Sipkes v The State of Western Australia

[2012] WASCA 205

SIPKES -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 205
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:147/2012	Heard:	24 SEPTEMBER 2012
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	16/10/12
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	BENJAMIN JOHN SIPKES THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Whether trial judge erred in removing from jury's consideration a reasonable hypothesis consistent with innocence Turns on own facts
Legislation:	Criminal Code (WA), s 294
Case References:	Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SIPKES -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 205 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 24 SEPTEMBER 2012 DELIVERED : 16 OCTOBER 2012 FILE NO/S : CACR 147 of 2012 BETWEEN : BENJAMIN JOHN SIPKES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HALL J

File No : INS 144 of 2011

Catchwords:

Criminal law - Appeal against conviction - Whether trial judge erred in removing from jury's consideration a reasonable hypothesis consistent with innocence - Turns on own facts

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Legislation:

Criminal Code (WA), s 294

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : No appearance

Solicitors:

Appellant : Holgate Legal
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217


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1 McLURE P: This is an application for leave to appeal against conviction. The appellant was found guilty after a five-day trial of unlawful wounding with intent to maim, disfigure, disable or do grievous bodily harm contrary to s 294(1) of the Criminal Code (WA) (the Code). The 'complainant', Nickolas Thomas Martin, had been shot in the arm.

2 The appellant was a member of the Rock Machine motorcycle gang. Martin was a member of the Rebels motorcycle gang. Martin refused to cooperate with police. Further, he was overseas at the time of the appellant's trial and did not give evidence. The appellant did not adduce evidence in his defence.

3 The only ground of appeal is that the trial judge erred in removing from the jury's consideration a reasonable hypothesis consistent with innocence.

4 The prosecution case was as follows. On 18 March 2011 Martin was shot in the arm in the driveway of his house at 52 Attra Street Balcatta. The event was caught on CCTV footage. The evidence relied on by the prosecution included the following:

- CCTV footage showing a person running onto the driveway of Martin's house and appearing to fire a gun;

- the shooter went to the scene of the crime in an old, beaten-up white Ford Falcon with three alloy wheels and one steel wheel (ts 260) which had been purchased by the appellant for $1,000 a week before the shooting;

- the appellant provided false information when buying the vehicle.
There was expert evidence that fingerprints on the vehicle purchase contract were those of the appellant and the vehicle was later seen outside the house of his girlfriend Alyssa Edgar, where the appellant frequently stayed;

- CCTV footage showed a white Ford Falcon of the same description as above driving up and down Martin's street on the day of the shooting;

- the white Ford Falcon was found alight at Point Walter on the night of the shooting. Its registration plates had been removed in a forceful manner;

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- prior to the shooting the appellant had said to Ms Edgar that Luke Power wanted Martin shot in the leg as a warning and that the order was to be carried out by the Rock Machine militia. The appellant told her that they had done a stake out and had recorded the times of Martin's movements;

- before the shooting, the appellant had shown Ms Edgar a backpack containing a balaclava, bullets, gloves and a sawn-off .22 calibre rifle with a wooden grip and stock similar to the firearm seen on the CCTV footage of the shooting;

- bullets found outside Martin's house had come from a .22 calibre rifle;

- after the shooting, the appellant was concerned about Ms Edgar's fingerprints appearing on the gun because she had touched it on an earlier occasion;

- the appellant appeared shaken the night the shooting took place and had asked Ms Edgar for bleach to wash his hands when he arrived at her house around 10.30 pm - 11.00 pm;

- some time after the shooting, the appellant told Ms Edgar that the gun had jammed and asked her to get rid of his clothes;

- a slip of paper with Martin's name and address on it was found in the appellant's wallet on 24 January 2011;

- documents seized by police on a raid of the Rock Machine club house prior to the shooting noted that the appellant was part of the Rock Machine 'militia';

- marks on the calves of the shooter seen in the CCTV footage appeared to be in the same location as tattoos on the appellant's calves; and

- there was gunshot residue on shorts and a shoe seized from Ms Edgar's house (the gunman was wearing shorts and a T-shirt similar to one found in the burnt-out white Falcon).

