Rogers and Rogers v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2009 0973

ADAM CHARLES ROGERS
	Applicant
v
THE QUEEN	Respondent

and

S APCR 2009 0984

PHILLIP WALKER ROGERS
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and MANDIE JJA, WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2011
DATE OF JUDGMENT:	9 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 412
JUDGMENT APPEALED FROM:	R v Adam Charles Rogers and Phillip Walker Rogers (Unreported County Court Judge Duckett, Date of Conviction: 28 August 2009); R v Adam Charles Rogers and Phillip Walker Rogers (Unreported, County Court, Judge Duckett, Date of Sentence: 16 December 2009)

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CRIMINAL LAW – Armed robbery –Whether jury verdict was unreasonable and could not be supported by the evidence

CRIMINAL LAW – Evidence – False denials in police interview – Whether failure to give Zoneff direction productive of miscarriage of justice

CRIMINAL LAW – Evidence – Guilty pleas – Whether failure to give propensity direction productive of miscarriage of justice

CRIMINAL LAW – Evidence – flight – Consciousness of guilt – multiple count presentment – Whether evidence of flight from police capable of being probative with respect to any of the charged offences – Directions to jury – R v Ciantar (2006) 16 VR 26 applied – Leave granted – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Adam Charles Rogers	Mr G M Hughan	Robert Stary Lawyers
For the Applicant Phillip Walker Rogers	Mr C B Boyce	Leanne Warren & Associates
For the Crown	Ms C Quinn	Ms J Powell, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Mandie JA.

MANDIE JA:

Introduction

The applicant Adam Charles Rogers (‘AR’)[1] seeks leave to appeal against a number of convictions by a County Court jury and, if the convictions are sustained, seeks leave to appeal against sentence. The applicant Phillip Walker Rogers (‘PR’), who is the younger brother of AR[2], likewise seeks to appeal against conviction and sentence. All of the convictions (apart from a conviction of AR for dishonestly handling stolen goods) related to events that occurred on 15 August 2007.
[1]AR was born on 2 June 1977.
[2]PR was born on 10 January 1980.

The relevant charges against the applicants may be summarised as follows:

On Presentment No C0705897.2
PR was charged with possession of heroin
On Presentment No C0705897.4
Count 1: AR was charged with theft of Ford Falcon BXP 427 the property of Daryl Campbell
Count 2: PR and AR were charged with armed robbery (by way of a knife) at Australia Post, Blackburn (‘the Australia Post robbery’)
Count 3: PR was charged with armed robbery (by way of a knife) at Middleborough Cellars, Box Hill South (‘the Middleborough Cellars robbery’)
Count 4: PR and AR were charged with armed robbery (by way of a knife) at ‘Video Ezy’, Montrose (‘the Video Ezy robbery’)
On Presentment No C0705897.5
Count 1: AR was charged with the theft of Ford Falcon OVX 414, the property of Carmine Cervini
Count 2: AR was charged with robbery at Middleborough Cellars, Box Hill South (at the time PR having with him a knife)

On Presentment No C0705897.6
AR was charged with dishonestly handling stolen goods

PR pleaded guilty to the charge of possession of heroin and not guilty to all of the other charges against him. AR pleaded guilty to the counts of armed robbery relating to the Middleborough Cellars robbery, to the theft of OVX 414 and to the charge of dishonestly handling stolen goods. AR pleaded not guilty to the other charges against him (that is, the theft of BXP 427 and the Australia Post and Video Ezy robberies).

The jury acquitted AR in relation to the theft of BXP 427 and convicted AR and PR in relation to all other charges in respect of which they had pleaded not guilty.[3]
[3]The conviction of PR in relation to the Middleborough Cellars robbery was by majority verdict (10 of the 11 jurors).

On 16 December 2009, AR was sentenced as follows: for the Australia Post robbery, three years’ imprisonment (base sentence); for the Video Ezy robbery, three years’ imprisonment, two years to be served cumulatively; for the theft of OVX 414, six months’ imprisonment to be served cumulatively; for the Middleborough Cellars robbery, two years’ imprisonment, one year to be served cumulatively; for dishonestly handling stolen goods, six months’ imprisonment to be served cumulatively. The total effective sentence was thus seven years and a non-parole period was fixed of five years and six months.

On the same date, PR was sentenced as follows: for possession of heroin, no penalty imposed; for the Australia Post robbery, five years’ imprisonment (base sentence); for the Middleborough Cellars robbery, five years’ imprisonment, three years to be served cumulatively; for the Video Ezy robbery, five years’ imprisonment, three years to be served cumulatively. The total effective sentence was thus 11 years and a non-parole period was fixed of nine years.

Grounds of appeal against conviction - PR

A number of grounds of appeal were abandoned by PR, including a ground that a substantial miscarriage of justice arose by virtue of PR being tried jointly with AR. It should be noted that the pleas of guilty to some of the charges by AR and some admissions that he made meant that the jury had to be careful to disregard those matters when considering the evidence against PR. It was not contended that the judge failed to properly direct the jury in that regard. In the end the following grounds only were pressed on behalf of PR:

1.The verdict of the jury is unreasonable or cannot be supported having regard to the evidence;
5.The learned trial judge erred in his directions to the jury in respect of [consciousness] of guilt.

Grounds of appeal against conviction - AR

AR relied upon the following grounds of appeal. Ground 5 was the same as PR’s ground 1, namely that the guilty verdicts were unreasonable or could not be supported having regard to the evidence. The other grounds were that there had been a substantial miscarriage of justice because the trial judge failed to direct the jury adequately or at all[4]

2.as to the use the jury could make of AR’s pleas of guilty to charges of theft of a motor vehicle and armed robbery
3.as to the use the jury could make of lies told by AR in his record of interview;

4. as to the use the jury could make of evidence of the flight of PR.
[4]Ground 1 was abandoned.

Ground 1 – PR; Ground 5 - AR

I will deal first with PR. In order to consider this ground, it is first appropriate to indicate the fundamental issues confronted by the jury. There were three armed robberies by a person, identified by witnesses as a male, wielding what appeared to be a large kitchen knife. The offender’s face was covered. The question for the jury was whether the prosecution had established beyond a reasonable doubt that this male person was PR in respect of each or any of the robberies. As stated earlier, the robberies all occurred on 15 August 2007.

The first robbery was the Australia Post robbery which took place at about 2.55pm. A male person entered the Australia Post shop in Chapel St, Blackburn. CCTV footage shows that he was wearing a black balaclava, light coloured pants, a black jacket and black belt and white sneakers and shows him jumping the counter. He stole $3,633 in cash before again jumping the counter and departing.

