leave again, she said she would get her nephews to come over and bash him.
The male kept asking Whitbread to serve them. Whitbread kept repeating himself. The male then pulled out a knife and said, “Are you going to serve me now?” Whitbread said, “Just take whatever you want and leave.” The male grabbed two bottles of wine. Whitbread took a step forward, trying to get them out of the store. The male said, “If you take another step forward, I’m going to slit your throat.” Whitbread said, “Just get out. I need you to go away.” The male walked off. One of the females started to apologise to Whitbread, saying she did not know that the male had a knife. Whitbread replied, “I don’t care. Just get - get out”.
At that point Whitbread looked over and saw the male was standing at the left side of the entrance. The male said, “If you look at me again, I’m going to come over and stab you.” Whitbread screamed, “Just get in the car and go.”
Whitbread identified himself in CCTV footage from the BWS Kirwan. He identified the female, who said she would get her nephews to bash him, as the female in the footage, as well as the male depicted in the footage as the person who pointed the knife and made the threats to him.
In cross-examination, Whitbread accepted that in his first interaction with the group, they were not aggressive towards him. They only became argumentative after he said he could not serve them without ID. He accepted that the appellant asked him if she could be served water. He replied, “No, not without ID.” It was at that point she said, “If you don’t serve me, I’ll get my nephew to bash you.” The threat to bash was only in relation to her being served.
Whitbread accepted that he had a separate conversation with the male person who requested to be served and pulled out a knife when Whitbread said no. The male said, “Are you going to serve me now?”, not “Are you going to serve us now?” (my emphasis). Whitbread had also observed them move around the store. At no earlier time had he noticed the knife.
Whitbread accepted that the appellant apologised to him, saying, “I’m sorry. I didn’t know he had a knife.” He also accepted that after saying, “I’ll get my nephew to bash you”, the appellant made no further threats to him. Whitbread also accepted that when the male made the threat to slit his throat, or to stab him, the appellant was not standing with the male.
Whitbread accepted that he only became aware that the appellant had earlier taken some bottles of alcohol from the back room, after he had watched the CCTV footage from the store.
Police tasked with investigating an allegation of an armed robbery in company at BWS Kirwan on 28 August 2022, identified from CCTV that a taxi had been in the area. Inquiries revealed that the internal CCTV in the taxi had failed. Police were able to obtain CCTV footage from the Brothers Leagues Club. This footage was played to the jury. It depicted the appellant as being present at that club. CCTV footage obtained from the BWS Kirwan was also played to the jury.
On 13 September 2022, police executed a search warrant on a residence in Kirwan. At the time of its execution, DC was present. Police located an empty bottle of Rosé consistent with property taken from BWS Kirwan. Police subsequently charged DC in relation to events at BWS Kirwan.
At the conclusion of the Crown case, formal admissions were made that on 19 September 2023, the appellant pleaded guilty to stealing two bottles of bourbon from BWS Kirwan at 8.42 pm on 28 August 2022; that DC was the male depicted in the CCTV footage from BWS Kirwan wearing a cap, black t-shirt and holding the knife; and that the appellant was the female depicted in the CCTV footage from BWS Kirwan wearing a grey KISS t-shirt, black shorts and black thongs.
No case submission
At the end of the Crown case, the appellant submitted that the jury should be directed to find her not guilty of armed robbery, in company. It was submitted that there was no evidence of a common intention to steal. Further, there was no evidence the appellant was aware of the presence of the knife.
The trial judge ruled that it was a matter for the jury as to whether liability was established, beyond reasonable doubt, pursuant to s 8. The primary judge said, “… it’s not a case where I think you can withdraw it from the jury because Mr Whitbread says she didn’t say anything. She doesn’t need to say anything. She stands next to him and provides – you know, her presence provides support to the threat he has just launched upon the attendant, having regard to the way in which she moves with the male as he approaches the attendant with his knife being brandished. I don’t know how better – how much better it can get, beyond her saying, ‘Well I’m going to stab you too.’ She doesn’t need to say that. She’s providing every bit of threat by her presence. I mean, she’s not a small woman to start with, not that that’s really a big issue, in this case, but she’s plainly supporting the male as he brandishes a knife and brandishes it in, what can only be described as, a threatening way.”[1]
[1]AB 97/27-36.
