Rankine v The King

[2025] SASCA 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

RANKINE v THE KING

[2025] SASCA 61

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)

5 June 2025

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

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY

Following a trial before a jury, the appellant and co-accused, Zachary Woods, were found guilty of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and attempted aggravated robbery contrary to ss 137(1) and 270A of the CLCA. A second co-accused, William Lindsay, pleaded guilty to both offences before the commencement of the trial.

The prosecution alleged at trial was that the appellant and the two co-accused robbed the V Hotel whilst armed and masked. The main issue at trial was the identity of the offenders, and, in particular, whether the prosecution had proved beyond doubt that the appellant was the offender armed with a tyre iron. The prosecution case was circumstantial, and relied on the appellant’s association with the two co-accused in the hours leading up to the robbery, telecommunication evidence and the similarity of his appearance with the offender’s appearance, as depicted in CCTV footage.

The appellant did not give evidence at trial. Defence counsel contended that the jury could not be satisfied beyond reasonable doubt that the offender armed with the tyre iron was in fact the appellant, suggesting that any number of other men could have been involved.

The appellant seeks permission to appeal against his convictions on the sole ground that the verdicts were unreasonable or unsupported by the evidence.    

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.Upon the Court’s independent assessment of the whole of the evidence, it was open to the jury to find beyond reasonable doubt that the appellant was guilty of the charged offences. 

Criminal Law Consolidation Act 1935 (SA) ss 137(1), 270A, referred to.
Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, considered.

RANKINE v THE KING
[2025] SASCA 61

Court of Appeal – Criminal: Livesey P, Doyle and David JJA

1. THE COURT:  The appellant and two co-accused (Zachary Woods and William Lindsay) were jointly charged with the offences of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Count 1) and attempted aggravated robbery contrary to ss 137(1) and 270A of the CLCA (Count 2). Following a trial before a jury, the appellant and Mr Woods were found guilty of the offences. Mr Lindsay pleaded guilty to both offences before the commencement of the trial.

2. The prosecution case was that the appellant, together with the two co‑accused, robbed the V Hotel (‘the Hotel’) in Virginia in the early hours of the morning on 9 October 2019.  All three men were alleged to have been armed and masked. Whilst inside the Hotel, the appellant and Mr Lindsay allegedly threatened the hotel duty manager demanding money (Count 1).  Mr Lindsay was also alleged to have approached the gaming room attendant and demanded cash while pointing a firearm in her direction (Count 2).  The three men then left the premises together in a silver hatchback Hyundai i30 (‘the silver Hyundai’). The alleged offending was captured on CCTV taken from the Hotel.

3. The prosecution case against the appellant (and Mr Woods) was put on the basis of a joint criminal enterprise. The main issue in dispute was the identity of the offenders and, in particular, whether the prosecution had proved beyond reasonable doubt the appellant was the ‘third offender’ armed with a tyre iron.

4. The appellant challenges his convictions on the sole ground that the verdicts were unreasonable or unsupported by the evidence.  For the reasons which follow, we grant permission to appeal but dismiss the appeal.  We are satisfied there was sufficient evidence to prove the identity of the third offender as the appellant and accordingly, the verdicts are not unreasonable.

   The evidence at trial

5. On 9 October 2019 at about 2:15am, three offenders forced their way through a locked front entrance to the Hotel.  They arrived in the silver Hyundai. The prosecution alleged that the appellant, armed with a tyre iron, exited the silver Hyundai from the rear left passenger seat.  He was followed by Mr Woods who was the driver, and Mr Lindsay who exited from the front passenger seat carrying a firearm.  The appellant threw a mallet or hammer through the sliding front entrance doors of the Hotel and kicked in the door.  They then went inside the Hotel.

6. The prosecution alleged that once inside the premises, the appellant and Mr Lindsay entered the office of the duty manager, SH.  They yelled at him to open the safe, which SH told them he could not do.  Mr Lindsay grabbed some bundles of cash from the desk and two ATM cash drawers.  The appellant then grabbed a coin tin from the desk drawers and picked up two ATM cash drawers.  During his time in the duty manager’s office, the appellant’s mask slipped and revealed part of his face.