The second robbery was the Middleborough Cellars robbery which took place at about 6.50pm. There was no video footage of this robbery. A male person entered the Middleborough Cellars store in Middleborough Rd, Box Hill South. He stole two four-packs of cans of Jack Daniels and Cola (‘Jack Daniels’) and $700 in cash. He then ran from the store.

The third robbery was the Video Ezy robbery which took place at about 9.10pm. CCTV footage shows a male person wearing a black balaclava, light coloured pants, a black jacket and white sneakers entering the store. This person stole about $676 from the cash register, including a number of gold coins (ie $2 and/or $1 coins) and then ran from the store.

The prosecution relied on circumstantial evidence to establish that this robber was PR. The circumstantial evidence included but was not limited to the following (in relation to which I will give more detailed consideration after summarising the submissions of the parties):
·     A comparison of the clothing seen on the CCTV footage with the clothing that PR was wearing when under surveillance and when later arrested on the same day;
·     Surveillance evidence of PR and AR, including their association with the stolen vehicle OVX 414;
·     Eyewitness identification of a vehicle registered number OVX 414 departing from outside Middleborough Cellars after the robbery;
·     PR having been found, upon his arrest, to be in possession of a considerable quantity of $2 and $1 coins;
·     Discovery of two unopened cans of Jack Daniels and one crushed used can of Jack Daniels at the residence of AR and PR on the day of the robberies and after their arrest.
Counsel for PR referred to and relied upon M v R[5] and passages in the judgment of Mason CJ, Deane, Dawson and Toohey JJ, including the following often cited passage:[6]

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

[5](1994) 181 CLR 487.

[6](1994) 181 CLR 487, 494-495.

Counsel submitted that there was insufficient evidence to exclude the reasonable possibility that the person who committed each of the armed robberies was someone other than PR. Counsel submitted that there was insufficient similarity (although there was some similarity) between the clothing worn by the robber as seen in the videos of the Australia Post robbery and the Video Ezy robbery and the clothing worn by or in the possession of PR when he was arrested. Counsel also pointed to differences between the clothing worn by the robber at Australia Post and the robber at Video Ezy. Counsel also relied upon the varying descriptions of witnesses in relation to the clothing worn by the robber at Middleborough Cellars (where there was no video available).

Counsel said there was no evidence implicating PR prior to 2.55pm. There were some similarities ‘such as they are’ in the clothing worn by the robber at Australia Post with the clothing worn by PR. There was surveillance evidence between 4.03pm and 5.59pm linking PR and AR with OVX 414 and, at 6.50pm OVX 414 was seen to depart out of the car park of Middleborough Cellars and to move off in a relatively hurried manner. At 7:07pm, OVX 414 was seen for about four minutes by Senior Constable Cantillon being driven erratically. Counsel also referred to the arrest of the applicants at 9.38pm and to PR being in possession of $575, of which $31 was in coins and to the discovery of three Jack Daniels cans in the home shared by PR and AR in respect of which ‘the evidence was that that batch could not be excluded from the batch or the type of cans … or a similar batch that were held in the Middleborough Cellars refrigerator.’ Counsel also referred to the ‘flight’ by PR prior to his arrest and to his explanation in relation to Jack Daniels in his record of interview.

Counsel for PR submitted that the case against PR was probably the weakest in respect of Middleborough Cellars because the description by the witnesses of the clothing of the robber bore little similarity to the clothing worn by PR upon arrest. Counsel next submitted that in relation to the Australia Post and Video Ezy robberies ‘it comes down essentially…to the clothes.’ Counsel said that the Court would be in the same position as the jury once it had viewed the CCTV footage and inspected the clothing exhibits. Counsel submitted that one simply could not be satisfied beyond reasonable doubt on the basis of the similarities between ‘those generic clothes’ that the offender was PR. By ‘generic’ I understood counsel to mean that the clothing was not unusual and quite common clothing, such that any number of people could be found wearing that clothing. In reply, counsel added that the evidence of the presence of PR in each of the three armed robberies ‘creates a suspicion, perhaps even a deep suspicion’ but that ‘it doesn’t get there in the end. ‘

The respondent submitted in substance that a careful consideration of the clothing seen in the videos of the Australia Post and Video Ezy robberies and the clothing worn by PR on his arrest showed that the same person committed both robberies and that that person was PR. In relation to the Middleborough Cellars robbery, the respondent submitted that the surveillance evidence showed PR and AR departing from the vicinity of their home in OVX 414 at around 5.09pm, the robbery at Middleborough cellars occurring at about 6.50pm[7] and OVX 414 having been seen at about 7:07pm driving erratically in a direction away from where the Middleborough Cellars robbery had taken place. Counsel for the respondent then referred to the evidence that the applicants were seen walking towards their house (from a place around the corner from their house where OVX 414 was found the next day) and that this was about half an hour after the Video Ezy robbery. The respondent then referred to the flight by PR and his having been found in possession of the coins.
[7]Of course, counsel for PR had accepted that OVX 414 had been seen hurriedly leaving the scene of the Middleborough Cellars robbery.

The respondent said that the most important piece of evidence against PR was the clothing combination. The respondent also mentioned shoe prints found on the Australia Post store counter that were consistent with the sole pattern of PR’s sneakers.

The evidence against PR does not, in my opinion, contain discrepancies, display inadequacies or otherwise lack probative force in such a way as to lead to a conclusion that there is a significant possibility that PR was innocent of the three robbery charges of which he was convicted. In my opinion, upon the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that PR was guilty of these three charges. I reach those conclusions for the following reasons and having viewed the CCTV footage, the surveillance videos and having inspected the clothing exhibits, as well as considering the entirety of the other evidence.

The CCTV footage of the Australia Post robbery shows a person (identified by eyewitnesses as a male person speaking with an ‘Australian’ accent) wearing a black balaclava, a black jacket, light coloured pants, a black belt and white sneakers. The light coloured pants are what a number of witnesses described as ‘cargo pants’ and their colour seems probably to be grey or, at least, a light colour similar to grey. The person also appears to be wearing a mustard coloured shirt under the black jacket or, at least, what can be seen under the jacket is not inconsistent with that conclusion. Witnesses described the robber as carrying a long knife, as being in his twenties, thin, of medium build and about 5’ 7’’ to 5’ 10’’ in height. A shoe print on the counter upon which and over which the man had jumped was subsequently photographed and these photographs were put in evidence.