After the trial judge’s ruling, the appellant elected to neither give nor call evidence.
Summing up
Relevantly, the trial judge summed up to the jury in the following terms:
“Now, the defendant is charged with only one offence, that is, armed robbery in company armed. The elements of that offence are these. First, the Crown must prove each of these elements beyond reasonable doubt. The first is that the defendant stole something. Second, that at the time of or immediately before or immediately after stealing, the defendant used or threatened to use actual violence to any person or property. Any degree of violence is sufficient. Third, that the use of violence means that some degree of force is used. And fourth, that the use or threat of violence must be done in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen. In addition, in this case there are two circumstances of aggravation alleged. That first is that the offending occurred in company and second, that there was the use of a dangerous instrument, namely a knife, in the course of the robbery.
So turning then to the evidence. The evidence, at least so far as the physical events are concerned, are probably not very much in contest. You have most of it contained in the CCTV. The Crown particulars are these. That the defendant, DC, and two unknown co-offenders were in the BWS Kirwan in company with a common unlawful purpose of stealing alcohol. DC had a knife and it was a probable consequence of the prosecution of that purpose, that is, the stealing of alcohol, that there would be a robbery of the store attendant and that a knife would be produced.
Now, a number of things may be immediately apparent from the particulars I have just given or I have just recited to you against the background of this case and in terms of the elements of the offence which have to be addressed by you, and that is that in this case, the actual bottle of wine stolen was not physically stolen by the defendant and the defendant did not have in her possession a knife. The bottle of wine stolen, you will see from the CCTV, was, in fact, stolen by Mr DC. And again, by reference to the CCTV, you will see that Mr DC was the person brandishing the knife at the time of these events. However, as I will explain in a short time, there is a section of our Criminal Code that deals with common purpose and it is on that basis that the Crown assert its case against the defendant.[2]
[2]AB 31/44–32/25.
…
So let me now turn in particular to the defendant so far as this offending is concerned. As I have said, the Crown prosecutes its case against the defendant on the basis that she is what we in the law term a section 8 offender, that is, that there was a common purpose between these people to effect a robbery. There are three elements that the Crown need to establish to prove a common purpose and they are these. First, that there was a common purpose to prosecute an unlawful purpose. Now, the second is that an offence is committed in the prosecution of the common unlawful purpose and the third element is that the offence committed is a probable consequence of the prosecution of the common unlawful purpose. And there is a lot of legal gobbledegook in there and I will try and make it sensible for you in plain English if I possibly can.
So dealing with the first element, a common purpose to prosecute an unlawful purpose. Now, the unlawful common purpose in this instance is the stealing of alcohol. Now, when we are talking about purpose, we are really talking about a common intent. Now, intent is a state of mind. You cannot touch intent. You cannot feel it. There is no direct evidence about intent. It is something to be inferred from the circumstances.
So again, I take you back to the evidence of the time of day at which this offending occurred, the unusual nature of the request to the taxi driver to park in a position that was partly obscured, the discussion that took place outside the taxi, the parties entering into the store and separating, two of the parties, including the defendant, going into the storeroom, which is out the back of the shop, not the public area, and stealing alcohol, one of them departing out a side entrance with the booty and the other returning into the store. And the complainant serving in the driveway being distracted by his duties as a shopkeeper.
You might take into account that alcohol was stolen. Not only was there the stealing by the male, Mr DC, but also other alcohol was stolen. That includes the defendant’s conduct in stealing spirits that she was involved in the theft of. There was the presentation of the parties, one of them wearing a hood or at least bringing the hood over her head as she entered the shop. They are all matters which you might think might satisfy you beyond reasonable doubt that there was indeed a common intent on the part of these people, including the defendant, to steal alcohol.
Now, as I say, if you need to be satisfied of this matter beyond reasonable doubt before you can convict the defendant of this offence, so if there is any hypothesis consistent with innocence, then, of course, you must acquit the defendant because this element will not be satisfied. It is, as I say, a circumstantial matter. Now, as I say, the purpose – well, this intent might be inferred from all the circumstances as I have outlined them to you. The purpose or intent must be a subjective one, that is, that the defendant herself thought the unlawful purpose was to steal alcohol. So that is the first element that must be established, the common purpose to prosecute an unlawful purpose, which in this case was stealing.