7. While this was occurring, Mr Woods was in the strongroom filling up a plastic rubbish bin with gold coins.

8. Mr Lindsay left the office and pointed the firearm at an employee, JM, and demanded cash.  She told him that she only had coins and to take as many as he wanted (Count 2).

9. The three offenders then left the premises.  On their way, Mr Lindsay picked up a black plastic tub of gold coins called a ‘drop box’.  Mr Woods attempted to carry the rubbish bin with coins but dropped it and left it behind at the front entrance.  They all then drove away in the silver Hyundai.

10. As mentioned earlier, the whole incident was captured on CCTV.  There was no dispute that three men committed a robbery, or that two of the men were armed.  In relation to the appellant, the issue at trial was whether the prosecution had proved that the identity of the offender with the tyre iron was the appellant. The prosecution case against the appellant was a circumstantial one which relied on the following bodies of evidence.

11. First, the association and contact between the appellant and Mr Lindsay and Mr Woods immediately before the robbery. The appellant, during a record of interview with police on 4 November 2019, admitted to knowing both Mr Lindsay and Mr Woods.  Indeed, Mr Lindsay is the appellant’s nephew.

12. There was telecommunication evidence that supported the inference that the appellant had been in the company of Mr Lindsay and Mr Woods before and after the robbery.   The mobile phone records associated with the three men showed that they were contacting each other in the hours leading up to the robbery, through text messages and voice calls.  Records from Mr Lindsay’s mobile phone showed that the following messages were sent by his phone to the phone used by the appellant on 8 October 2019:

    ·at 7:12pm, ‘Trevor’;

    ·at 10:05pm, ‘My number is’ and [a phone number]; and

    ·at 10:06pm, ‘Hurry up or I’m going’.

13. On that same evening, at 10:06pm, the appellant called Mr Lindsay and there was an 88 second phone call.  A few minutes later, at 10:10pm and 10:11pm, Mr Lindsay attempted to call Mr Woods. Mr Lindsay then sent the following messages to the mobile phone allegedly used by Mr Woods:

    ·at 10:13pm, ‘Your [sic] not coming with us OK don’t get angry wth [sic] us when you miss out OK’; and

    ·at 10:14pm, ‘You watch this’.

14. On the prosecution case, Mr Woods responded at 10:36pm, ‘I’m on my way’. 

15. Mr Lindsay then sent Mr Woods a number of directions as to what to do, including at 10:48pm, ‘Ok just park at the front with it’.

16. Mr Woods’ girlfriend, Tonya Agius, then responded (on Mr Woods’ phone) at 11:03pm, ‘He just left’. Mr Lindsay at 11:19pm asks, ‘How long ago’.

17. Mr Lindsay then rang the appellant at 11:36pm and they had a conversation that lasted one minute and eight seconds.  Between 12:01am and 12:29am on the following day, there were seven short voice calls from Mr Lindsay to the appellant.  At 1:03am, they spoke for one minute and 53 seconds.  Mr Lindsay’s mobile phone ceased communicating at about 1:22am, suggesting that the mobile phone was switched off at about this time.  At 5:58am, there was a data event consistent with his mobile phone being switched back on.

18. On the prosecution case, the calls and text messages between the appellant, Mr Lindsay and Mr Woods, demonstrated that Mr Lindsay intended to meet with both the appellant and Mr Woods on the night of the robbery.  It was significant that there was no contact between the three men shortly before, during and immediately following the robbery, suggesting that they were in each other’s company effecting the robbery at that time.

19. There was also evidence adduced as to the location of the mobile phones associated with the appellant and Mr Lindsay at the relevant times.  At 1:03am, Mr Lindsay made a phone call to the appellant which went through the Prospect telephone tower.  The evidence then placed the phone used by Mr Lindsay as moving from Prospect to Greenacres, and then due north of Gepps Cross between 1:05am to 1:22am (that is, travelling in a northerly direction).