About one hour after the Australia Post robbery, police saw stolen car OVX 414 arrive at 40 Mountfield Road, Kilsyth where the applicants lived. AR got out of the driver’s seat of the car and PR got out of the front passenger seat. PR was described by one of the police witnesses as appearing to be aged 25-30, ‘an Australian looking male’ with short brown hair, about 175cm (5’ 8 ½’’) in height and wearing a mustard coloured polo top. PR was then seen walking away from the boot of OVX 414 with a green coloured bag in each hand. At the same time, AR was seen at the boot. A few minutes later, AR was seen driving OVX 414 down Mountfield Road and into Lomond Avenue where he parked the car. AR then walked back and rejoined PR in the front yard of their house and they subsequently entered the house. About 40 minutes later, PR emerged from the house wearing a bright red t-shirt underneath a black jacket. He went back inside the house and, at about 5.07pm, emerged with AR and both of them walked down Mountfield Road.

When PR was arrested at about 9.30pm that evening, he was wearing the red t-shirt, a black reversible jacket, grey coloured cargo pants, a black belt and white sneakers.

The cargo pants that PR was wearing when arrested appear to be the same or very similar, both as regards shape and colour, as the cargo pants worn by the robber in the Australia Post robbery. The white sneakers are also very similar. The wearing of a black belt is consistent with the robber being PR. The police sighting of the mustard coloured top is consistent with what could well be a mustard coloured top worn by the robber under his black jacket. However, the black jacket in the video appears to be shorter than the black jacket being worn by PR when he was arrested. The shoeprints found on the store counter are consistent with the sole pattern of the sneakers being worn by PR when he was arrested.

I have mentioned that PR and AR were observed by the police coming out of their house at about 5.09pm. There is then police evidence about movements by PR and AR both using OVX 414 and also moving about on foot, the details of which are unnecessary to set out. It is sufficient to note that the police observed them both entering OVX 414 at about 5.55pm and moving off in the general direction of Box Hill South, with AR driving and PR a passenger. I will refer later to mobile telephone record evidence relating to a phone in the possession of AR. At this stage it can be mentioned that those records show that at 6.00pm, AR was probably in the general vicinity of Ringwood East and at 6.14pm in the general vicinity of Mitcham.

The Middleborough Cellars robbery occurred at about 6.50pm in Box Hill South. The robber stole two four-packs of Jack Daniels and $700 in cash. There was no CCTV footage. The eyewitness descriptions from the shop owner, her daughter and a shop assistant contained some discrepancies but there were a number of matters on which the witnesses agreed. They all agreed that the robber was brandishing a knife. The owner’s daughter said that the robber was wearing cargo pants – sporty kind of pants with side pockets and other pockets. She said that he had a hat on and a dark black scarf covering his mouth. She described the hat as a red beanie. She said that he was wearing sneakers. The owner said that the robber was wearing a dark blue or black jumper, a black cover on his face and black trousers. She said that the head covering was black, not red but couldn’t remember whether it was a beanie or not. The shop assistant said that the robber was about 175cm in height and thin, had a black beanie over his head and ‘another black’ over his face, black gloves, black jacket and black trousers.

Importantly, immediately after the robbery, a witness saw OVX 414 move at a very fast pace from a parking bay outside the Middleborough Cellars (it had been parked nose outwards). The evidence thus provided a link between the applicants and OVX 414, and OVX 414 and the robbery.

Further, the police evidence was to the effect that, at 7.07pm, OVX 414 was observed proceeding east in Canterbury Road, Vermont South. The vehicle was travelling above the speed limit and driving in an erratic fashion, changing lanes on numerous occasions. Contact was lost with the vehicle after about four minutes because of the speed at which it was travelling.

After the arrest of the applicants, the police found two full cans of Jack Daniels and one used crushed can of Jack Daniels at their house. There was evidence linking those cans with the batch of Jack Daniels cans at Middleborough Cellars, which the judge summarised in his charge as follows:

all the cans that are in evidence before you have the same batch number, the same syrup number and the same date of manufacture as some of the Jack Daniels cans that were seized by police from the Middleborough Cellars and exhibited as Exhibit G. You will recall the evidence of Mr Jackson as to the number of cans manufactured and the possibility or the likelihood of cans getting mixed up, but in any event it appears you can check for yourselves the numbers on all the cans in evidence are all the same. [8]

[8]No objection or challenge was raised at trial to this summary.

After his arrest, PR was interviewed by the police and denied all allegations. In the course of that interview it was put to him that he had stolen some Jack Daniels cans from the Middleborough Cellars and he was asked whether he had anything to say about that. He replied:

No. Not really at all. I had a drink tonight which were Jack Daniels. Which I got from a mate’s house on – where I was. Kicking back with my brother and yeah that’s about it. We had a good drink tonight at my mates’ which were Jack Daniels. Quite surprisingly, yeah.’

PR added that he got the Jack Daniels from the mate’s house who had bought a slab but PR would not say where his mate lived or who he was.

I would reject, and in my opinion it was open to the jury to reject, PR’s explanation in his record of interview for the presence of the Jack Daniels cans in his house. I consider that it was open to the jury to be satisfied beyond reasonable doubt that PR was the robber in the Middleborough Cellars robbery, having regard in particular to the police surveillance evidence demonstrating a connection between PR and AR and OVX 414, the eyewitness evidence relating to OVX 414 departing from outside the Middleborough Cellars and being subsequently observed travelling in an easterly direction at a fast speed along Canterbury Road, the discovery and identification of the Jack Daniels cans, the eyewitness descriptions of the robber at the Middleborough Cellars (notwithstanding the discrepancies) and the evidence (to which I will next refer) concerning the appearance and modus operandi of the robber in the Video Ezy robbery. I do not agree with the submission by counsel for PR that the case against PR was probably the weakest in respect of the Middleborough Cellars robbery. In my opinion, the case against PR in relation to Middleborough Cellars is as strong, if not stronger, than the case in relation to the other robberies.

The CCTV footage of the Video Ezy robbery (at 9.10pm) shows a person wearing a black balaclava, grey cargo pants, a black jacket and white sneakers in the store and holding a large knife. The person is seen going behind the counter, approaching a shop assistant and is then seen removing something from a cupboard. A stock room assistant gave evidence describing the robber as a male wearing dark colours, carrying a knife and said that he took about $600-$650 and then ran from the store. The owner of the store (who was not present at the time of the robbery) gave evidence that all the notes and gold coins (leaving only silver coins) had been removed from the till. He said that the total cash stolen was about $676.