The second element that the Crown must establish in order to prove the guilt of the defendant in respect of the principal offence of robbery is that the offence was committed in the prosecution of the common unlawful purpose. Now, here the offence in question was the robbery so the issue was the robbery an offence committed in the course of the unlawful purpose, namely stealing alcohol, that being the purpose or the common purpose of the offence. Again, I remind you that evidence of matters that occurred before, during, and after the offence are relevant, but especially the behaviour of the defendant at the time of the robbery.
The defendant stands immediately behind the male, Mr DC, as he holds the knife in a threatening way. She moves in lock step with him as he advances upon the stop attendant. She stands by as the male engages in that behaviour. She does not retreat or seek to come between him and the shop attendant. She simply stands by and she continues to stand by as he steals a bottle of wine and retreats from the shop. They are all matters that may, you might think, satisfy you of the second element, that is, that the robbery offence was committed in the prosecution of the common unlawful purpose, which was to steal alcohol.
The third matter which the Crown must establish beyond reasonable doubt – and I should say, again, this is a matter which the Crown seeks to establish circumstantially. So again, you must be satisfied from the evidence that the only reasonable – the only – I should say, the only inference that is open to be drawn from the evidence is that the robbery offence was committed in the prosecution of that common unlawful purpose to steal wine. If there is a hypothesis consistent with innocence, then of course you must acquit.
Now, as I have said to you, in this case, the hypothesis advanced by the defendant, particularly in relation to this part or this element, is that the admitted evidence of statements made by Mr Whitbread, I should say, in respect of his conversation with each of the defendant and the male were that they were unhappy about not being served alcohol. They were not making threatening remarks in the context of a stealing but rather because they were not being served. What you make of that is entirely a matter for you. If you think that is a reasonable excuse, well, then, of course, you acquit. But if you do not think that is reasonable, then that is a matter for you, having regard to all the circumstances – then, of course, the Crown will have excluded that hypothesis and you would be satisfied of this particular element.
The third element is that the robbery offence was committed was a probably consequence of the prosecution of the common unlawful purpose. Now, this calls for an objective test. That is, standing back as 12 members of our community looking at the facts, you as reasonable people, having considered the unlawful purpose, that is, the stealing of alcohol, and what its prosecution, that is, the undertaking of that act, was intended to entail.
And that includes your consideration of the relevant facts, the entry of a liquor store late at night, the potentiality of having to deal with an attendant, a shop attendant, not knowing how the shop attendant may react, particularly in the context where you have just a short time before had an adverse experience at another outlet where you were refused or challenged in relation to your age and refused service.
Taking all those factors into consideration and then considering what was the nature of the actual crime committed, that is, the robbery, being in company and armed, you must then decide whether that crime, namely the robbery, was of such a nature that its commission was a probable consequence of the prosecution of that purpose, being stealing alcohol. It is this objective test that extends liability of the defendant beyond the scope of what she may have initially intended, namely just stealing alcohol.
So you may well accept that she had no knowledge of Mr DC having a knife, but that is not to the point. At least, depending upon the view you take of it, because you might take the view that she saw the knife brandished before he stole the wine and that may be the end of it for you. It is entirely a matter for you. But nonetheless, let us put the defence case at its highest.
If you come to the view that she had no knowledge of the knife, the fact remains that you still have to apply an objective test to determine whether the liability of the defendant extends beyond what she initially intended, that is, to steal alcohol, to include her culpability for the robbery. She may not have initially have contemplated this offence at the time. She and the male set out to steal alcohol. As I said, what distinguishes stealing from robbery is the stealing being accompanied by violence or a threat of violence.
So you must ask yourself whether in all the circumstances violence or a threat of violence was a probable consequence of the unlawful act of stealing. Again, this is a matter to be inferred. This must be the only inference available. And if you are not satisfied that this is the only inference available or if you are satisfied it is the only inference available, you must further be satisfied that there is no innocent explanation consistent with innocence and if there is an explanation provided, whether the Crown have excluded it, either because it is simply not a reasonable explanation or, for instance, because the Crown have not been able to exclude it because the evidence is – the exculpatory evidence is to be preferred in contest to the inculpatory evidence. But they are ultimately all matters for you, members of the jury. As I say, they are the matters you need to consider in the context of this common purpose test.”[3]
[3]AB 37/9–39/40.