20. In relation to the mobile phones associated with the appellant, from approximately 1:00am to 1:15am, it was connecting with the Gepps Cross telephone tower (at the same time that Mr Lindsay’s phone was connecting to a telephone tower in that area).  This supported an inference that the appellant had met Mr Lindsay, and they ventured north in the direction of the Hotel at a time proximate to when Mr Lindsay was also arranging to meet with Mr Woods. At 3:05am to 3:11am, the appellant’s mobile phone connected to the Bolivar telephone tower and the Paralowie telephone tower. 

21. The association between the appellant and the two co-accused on the evening of the robbery was also significant in light of the evidence relating to the recovery of property stolen from the Hotel.

22. On 9 October 2019 between 6:45am and 7:00am, four ATM cash drawers, a drop box and a coin tin were located in Kentish Green, Para Vista.  These items were forensically examined. The left thumbprint of Mr Lindsay was identified on the coin tin and the right ring fingerprint of Mr Woods was identified on an ATM cash drawer.

23. Moreover, the CCTV footage revealed that the offenders had arrived at the Hotel in a silver Hyundai and left in the same vehicle.  There was evidence that on 27 September 2019, Mr Woods’ girlfriend, Ms Agius, had rented a silver Hyundai i30 from Avis Car Rental at the Adelaide Airport; and at the time, she was in company with Mr Lindsay.  Ms Agius was also the appellant’s niece. The silver Hyundai was to be returned to Avis on 28 September 2019, however, it was never returned.  On 9 October 2019 at around 5:00pm, the silver Hyundai was located at Woolnough Road, Exeter, outside the home address of Ms Agius’ mother.  Significantly, the silver Hyundai used in the robbery had stickers on it that were affixed in the same location that Avis places stickers on their rental vehicles.

24. After the silver Hyundai was located by police, it was forensically examined.  Mr Woods’ left middle fingerprint was located on the inside of the silver Hyundai driver’s window.  There was evidence that a DNA profile consistent with Mr Woods’ DNA profile was extracted from samples taken from the steering wheel, gear stick and handbrake of the silver Hyundai, and on a Coca-Cola coke bottle and pair of sunglasses in the vehicle.  There was also evidence that a DNA profile consistent with Mr Lindsay’s DNA profile was located on the steering wheel.

25. Furthermore, on 9 October 2019 at around 10:50am, police observed the silver Hyundai at the Highlander Hotel, Gilles Plains (about eight and a half hours after the robbery).  There was CCTV footage from the Highlander Hotel tendered which showed Mr Lindsay and Mr Woods playing pokies.  There was also CCTV footage which depicted Peter Morrison in company with Tarynne Borsi-Watson arrive at the Highlander Hotel in the silver Hyundai (used in the robbery) and then join the co-accused. All four persons left the Highlander Hotel in the silver Hyundai. Mr Woods was driving the silver Hyundai, Mr Lindsay was in the front passenger seat, and Mr Morrison and Ms Borsi-Watson were seated in the rear of the vehicle.

26. Police, in an unmarked police vehicle, followed the silver Hyundai as it left the Highlander Hotel and subsequently attempted to stop the vehicle.  However, the silver Hyundai drove away from police.

27. While the appellant was not forensically linked to the stolen property or the silver Hyundai used in the robbery, his association with the co-accused at a time proximate to the robbery (and their forensic link to the stolen items and vehicle) rendered that evidence indirectly relevant against the appellant in proof of the charged offences. 

28. The second main body of evidence concerned the similarity between the appearance of the offender with the tyre iron (as described by the eyewitnesses and as depicted in the CCTV footage) with the appellant’s appearance.

29. The duty manager, SH, described the offender holding a tyre iron as having ‘very dark skin, appeared to be Aboriginal or … Islander’, brown eyes, approximately five foot 10 inches or five foot 11 inches in height and ‘a bit stocky’.  The gaming room attendant, JM, described the same male as wearing something like a t-shirt over his head which showed his face from the ridge of the nose up to the hairline, and said that he had ‘angry dark sunken eyes’.  Security guard, RA, described this male as having dark skin.