At 9.29pm, about 19 minutes after the robbery, police saw PR and AR crossing Cambridge Road and entering Mountfield Road, Kilsyth. They were wearing the same clothing as when they were observed between 5.15pm and 6.00pm. PR was wearing a red top underneath a dark coloured jacket and grey coloured cargo type pants. Police evidence was to the effect that when a number of policemen followed AR and PR, PR began running at a fast pace despite being required to stop. Senior Constable Bremner had a firearm out and was shouting ‘stop, police, stop, get on the ground’ and Sergeant Cooper was shouting ‘stop, police, stop’. The police were in civilian clothing but wearing vests showing clearly that they were police. Bremner caught up with PR first and PR had ducked behind a tree. Cooper then arrived, Bremner kicked out at PR pushing him off balance and Cooper sprayed PR with capsicum spray. PR dropped to his knees, was handcuffed and then arrested. The next day, the police located OVX 414 in Mooroolbark, north west of the accuseds’ premises.

The police gave evidence that, after his arrest, PR was found to be carrying a brown wallet containing both notes and coins. The notes were: $100 x 1, $20 x 8, $10 x 3 and $5 x 7. The coins were: $2 x 9 and $1 x 13 (totalling $31).

The cargo pants that PR was wearing when arrested appear to be the same or very similar, both as regards shape and colour, as the cargo pants worn by the robber in the Video Ezy robbery (and also in the Australia Post robbery). The white sneakers are also very similar to those that PR was wearing when arrested. The black jacket that PR was wearing when arrested appears to be the same as or very similar to the jacket worn by the robber in the Video Ezy robbery (although apparently longer than the black jacket worn in the Australia Post robbery).

I think it was open to the jury to be satisfied beyond reasonable doubt that PR was the robber in the Video Ezy robbery, having regard in particular to the striking clothing similarities to which I have referred and to PR’s possession of a fairly comprehensive collection of notes and coinage, in particular the unusual quantity of only gold coins. I also think it was open to the jury to be satisfied beyond reasonable doubt that the robber in each of the robberies was the same person and that therefore the robber in the Australia Post robbery was also PR. A conclusion that the robber in each of the robberies was the same person is, to my mind, supported primarily by a consideration of the evidence relating to the clothing of the robber and to the clothing of PR and the modus operandi of the robber on each occasion but also by consideration of the totality of the evidence to which I have referred, including the evidence as to the location of the residence of the accused, the locations and times of the robberies, the locations where OVX 414 was stolen and then found, the police evidence as to movements and times both in relation to the vehicle and to the accused persons.

The jury was entitled to consider whether, and to conclude that, in the light of the whole of the evidence, an inference of guilt beyond reasonable doubt should be drawn from a combination of the facts, although no single one of them viewed in isolation would support that inference.[9] The individual facts in the present case constitute what Dawson J referred to in Shepherd v R[10] as ‘strands in a cable’ and, taken together, they are capable of leading to the inference beyond reasonable doubt that PR was the robber in each of the robberies.
[9]Chamberlain v R [No 2] (1984) 153 CLR 514, 536.
[10](1990) 170 CLR 573, 579.

For those reasons, I would reject PR’s ground 1.

I now turn to AR’s position. Counsel for AR accepted that the strength of the prosecution case against AR depended in large part upon the strength of the case against PR coupled with AR’s admissions in his record of interview that conveyed in substance that he was with his brother (PR) all day,[11] together with the police surveillance evidence of the two of them.
[11]As counsel put it, AR admitted in his record of interview that ‘I was with my brother all day, in a nutshell …’ or ‘I was with my brother for the day’.

I note here that, in his record of interview, AR had denied guilt in relation to all relevant alleged offences. However, there was some incriminating evidence found in his room after his arrest. The police found an ANZ Master Card in the name of Carmine Cervini, the owner of OVX 414 (and also a pair of woolly gloves and a black balaclava). This may have influenced AR’s subsequent pleas of guilty in relation to the theft of OVX 414 and the charge of armed robbery at the Middleborough Cellars. At trial, AR agreed to a number of facts pursuant to s 149AB of the Evidence Act 1958, including the following:

1.On the 15^th August 2007 AR was driving a Ford Sedan with Victorian registration of ‘OVX414’ which was owned by Carmine SAVINI;
2.At the time that AR was driving OVX414 he knew that the car was stolen;

…
4.On the 15^th August 2007, AR was driving motor vehicle OVX414 in the vicinity of Middleborough Cellars;

…
6.The person who committed the armed robbery [at Middleborough Cellars] left the scene in the car OVX414 driven by AR;
7. AR knew that the person had committed the crime of armed [robbery] and assisted him to leave the scene

Counsel for AR, who addressed first, adopted what was to be advanced by counsel for PR in support of this ground. In addition, he submitted that the evidence directly implicating AR in the other robberies was ‘very slim indeed’. Counsel said that the direct evidence against AR appeared to be:

the presence of his telephone and there, by inference, his person and not unreasonably so, in areas that geographically connected with the offending, that is the telephone records showing, for example, that calls were made from certain places at certain times on the day and the coincidence between those times and places and, for example, travel between the home in Kilsyth and the area at which the Video Ezy robbery occurred which was in the nearby area of Montrose.

Counsel for AR said that the record of interview contained no admissions in respect of armed robbery but did contain the significant admission of the presence with PR. Counsel said that the only other evidence was from a witness who gave a description of the driver of a blue Ford Falcon outside the area where the Australia Post robbery had occurred. By inference at least, counsel was adopting the submission of his predecessor at trial that this identification evidence was inadequate and I would agree. Counsel pointed out that there was no connection established between stolen vehicle OVX 414 and the Australia Post robbery or the Video Ezy robbery and, further, that, in relation to the theft of the other stolen vehicle that might have been connected with the Australia Post robbery, AR had been acquitted by the jury of that charge. From all of this, counsel submitted that:

… it does become very important to examine the case against [PR] in determining whether [AR] can be seen to be guilty in respect of whether the verdict is reasonable or otherwise in respect of the charges of armed robbery of those two establishments, Australia Post and Video Ezy.
…
Really, the strength of the case comes from the apparent strength of the case against [PR] but that apparent strength, really, in my submission, isn't there. My learned friend will no doubt address you in respect of that. I say it really rests on the evidence relating to the clothing and the observations of clothing as against the clothing of the armed robber and the clothing worn by [PR] and some cash in the presence of [PR] but not much more than that.

Counsel for AR criticised the phone use evidence, pointing out that each of the mobile phone towers served a broad geographical area.