After giving those directions, the trial judge summarised the rival contentions:
“The Crown case is there was a plan to steal alcohol. It led to an armed robbery in company. If the defendant did not know that the male had a knife, by reason of her conduct, it was a plain and probable consequence of the plan to steal alcohol that something would be used, something – that is, violence escalating to the use of a knife and accordingly the Crown will have established its case.
The Crown highlighted things that Mr DC did and said, which were not in dispute. That is, that the defendant threatened the complainant. Mr DC pulled a knife and he threatened the shop attendant, in fact, on a number of occasions. DC was in company and the defendant was beside him at the time that he committed the offence. The Crown prosecutes the defendant on the basis of her being a party to the offence. She went through the elements of robbery, which I will not restate.
She submitted that in this case, there was a plan to steal alcohol and the armed robbery was a probable consequence. There was a common unlawful purpose. She highlighted the defendant said there was no plan but says you look to other factors. The fact that there is no direct evidence is not the end of it. It is open to be inferred. And by reference to the plan, there was a plan to steal alcohol. A robbery was an entirely foreseeable consequence of the execution of that plan. She addressed in her address in anticipation of submissions for the defence the matter of the knife. What you make of those is entirely a matter for you. If you wish to be reminded of any of these things, just send me a note and I will remind you.
For the defence, the defence opened by her opening statement, which was accepted by Mr Whitbread: “I am not” – I am sorry:
I did not know he had a knife.
And the thrust of the defence case was that that absence of knowledge meant that the defendant had no knowledge or had no reasonable basis to suspect that the crime of stealing would escalate into a robbery. She submitted there were two issues for you. First, the question whether there was a plan to steal alcohol and second, the probability of a knife being produced. She went through a great body of the evidence. Again, I am not going to rehearse that. If you want to be reminded, you can tell me. But in essence, the thrust of the defence case was that she had no knowledge of the knife. She had no occasion to have any knowledge of the knife. And the stealing of the wine did not occur at least from the defendant’s perspective, with the assistance of a knife.
She looked in particular to the statements that were made by the shop attendant to each of the defendant and the male co-stealer – that was Mr DC – and they are statements that they were threatening or making threatening statements because they were not being served rather than because they were intending to steal and submits to you that on that basis, the robbery, again, was not within contemplation and certainly the brandishing of a knife was not within the contemplation of the defendant. She was only remonstrating about the failure of service and on that basis there was no threatening of violence in respect of the actual theft itself. Again, I will not remind you of the specific threats made, but if you wish to be reminded, you can just send me a note and I will remind you of those as – in detail.
She submitted, of course, as a first step, you would determine the common intention, that is, the unlawful purpose. She submits there is no evidence that would satisfy you that there was an unlawful purpose. She pointed out there are possible innocent explanations for why the taxi was parked where it was parked. They are all matters for you to evaluate. She challenged the Crown’s contention on those matters and proffered a number of explanations. She reminded you that there was no evidence that DC knew that the defendant herself had alcohol concealed on her person and there was no evidence of conversation of stealing in the taxi.
So far as the knowledge of the defendant itself, particularly DC was concerned, she reminded you of Mr Whitbread saying that the defendant said she did not know DC had a knife and submits that on that basis, the prospect of a robbery was not a probable consequence. Ultimately, she submitted that the question for you is whether the robbery was a probable consequence and submits that the fact that DC himself had a knife at the time was not a matter which was in the mind of them at the time the common purpose was formed and on that basis, the defendant is entitled to a reasonable doubt and, accordingly, a verdict of not guilty.”[4]
[4]AB 39/43–41/14.
After the jury retired to consider their verdict, the trial judge redirected the jury:
“And you may recall when I addressed section 8, the common purpose section of the code, I identified three elements. The third element I did not fully detail. It is that the offence committed was a probable consequence of the prosecution of the common unlawful purpose by reference to a reasonable person with the defendant’s state of knowledge. So that is what we might refer to as an objective subjective test, that is, you objectively look at the defendant’s state of knowledge, his subjective state of knowledge, when assessing whether it was a probable consequence of the common unlawful purpose.”