30. The CCTV footage of the robbery obtained from the Hotel was examined by a digital investigation consultant, Dr Sorrell.  He enhanced still images from the footage and placed them next to arrest photographs of the appellant taken on 14 September 2019.  The jury were also provided with arrest photographs and footage taken of the appellant on 4 November 2019 (which included footage of the appellant in a police vehicle and a record of interview with police).  During the robbery the face covering of the offender holding the tyre iron became dislodged and partially exposed his face.  The prosecution alleged there were distinctive similarities between the male in the CCTV footage and the appellant; namely, dark skin, dark hair, a prominent and large nose, a furrowed brow and a similar body shape, being short, stocky and muscular.

31. During the trial, the appellant’s counsel submitted that the prosecution had not excluded the possibility that the offender armed with the tyre iron was another male, namely, Mr Morrison.  As part of the prosecution case, evidence was adduced from Ms Borsi-Watson. She gave evidence that at the time of the offending she was in a relationship with Mr Morrison.  On 8 October 2019, Mr Morrison was released from custody sometime after 11:30am.  She said that he came to her house at Gepps Cross sometime between 3:00pm and 6:00pm on that day.  They stayed together throughout the night. 

32. On the morning of 9 October 2019, Ms Borsi‑Watson gave evidence that she and Mr Morrison were picked up by the two co-accused, Mr Woods and Mr Lindsay, in a silver vehicle.  She was dropped at the Gilles Plain shopping centre, while the three men drove away.  When she finished her errand, she rang Mr Morrison, and he came back on his own in the same silver vehicle to pick her up.  Mr Morrison drove her to the Highlander Hotel, where they met up with Mr Woods and Mr Lindsay.  All four played the pokies.  They then left together, and her and Mr Morrison were dropped off at her address.

33. In cross-examination, it was put to Ms Borsi-Watson, and she accepted, that it was possible that Mr Morrison left the address during the evening while she was sleeping. 

34. The appellant engaged in a record of interview with police on 4 November 2019.[1]  He denied the offending and whilst he admitted knowing both Mr Lindsay and Mr Woods, he said that he did not like Mr Woods, who had been in a relationship with his niece, Ms Agius, and had been violent towards her in the past. 

    [1]     Trial Exhibit P38.

    The defence case

35. The appellant did not give evidence, nor call any evidence.

36. Defence counsel for the appellant submitted that the jury could not be satisfied beyond reasonable doubt that the offender armed with the tyre iron was the appellant.  Defence counsel suggested that any number of other men could have been involved.  In particular, the prosecution had not excluded as a reasonable possibility that the three men who committed the robbery were, in fact, Mr Morrison, Mr Lindsay and Mr Woods.  It was emphasised that they were shown together later that morning in the silver Hyundai, and at the Highlander Hotel, suggesting they were gambling the stolen money.

37. Defence counsel also submitted that Ms Borsi-Watson was not a reliable or credible witness as she had, in the past, been the subject of violence from Mr Morrison and withdrawn allegations against him. In the alternative, at the very least, she accepted that he could have left the house while she was sleeping. 

38. Defence counsel also submitted that the CCTV images of the offender were equally consistent with the appearance of Mr Morrison, and indeed Mr Lindsay or other males (such as Kym Lebois who was in the company of Mr Woods when he was arrested on 11 October 2019).  Defence counsel highlighted Dr Sorrell’s evidence that there are limitations when comparing the CCTV images with other photographs, or the appellant in person, including the differences in lighting conditions and the variation to skin colour caused by CCTV.

39. Defence counsel also emphasised that there was no forensic evidence linking the appellant to the property stolen during the robbery, nor was he at the Highlander Hotel in the company of both co-accused gambling later that morning (unlike Mr Morrison).  There was no evidence that he was in possession of the proceeds of the robbery.  In addition, the telecommunication evidence does not go so far as to establish that the appellant met up with Mr Lindsay, it simply puts their mobile phones in the same suburb.