Counsel for the respondent submitted that the evidence linked AR’s phone to calls that were made around about the times of the armed robberies and in their vicinity. She also referred to a number of other circumstances, including the evidence that the brothers were together, the fact that there had to be a driver of any car involved (such as the one observed at the Australia Post robbery).

In summarising the above submissions I have mentioned counsel’s references to the evidence of AR’s use of his mobile telephone (‘mobile’). The prosecution called expert evidence about this, dealing with the locations of the base stations that relayed various calls made or received by AR’s mobile and as to the areas covered by each of these base stations. For example, the phone records showed that AR’s mobile was in the Forrest Hill area at about the time that OVX 414 was stolen. In relation to the Australia Post robbery in Blackburn at 2.55pm, the phone records show that AR’s mobile was near Mitcham at 3.09pm, near Ringwood East at 4pm, near Kilsyth East at 4.02pm, thus indicating movement from the general area of Blackburn to the general area of the accuseds’ residence. Of course it was shortly after 4pm that the police saw AR and PR emerging from OVX 414 in Mountfield Road, Kilsyth. In relation to movement before the Middleborough Cellars robbery in Box Hill South at 6.50pm, the phone records show movement from the area of Ringwood East at 6.00pm to Mitcham at 6.14pm and, after the robbery, the phone records show that AR’s phone was near Burwood East at 6.58pm, near Heathmont South at 7.14pm, near Boronia at 7.20pm and 7.39pm, near Croydon North at 7.41pm, near Montrose at 7.44pm, near Ringwood East at 7.46pm and near Kilsyth East at 8.10pm. In relation to the Video Ezy robbery in Montrose at 9.10pm, the phone records show AR’s phone as being near Croydon North and/or Ringwood East at 9.25 to 9.30pm. AR was found to be in possession of the relevant mobile upon his arrest. It can be said that the phone records are generally consistent, and certainly not inconsistent, with AR being in or moving to or from the locations of the relevant offences.

In my opinion, a number of evidentiary matters point to AR’s guilt in relation to the Australia Post and Video Ezy robberies. The primary matter is that, given the conclusion that PR was the robber, AR had admitted being with PR throughout that day.[12] To that should be added the police surveillance evidence showing the connection of AR and PR with stolen OVX 414, their being together before the Middleborough Cellars robbery and after the Video Ezy robbery at the time of their arrest, AR’s admission that he was the driver of OVX 414 in relation to the Middleborough Cellars robbery and the evidence from the phone records. However, although the evidence points to AR’s guilt in relation to the Australia Post and Video Ezy robberies, I do not think that it was open to the jury to be satisfied beyond reasonable doubt of AR’s involvement in the Australia Post robbery. The reasonable possibility that PR committed that robbery by himself or with the assistance of some other person as a driver cannot be excluded. On the other hand, I think it was open to the jury to be satisfied beyond reasonable doubt that AR was involved in the Video Ezy robbery having regard to the totality of the evidence, including in particular the evidence that AR and PR were together both before and after that robbery and were associated with the movements of OVX 414 both before and after that robbery.
[12]In his record of interview, although at that stage denying involvement in any of the robberies, AR gave an account of his movements that involved him being with PR throughout the day.

I would therefore uphold AR’s ground 5 but only in relation to the Australia Post robbery.

Ground 5 – PR; Ground 4 – AR

Prior to closing addresses, the trial judge raised the issue of PR’s flight with the prosecution. The learned prosecutor indicated that the evidence was relied upon only as against PR and was not relied upon in relation to any particular charge but simply upon the basis that the jury could infer from his flight that he had something to hide. In addressing the jury, the learned prosecutor said that the prosecution asserted ‘he’s taking off because he knows he’s been up to no good’ and that:

It doesn’t necessarily prove he did the Middleborough Cellars or the Australia Post, but it's so close in time to Video Ezy you’d think, well, why would you take off with police drawing guns, saying, ‘Stop, police’? There’s a number of them gave a description of what happened there. We say he knew he was up to no good and would be in trouble, and he panicked at that moment when the - that's the explanation for his behaviour, but His Honour will give you a direction about that and how you can use it…

In relation to PR’s ‘flight’, the learned trial judge directed the jury as follows:

In this context, … one of the facts that the prosecution rely on in support of their case is with respect to [PR], that he ran off when he was approached by the police in the road up near his home. The Crown has advanced evidence that [PR] fled from the police so as to avoid apprehension, and the Crown says that you can infer guilt from that fact.
I give you the following directions about that argument. Evidence that the accused is conscious of his own guilt is of course evidence of that guilt. However, before you can infer such a consciousness of guilt from the accused's flight, you must be satisfied of the following things. First you must be satisfied that the accused did indeed flee, not merely that he went about his affairs in a manner which necessitated his absence from where others might have expected him to be. Second you must be satisfied that the cause of the accused's flight was the accused's desire to escape the consequences of one or other or all of the crimes with which he has been charged in this trial, not to escape the consequences of some other wrongdoing or the problems which the accused's life might then have contained, such as a fear of being wrongly accused of one or all of these crimes.
When you are satisfied beyond reasonable doubt that the accused did flee and did so because of a consciousness of guilt of any of these crimes before you today, you could use the evidence of the accused’s own consciousness of guilt as evidence of actual guilt. In doing so however, you should be careful to consider the possibility that the accused may have wrongly believed himself guilty. If you are able on the whole of the evidence to exclude that possibility beyond reasonable doubt, evidence of flight becomes evidence of guilt.
The prosecutor has submitted to you that the evidence of flight relates more specifically to the last of the three armed robberies, Count 4, the Video Ezy robbery. This could of course be the result of any of the charged offences. Of course, as I have just directed you, it could have been flight for some other reason.
It was submitted by [counsel for PR] that what took place was the accused was fairly close to his own home on a dark night, and that he suddenly had three persons running towards him. [Counsel] questions whether any of them had the police labels on them that we heard about, although the witnesses said that when they were about five metres away from [PR] they called, ‘Police. Stop.’ [Counsel] then invited you as jurors to consider what you might have done if you had been in a similar situation. That is what is put to you on behalf of the accused man, and that is of course an important matter for you to consider.

There had been no objection to the admissibility of the evidence relating to PR’s flight and no exception was taken to the judge’s direction on the topic.