Subsequently, after the jury had been deliberating for approximately 30 minutes, the jury sent a note in the following terms:
“The second paragraph states that Britney was armed with a knife. Is this a misprint?”
This note was in reference to the provision to the jury of a copy of the charge sheet. That charge sheet contained the circumstance of aggravation, that the appellant “was armed with a dangerous instrument, namely a knife”.
In response to the jury’s note, the trial judge directed the jury:
“Members of the jury, thank you for your third note, which I have now marked E for identification. It is expressed in these terms:
The second paragraph states that Britney was armed with a knife. Is this a misprint?
Members of the jury, the defendant is charged as a principal offender, that is, a party to the offence by reason of section 8 of our Criminal Code. Section 8 says this:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
So by operation of section 8 – and you may recall I took you through the three elements that needed to be established in relation to section 8. If you are satisfied that each of those elements is established, then even though Mr DC was the person who was physically brandishing the knife, she is a principal offender and is treated as if she was brandishing the knife herself, which is why you see the reference in the second paragraph to her as being armed with a dangerous instrument.
Now, I hope that makes that clear enough for you. If it does not, just send me another note and I might take you through the whole direction again. It can be complicated. I know that. So do not be in any sense hesitant in coming back to me with another note. I can assure you it is a complicated issue because there is quite a lot of authority, that is, from the superior appeal courts on that section of the Criminal Code. So it is not an easy section and do not be concerned if you need further directions.”[5]
[5]AB 49/25–50/7.
After the conclusion of that redirection, counsel requested that the trial judge further redirect the jury as there had been a reference to the appellant as a principal offender. The trial judge returned the jury and redirected them further:
“Members of the jury, I have slipped into the use of infelicitous language. I am going to ask you to take from your papers your particulars, A for identification.
…
Now, I may I am told I used the term principal when I should have said party or vice versa. I cannot recall which. But to make it clear, as I have said, in this case, this defendant is charged as a party offender by reason of section 8. So when you look at the particulars, you will see the first line says the defendant she was the party offender. So the defendant, DC – he was a principal offender – and unknown co-offenders, etcetera, in company or were in company in BWS Kirwan with a common unlawful purpose of stealing alcohol.
She is referred to in the indictment in her name as a party offender because by operation of section 8, when, as I have said, two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the course of the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. So it is by reason of section 8 that she has her name in the indictment as being armed with a dangerous instrument, namely a knife, that is, as a party offender.
So it is just important you understand that the principal, Mr Ross, a co-accused, so to speak, that I gave you a direction on a little earlier on, carried the knife, but she is culpable by operation of section 8 as a party offender if you are satisfied of the three matters that I outlined or instructed you on earlier in the course of my summing up directions. So my apologies for not having make that clear. It was probably made, I think, clearer for you by taking you back to the particulars, or I hope it was, anyway.”[6]
Consideration
[6]AB 51/10–40.
Ground 1
In order to determine whether a jury verdict was unreasonable and against the weight of the evidence, an appellate court must undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[7]
[7]Dansie v The Queen [2022] HCA 25 at [38].
In undertaking this task, the appellate court is to have due regard for the position of a jury in the criminal justice system and the advantages afforded to that jury, by having seen and heard the witnesses at trial.[8] However, if upon an independent assessment of the record there are inconsistencies, discrepancies or other evidence which, allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict of the jury is to be set aside as unreasonable.[9]
[8]Dansie at [9] citing M v The Queen (1994) 181 CLR 487 at 493.
[9]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39].
In the present case, the appellant submits that it was not open to the jury to be satisfied of the appellant’s guilt of the offence of armed robbery in company, beyond reasonable doubt, as there was no evidence from which the jury could reason that the appellant was aware that male was in possession of a knife. It was submitted that in the absence of direct knowledge of the possession of a knife, or even more generally, of an offensive weapon, the use of a knife could not come within the scope of the particularised common unlawful purpose. Further, the evidence could not exclude an inference consistent with innocence, that the appellant did not know her co-offender possessed a knife and did not contemplate that the common unlawful purpose could extend to the use of an offensive instrument or a dangerous weapon.