    Unreasonable verdict

40. The appellant’s sole ground of appeal is that the verdicts are unreasonable and unsupported by the evidence.

41. In determining this ground of appeal, the Court must ask itself whether, upon an assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  In answering this question, an appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; or that the jury has had the benefit of having seen and heard the witnesses.  Rather, an appellate court must pay full regard to those considerations.[2]

    [2]     M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).

42. The relevant question is whether the jury must, as opposed to might, have entertained a doubt about the appellant’s guilt.[3]

    [3]     Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

1. In the present case, the appellant challenges the strength of the inferences to be drawn from the CCTV footage and mobile phone evidence, and submits it does not establish beyond reasonable doubt that he was, in fact, one of the three male offenders. The appellant contends that the prosecution has not excluded, as a reasonable possibility, that Mr Morrison or some other male was the male offender armed with a tyre iron.

2. Having regard to the whole of the evidence, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt for the following reasons: 

   1.    There was an association between the appellant and both co-accused at a time proximate to the robbery. In his record of interview, the appellant admitted he knew Mr Lindsay and Mr Woods (although he expressed his dislike for Mr Woods). It was open to the jury to infer from the telecommunication evidence that the appellant had contact, by way of phone calls and text messages, with Mr Lindsay in the hours leading up to the robbery, and afterwards. There was a phone call made at 1:00am on 9 October 2019 between Mr Lindsay and the appellant, and immediately after this phone call, Mr Lindsay’s mobile phone moves north towards Gepps Cross.  There was evidence that the appellant’s mobile phone was in the vicinity of Gepps Cross at about an hour before the robbery, and at Paralowie and Bolivar after the robbery.  From this evidence, it was open to the jury to infer that the appellant and Mr Lindsay agreed to meet, and that they were moving in the same direction towards the Hotel at a time proximate to the robbery. 

   2.    The appellant’s mobile phone contact with Mr Lindsay needed to be considered in the context of Mr Lindsay’s fingerprint being located on a coin tin stolen from the Hotel. The coin tin was located within five hours of the robbery. It also needed to be viewed in light of the fact and timing of Mr Lindsay’s contact with Mr Woods and the forensic evidence linking Mr Woods to the recovered property stolen during the robbery.

   3.    Upon our own independent review of the CCTV footage and the arrest photographs of the appellant, there is a marked similarity between the appearance of the offender and the appellant. This includes his prominent nose, a distinctive furrowed brow and a similar body shape, namely short, stocky and muscular. We have had regard to the appellant’s submission (made at trial and to this Court) that the offender has a ‘widow’s peak’ which the appellant does not. However, the appellant’s hairline in the photograph taken on 14 September 2019 is strikingly similar to the offender’s hairline, however described.

   4.    The appellant’s appearance is not inconsistent with the witnesses’ descriptions of the offender with the tyre iron.

   5.    It was open to the jury to accept the evidence of Ms Borsi-Watson that she went to sleep with Mr Morrison and woke to find him still at her home. This evidence supported the prosecution case that it was not reasonably possible Mr Morrison was one of the three offenders.

   6.    The offender’s depiction in the CCTV footage is noticeably different to the photographs tendered of Mr Morrison, Mr Lindsay and Mr Lebois, such that it was open to the jury to exclude as a reasonable possibility that any of those males was the offender.

3. Upon our own independent assessment of the whole of the evidence, and notwithstanding the appellant’s criticisms of the quality and sufficiency of that evidence, we are satisfied it was open to the jury to find beyond reasonable doubt that the appellant was guilty of the charged offence.  This was not a case where the jury must, as distinct from might, have had a doubt.

4. For those reasons, we grant permission to appeal but dismiss the appeal.

   Order

   1.    Permission to appeal is granted.

   2.    The appeal is dismissed.