Counsel for AR submitted that there were two flaws in the judge’s direction. It was submitted that his Honour should not have told the jury that they could use flight to infer guilt if satisfied that the flight related PR’s desire to escape the consequences ‘of one or other or all’ of the crimes with which he had been charged. Counsel submitted that this was wrong because the flight may have related to any one of the alleged armed robberies and therefore, in respect of any particular offence, the jury could not exclude the hypothesis that the flight related to another one of the offences. The second flaw was said to be that the jury could not have concluded that flight might have occurred because PR wrongly believed himself to be guilty and this aspect of the direction undermined the more appropriate direction that the judge had given that PR may have fled because of the fear of being wrongly accused of one or all of the offences. Counsel submitted that the direction was wrong because the evidence of flight could not be used as an admission of guilt by PR in relation to any particular offence charged and, in any event, that PR’s flight could not be used as evidence against AR.

PR, in written submissions, contended that the judge had misdirected the jury because the prospect of PR wrongly considering himself guilty of the crimes was unlikely in the extreme, his defence being that he was not present at any of the armed robberies. PR submitted that the jury would easily have excluded the possibility advanced by the judge and thus would have employed the alleged evidence of consciousness of guilt on a faulty premise. Counsel for PR also adopted the submissions advanced on behalf of AR.

The respondent submitted that the judge in substance directed the jury, in relation to flight, that they should consider the possible reasons why PR may have acted in the manner in which he did. His Honour then summarised the submissions made by counsel in this regard. The respondent submitted that the directions given were sufficient. The respondent said that the judge’s direction as to flight was to be seen in the context of the whole of the charge.

I think there is considerable force in the applicants’ criticism of the judge’s direction to the effect that his Honour advanced alternative explanations for flight which were so implausible in the context as to be unhelpful and possibly misleading to the jury. However, I think that there is a more fundamental problem to which the applicants also pointed.

In my opinion, the approach taken by the prosecution to the evidence of flight was misconceived. It did not assist the prosecution case to suggest to the jury that PR’s flight showed that he was ‘up to no good’ and that he would be in trouble. The establishment of that state of mind could not lead, in the circumstances of this case, to an inference of guilt in relation to any particular charged offence. For example, upon arrest, PR was found to be in possession of heroin and indeed pleaded guilty to that charge. His guilty flight, if any, could have related to that. Nor do I think that PR’s flight could be used as evidence of consciousness of guilt in relation to the Video Ezy robbery merely because that was closest in time to PR’s arrest. As the judge rightly pointed out to the jury, the flight could have been ‘the result of any of the charged offences’.

In my opinion, the judge should have told the jury that the evidence of flight could not be used at all as evidence of consciousness of guilt, even if they could exclude beyond reasonable doubt all reasonable innocent explanations. That is because, as the applicant submitted, PR’s flight was not capable of being attributed to any particular offence that he may have committed. It was intractably neutral as between the three armed robberies of which he was charged.

As was stated by a bench of five in this Court in R v Ciantar:[13]

… there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.[14]

[13](2006) 16 VR 26, [40].

[14]For an example of a case in which the post-offence conduct was not ‘intractably neutral’ as between a number of offences, see Pollard v R [2011] VSCA 95, [59]-[65] (Neave JA).

In my opinion, in the circumstances of this case, the judge was wrong to direct the jury that, if they were satisfied that his flight was because of a consciousness of guilt ‘of any of these crimes’ (or ‘to escape the consequences of one or other or all of the crimes with which he has been charged’), they were entitled to use that evidence as evidence of ‘actual guilt’ – by that, necessarily meaning actual guilt of each and all of the three armed robberies. If, at best and on the whole of the evidence, PR’s flight could be related to consciousness of guilt of any one of the armed robberies without being able to identify which, it is not logically possible to use the evidence to infer actual guilt of a particular one of them. In other words, I consider that this is a case ‘in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to … another count on the presentment where there is a multiple count presentment …’[15]
[15]R v Ciantar (2006) 16 VR 26, [65].

Although no exception was taken, I consider that a substantial miscarriage of justice has occurred. That is because, in a case that depended upon a fine and detailed analysis of circumstantial evidence in order to identify the armed robber in each of the robberies, the jury were so directed that they may have misused the evidence of flight and been so strongly influenced by it so as to jump to the conclusion that PR was the robber in each of the armed robberies.

I would therefore uphold this ground in relation to both applicants. Given that the guilt of AR was heavily dependent upon proof of the case against PR, it must follow that AR should also succeed on this ground.

I turn to consider the other grounds relied upon.

Ground 2 – AR

The trial judge directed the jury as follows:

… it would be quite wrong to say that simply because you find an accused guilty or not guilty on one count that he must be guilty or not guilty, as the case may be, of another. Each count must be considered separately in the light of the evidence which applies to it. You must ask yourselves as to each count separately, ‘Am I satisfied beyond reasonable doubt by the evidence that this particular accused is guilty of that crime?’ If that question is answered, in your judgment, ‘Yes,’ you should find the accused guilty of that count. If it is answered, ‘No,’ you should find that accused not guilty of it.
…
[Counsel for AR] admitted, said that his client had admitted to offences, but you are not to assume from that that he has committed any other offence, and of course, that is a proper submission to be made by counsel.

Counsel for AR then asked for a propensity direction, arguing that the judge had referred to counsel’s argument rather than giving a clear judicial direction. The judge then re-directed the jury as follows:

Members of the jury, you might recall that when I was referring to [counsel for AR]’s submissions to you at the end of the trial, I referred to his submission at the beginning of his address that the fact that [AR], had admitted two offences and there is evidence before you that [AR] has admitted the theft of the OVX 414 car and also his participation as an aider and abetter in the Middleborough Cellars robbery and that that was a not a matter that you should bring into consideration at all, in relation to the allegation that he has committed the present offences that are before the court.
It does and those admissions do not, in anyway, implicate him in relation to the remaining counts that he faces in this court. It would be wrong and in fact, unlawful, for you to take those admissions into account, in relation to these present counts. You must not reason that because, on those admissions, [AR] is more likely to have committed any of the present offending, so that is an expansion of the ruling that I believe that I gave you in the course of my reference to [Counsel for AR]'s submissions.

In written submissions, AR acknowledged that the judge had told the jury not to reason that AR was more likely to have committed any of the offences to which he had pleaded not guilty by reason of his admissions in relation to the theft of OVX 414 and the Middleborough Cellars robbery. However, AR submitted that his Honour should also have told the jury that they should not reason that AR was the type of person likely to commit the offences charged but his Honour had failed to do so. Counsel for AR elaborated upon this by contending that whilst his Honour had made some attempt at giving a propensity direction, the attempt was inadequate because the jury was not told that they should not reason that he was the type of person that commits an armed robbery and was therefore more likely to have committed the other armed robberies.