Whilst there was no direct evidence of the appellant’s knowledge of the possession of a knife by her male co-offender and there was a contemporaneous statement by the appellant, consistent with the appellant not having any such knowledge, a consideration of the record as a whole supports a conclusion that it was open to the jury to draw an inference of knowledge, such that the jury could be satisfied, beyond reasonable doubt, of the appellant’s guilt of the offence of armed robbery in company.
That conclusion flows from the contents of the CCTV footage from BWS Kirwan. That footage depicts the appellant, upon production of the knife by the male, as moving to a position which arguably prevented Whitbread from leaving the counter area. It does not depict any reaction of surprise at the production of a knife. If the jury reached that conclusion, it was open to the jury to reject as untruthful, the appellant’s statement to Whitbread that she did not know the male had a knife and infer that the appellant was aware her co-offender was in possession of a knife, prior to entering BWS Kirwan.
The verdict of the jury was not unreasonable.
Ground 2
A prosecution based on an offender being a party, pursuant to s 8 of the Criminal Code, requires careful identification by a trial judge, as to the common purpose, as to probable consequence and as to the relevant test applicable for a determination of liability under s 8.
Whilst the trial judge correctly directed the jury that the appellant must herself have thought the unlawful purpose was to steal alcohol, the trial judge did not direct the jury as to the need to consider fully and in detail, what was the alleged unlawful purpose and what its prosecution was intended to involve. Further, the jury were not directed that the appellant’s statement about her lack of knowledge of the presence of a knife, was evidence which could be considered in respect of a common intention to prosecute an unlawful purpose. The state of knowledge of the appellant was relevant to the content of the common intention to prosecute the common purpose, which itself defined the restrictions on the nature of the acts done or omissions made, which the appellant was deemed by the section to have done or made.
Further, whilst the trial judge identified to the jury evidence of the steps taken before, during and after the offence said to be relevant to the appellant’s behaviour, the jury were incorrectly directed that they “objectively look at the defendant’s state of knowledge, his subjective state of knowledge, when assessing whether it was a probable consequence of the common unlawful purpose”. Such a direction was confusing and required clarification, as the relevant state of knowledge was central to the common unlawful purpose.
The confusion was compounded by the trial judge’s incorrect identification of the holder of the knife as DC, on several instances in the summing up and the regular use of robbery when referring to the offences. There was a need for precision about the offence being armed robbery, especially when an alternative verdict of robbery in company was open to the jury.
In addition to those failures, the trial judge gave no direction to the jury about the meaning of “probable consequence”. In circumstances where there was no direct evidence of the appellant having knowledge of the male co-offender having possession of a knife, or a dangerous instrument, it was central for the jury to be directed as to the meaning of “probable consequence”, particularly having regard to the particulars provided by the Crown. In particular, the jury needed to be directed that the commission of the offence must be not merely possible, but probable in the sense it could well have happened.
There was one further significant misdirection. In directing the jury as to the elements of s 8, directions were given by reference to stealing and robbery. At no stage were the jury directed that armed robbery in company was a distinct offence from robbery in company and, further, that if the jury were not satisfied that the production of the knife was a probable consequence of the unlawful common purpose, the jury would acquit the appellant of the count of armed robbery in company.
This lack of direction was compounded by the attempt to address the issue in redirections. In redirections, s 8 was read to the jury, without any directions as to its application to the production of a knife, for the purposes of the consideration whether the jury were satisfied, beyond reasonable doubt, that the appellant was a party to armed robbery in company.
In circumstances where the appellant’s liability was based on s 8 of the Criminal Code, a failure to properly direct a jury in relation to the elements, in the context of the specific issues in dispute at trial, was an error which amounted to a miscarriage of justice. The error was “prejudicial in the sense that there was a ‘real chance’ that affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”.[10]
[10]HCF v The Queen [2023] HCA 35 [2]; 97 ALJR 978 citing Zhou v The Queen [2021] NSWCCA 278 at [22].
Orders
I would order:
1.Appeal allowed.
2.Verdict on count 2 set aside.
3.New trial ordered.
BROWN JA: I agree with the reasons of Boddice JA and the orders proposed by his Honour.
WILLIAMS J: I agree with the reasons and proposed orders of Boddice JA.
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