The respondent pointed out that this particular direction by the judge had been the subject of an objection on other grounds, that the judge had redirected as requested and that no further exception had been taken. The respondent conceded that the judge had not given a propensity direction but submitted that it was not the kind of case where the risk of propensity reasoning was high and that the different verdicts in relation to the applicant suggested that no propensity reasoning was applied by the jury. The respondent submitted that no substantial miscarriage of justice had occurred.

In my opinion, although not using the preferred formula, the judge, particularly in his redirection, properly directed the jury in substance on this matter. No exception was taken after the redirection. I agree with the respondent’s submissions. I would reject this ground.

Ground 3 – AR

It was said on behalf of AR that the jury necessarily had before them the false denials in AR’s record of interview in relation to the theft of OVX 414 and the Middleborough Cellars robbery (because of the subsequent guilty pleas). AR submitted that, although the prosecution had not sought to rely upon these lies, the jury needed to be directed about the use that could be made of them and that at least a Zoneff direction was required. It was submitted that, although no Zoneff direction was sought, the risk of impermissible use by the jury of the false denials was such that there was a risk of a miscarriage of justice having occurred.

The respondent said that AR’s lies in the record of interview were not relied upon by the prosecution for any purpose and that the prosecution focussed on AR’s admissions in the record of interview rather than his false denials. The respondent added that the only party to refer to and rely upon AR’s lies in the record of interview was his own trial counsel. The respondent submitted that in the context of the evidence and the issues at trial, there was no risk that the jury would have reasoned impermissibly or misused the evidence of lies in AR’s record of interview, that no exception was taken and that no substantial miscarriage of justice had occurred.

I would accept the respondent’s submissions. Further, in my opinion, it would have been prejudicial to AR for the judge to have drawn the jury’s attention to his false denials in the record of interview and it was no doubt for this reason that no Zoneff direction was requested and no exception taken. I would reject ground 3.

Conclusions on conviction applications

I would grant PR leave to appeal against his convictions on the three armed robbery counts, allow the appeal, set aside the convictions and sentences thereon and order a new trial. I would grant leave to AR to appeal against his conviction on the Australia Post and Video Ezy robberies. I would allow his appeal, enter a verdict of acquittal on the Australia Post robbery (count 2 on presentment no C0705897.4) and order a retrial in relation to the Video Ezy robbery.

Applications for leave to appeal in relation to sentences

Having regard to the foregoing, it is unnecessary to consider the applications for leave to appeal against sentence. However, it is necessary to re-sentence the applicants on the charges to which they pleaded guilty.

As regards PR, when he was arrested he had in his wallet a small quantity[16] of heroin wrapped in a tin foil that he had for his own use. PR pleaded guilty to the charge of possession of heroin and was convicted on that charge and the learned sentencing judge imposed no penalty with respect to that offence. I would do likewise.
[16]0.1 grams of a mixture of powder containing the heroin.

The learned sentencing judge, in respect of the charges to which AR pleaded guilty, sentenced AR as follows: for the Middleborough Cellars robbery, two years’ imprisonment, for the theft of OVX 414, six months’ imprisonment and for dishonestly handling stolen goods, six months’ imprisonment. I would adopt what was relevantly stated by the learned sentencing judge about AR and in relation to those charges.[17] I would re-sentence AR as follows:
[17][2009] VCC 1670.

For the Middleborough Cellars robbery,[18] two years’ imprisonment (base sentence);
For the theft of OVX 414,[19] six months’ imprisonment, to be served cumulatively on each other sentence;

For dishonestly handling stolen goods,[20] six months’ imprisonment, to be served cumulatively on each other sentence.

[18]Count 2 on Presentment No C0705897.5.

[19]Count 1 on Presentment No C0705897.5.

[20]Presentment No C0705897.6

Accordingly, AR’s total effective sentence is three years and I would fix a non-parole period of two years’ imprisonment.

Had not AR pleaded guilty, I would have sentenced him for the Middleborough Cellars robbery to four years’ imprisonment, for the theft of OVX 414 to nine months’ imprisonment, to be served cumulatively on each other sentence and for dishonestly handling stolen goods, nine months’ imprisonment, to be served cumulatively on each other sentence.

WHELAN AJA:

I agree with the conclusions reached by Mandie JA in relation to the particular grounds of appeal, but I do not agree that a substantial miscarriage of justice has occurred and I would accordingly dismiss the applications for leave to appeal the convictions, save for Adam Rogers’ conviction on Count 2 on presentment number CO705897.4 (the Australia Post robbery).

For the reasons set out in detail by Mandie JA and summarised at paragraphs 32, 37, 38 and 47, I do not have a reasonable doubt as to the guilt of Phillip Rogers for the three robberies or of Adam Rogers for the Middleborough Cellars robbery and the Video Ezy robbery.

Whilst I agree that the evidence of flight by Phillip Rogers was incapable of leading to an inference of guilt in relation to any particular charged offence, my conclusion is that no substantial miscarriage of justice has actually occurred and that the applications (other than that of Adam Rogers in relation to the Australia Post robbery) accordingly ought to be dismissed pursuant to the proviso in s 568(1) of the Crimes Act 1958.[21] I reach this conclusion because of my conclusions as to

guilt, and because a review of the trial leads me to conclude that the error in the judge’s directions in relation to the flight evidence was not so fundamental or radical as to exclude application of the proviso[22] or result in a significant denial of procedural fairness.[23]

[21]Section 568 of the Crimes Act 1958 applies to this appeal, rather than s 276 of the Criminal Procedure Act 2009.

[22]Wilde v R (1988) 64 CLR 365, 372-3.

[23]Weiss v R (2005) 224 CLR 300, 317.

The possibility that Phillip Rogers’ conduct immediately prior to arrest might constitute consciousness of guilt came up for the first time in the trial after all of the evidence had been led, in the course of prosecution submissions in response to a no case submission. It was raised by counsel for the prosecution in a diffident and equivocal manner. The prosecutor suggested that the conduct ‘could go to a consciousness of guilt argument’, which he described as ‘another thread in the evidence’ against Phillip Rogers.

Counsel for Phillip Rogers complained about the use of the evidence in that manner in his reply submissions on the no case application and submitted that it was not open on the evidence and should not be allowed to be used in that way. But he then immediately moved off that point and submitted that it was hardly surprising that Phillip Rogers had run, as the police attempting to apprehend him did not identify themselves. He then outlined a number of aspects of the apprehension upon which the defence relied. I will return to those.

The trial judge ruled against the no case submission and then he raised the issue of consciousness of guilt. He made the following comment: ‘Of course it can’t be allocated to any particular count, can it?’. The prosecutor said that he appreciated that. He suggested that it was ‘arguable’ that it related to the last armed robbery, but then agreed that it could not be related to any particular count. He said that he was intending to put it to the jury as indicating only that they could infer he ‘had something to hide’. The prosecutor repeated that he could not connect the conduct with any particular count and observed that that was ‘obvious’. Counsel for the defence made no submission about the issue at that time.

In his final address, the prosecutor moved a little away from what he had put to the trial judge as being obvious. He did, as he had foreshadowed, put to the jury that Phillip Rogers’ flight was because he knew he had been ‘up to no good’. But it seems he could not resist also suggesting that it might be referable to the Video Ezy robbery, whilst at the same time expressly disavowing any argument that the conduct necessarily proved anything about the Middleborough Cellars robbery or the Australia Post robbery. He told the jury that the trial judge would give them a direction about this and then said, ‘… but the significant point is the clothing he is wearing. That’s the real nub of his arrest, and what he’s got on him – the $31 – worth of coins’.

In his final address, counsel for Adam Rogers did not address Phillip Rogers’ flight, but he did emphasise a point about the circumstances of the apprehension upon which both accused relied. That was that thousands of dollars had allegedly been stolen by these two men that day, but that that money was not found on them when they were arrested by police, and was not found later. Counsel for Adam Rogers asked rhetorically where the ‘stash of cash’ was.

In his final address, counsel for Phillip Rogers relied upon the circumstances of the arrest in three respects, and also suggested an explanation for his flight which was consistent with innocence.

First, counsel for Phillip Rogers relied upon the fact that the police had mistakenly believed that Phillip Rogers had been holding a knife at the time of his apprehension, when it transpired that what he had had in his hand was a bottle of Coke. He used this error to make a submission that it was very easy for mistakes to be made in descriptions, even for what he described as professional people.

The second point which counsel for Phillip Rogers relied upon in relation to the arrest was the fact that even though the arrest was very shortly after the Video Ezy robbery, there was no evidence of the police finding a knife, gloves, the balaclava, the bag which had been identified by witnesses, or the money itself.

The third point he made to the jury was that evidence had been given that the Australia Post robber had hurt himself and had hobbled away. Yet when Phillip Rogers was approached by police he engaged in a 300 metre foot race down Cambridge Road, pursued by what counsel for Phillip Rogers described as ‘a young and fit copper’.

As to the explanation, counsel for Phillip Rogers put to the jury that Phillip Rogers and Adam Rogers had observed a strange car and then three people running at them who had not identified themselves as police. This, it was said, explained why Phillip had run. Counsel described it as a ‘defence mechanism’.

In the charge, the trial judge addressed the consciousness of guilt issue in the context of standard directions which he gave about inferences and a circumstantial case. His directions on consciousness of guilt closely followed the charge book, and it seems to me that adopting that approach in the circumstances of this case is what has led him into error.

I agree with Mandie JA that the judge’s reference to an erroneous belief in guilt was unhelpful and potentially misleading, but in my view, the other possible explanations which he suggested were satisfactory, although they could have been better. The trial judge did set out Phillip Rogers’ counsel’s suggested explanation in detail.

The error made was in characterising the conduct as being capable of being an admission by conduct referrable to the particular counts, or any of them. Because the trial judge simply followed the charge book, the directions he gave were inconsistent with what he and counsel had earlier seen as obvious, namely that the conduct could not be characterised as consciousness of guilt of any particular count. The directions he gave were also inconsistent, in my view, with what the prosecutor had put to the jury.

In my opinion, what ought to have been done was that the evidence about apprehension should have been treated as simply part of the circumstantial case, and not as consciousness of guilt evidence at all, in the manner described by Weinberg JA in R v Dupas (No 3).[24] Different aspects of those circumstances were properly relied upon by counsel for the prosecution and by counsel for the defence. The prosecution relied upon the clothing Phillip Rogers was wearing at the time of apprehension and the coins. The defence relied upon the absence of items you would have expected the brothers to have if they were the robbers, especially the money, and the knife. Phillip Rogers’ counsel also relied upon the absence of apparent injury.
[24][2009] VSCA 202, [371]-[380].

The trial judge gave the directions about consciousness of guilt late in the day. Before adjourning, he invited counsel to raise any issues. No issue was raised. Nor was any issue raised the next morning.

The trial judge gave the jury a detailed summary of the evidence and he related the evidence to the particular counts. It subsequently emerged that he had overlooked one witness (which he corrected in a re-direction), but otherwise he gave the jury what seems to me to have been a fairly full summary. He summarised the circumstances of the apprehension, and, in the course of that summary, he reminded the jury of the submissions that had been made by the prosecution and by the defence concerning those circumstances, without referring to any consciousness of guilt argument. If anything, at that point he gave more attention to the aspects of the apprehension that were relied upon by counsel for the defence than those relied upon by the prosecution.

The trial judge’s summary of the final addresses was fairly brief. He had dealt with the submissions made in relation to the apprehension in the course of the evidence summary. He did not refer to any consciousness of guilt argument when summarising the final addresses, even though he did make a further brief reference to the submissions that had been made about the circumstances of the apprehension.

After completion of the charge, the prosecution raised a matter and Adam Rogers’ counsel raised a matter, and the trial judge gave re-directions as a result on those matters. Counsel for Phillip Rogers said he had nothing that he wished to raise. There were jury questions, but they did not raise the consciousness of guilt issue.

In the circumstances I have outlined, in my view, the error made by the judge cannot be characterised as so fundamental as to exclude application of the proviso. Counsel did not see it that way at the time. That is very important. It was ‘obvious’ the conduct could not be referrable to any particular count in the sense of constituting an implied admission of guilt on that count. When summarising the evidence and the submissions the Judge confined himself to the aspect of the flight which the jury could properly take into account.

The parties did not make submissions on the proviso. If it were not for the fact that I am in the minority on the issue, I consider that it would have been appropriate to invite further submissions on the specific application of the proviso to the consciousness of guilt grounds.

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Citations

Rogers and Rogers v The Queen [2011] VSCA 412

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Chamberlain v The Queen (No 1) [1983] HCA 13

R v Rogers [2008] VSCA 125

R v DAN [2007] QCA 66

[2011] VSCA 412

9 December 2011