5 The direction under challenge related to Ms Edgar's evidence. The trial judge's summary of her evidence was as follows. Prior to the shooting the appellant had told her that there was a proposal that Martin, the President of the Rebels, be shot; it would be a warning shot to the leg; there had been a stake out to gather information about Martin's comings
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and goings; and that he (the appellant) was in the Rock Machine militia. Some time later, but before the shooting, the appellant showed Ms Edgar the contents of a backpack which included a gun, a balaclava, bullets and gloves. She gave a description of the gun. She also gave evidence that the appellant was not present with her on the evening of 18 March 2011 but arrived at her house by 11.46 pm. When he arrived, the appellant appeared shaken and asked for bleach to wash his hands. She asked him what happened and her evidence of his response was:

- well, he told me that [Martin] had been shot and there was - there was a chase by the Rebels and that the car had been burnt at Point Walter. He then said that he'd walked back from Point Walter to my house (ts 787).

6 The day after the shooting Ms Edgar took the appellant to hospital. In a conversation with the appellant the next evening she asked (after reading a newspaper story of the shooting) why Martin was shot in the elbow rather than the leg and the appellant said the 'gun had backfired and jammed'. She asked him where the gun was and he said it had gone back to where it came from. The appellant also asked her to 'take my shoes and things and get rid of them somewhere'. Ms Edgar said she did not get rid of the clothes because she was spending her time with the appellant at the hospital. She also gave evidence that clothes seized from her house were those of the appellant. Finally, Ms Edgar gave evidence that on 5 March she saw in the car being driven by the appellant, the gun she had previously seen in the backpack. After seeing an RBT ahead, Ms Edgar reached into the backpack, opened it and grabbed the gun, asking the appellant whether she should do something with it. He told her to leave it. The car was waved on by police. After the appellant was taken into custody, Ms Edgar had a telephone conversation with him which was to the effect that she might be concerned that her DNA might be on the gun if it was ever found.

7 Ms Edgar's evidence was largely unchallenged in cross-examination. Further, the appellant's counsel did not pursue questions about her knowledge of the truth of the statements, express and implied, made by the appellant.

8 In his closing address, counsel for the appellant suggested that the appellant had intentionally misled Ms Edgar in order to lay a false trail. He said:

Lets consider the relationship with [the appellant] and Ms Edgar. They'd been together for one month. How well did they know each other? What was the reasoning behind the relationship? We say it's that Ms Edgar was

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told certain information. Ms Edgar told that information on to police and it gave police an instant trail and a picture.

And we're aware that police can get on the wrong scent. Sometimes a scent can be intentionally laid to put someone off the trail. They'd been together for one month, and as my learned friend said, look at the significance of what was told to her over the period of time in the lead-up.

The balaclava, the bullets, the gun in the car; may have been done for a reason. She couldn't tell us if it was real bullets. The balaclava was a different description to what the person is wearing. The seeds to the story are being sewn (ts 743).

9 There was nothing in the conduct of the defence case that even hinted at the suggestion made in closing that the appellant had deliberately laid a false trail. After counsel for the appellant had completed his closing address, the State submitted that the jury should be given a Weissensteiner direction (Weissensteiner v The Queen (1993) 178 CLR 217) in relation to the false trail suggestion. After initially acquiescing, defence counsel opposed that course. The trial judge, Hall J, declined to give a Weissensteiner direction but directed the jury that there was no evidence to support the suggestion.

The trial judge's direction

10 The trial judge gave unimpeachable directions on the onus and burden of proof. He also directed on an accused's right to silence (ts 769). The jury were directed, inter alia, that they were not permitted to draw any adverse inference against the accused because he had exercised his right to silence. He continued:

If a person was entitled to say nothing but it was used against them, it would be a right of no value. So an accused person is entitled to say nothing, to sit back and to require the prosecution to prove their guilt beyond reasonable doubt (ts 769).

11 In the course of directing on the subject of inferences, the trial judge said:

Well, when it comes to determining inferences, what you must do, I would suggest, is determine what facts you can find proven on the evidence. And having found those facts, you would then decide what inferences can be drawn from those facts. Now, inferences do not involve any guessing or speculating. They are logical conclusions that lead from the evidence.

Now, I should say something to you now about something that was said by Mr Ayoub in his closing submissions. He suggested to you that the evidence, in particular, evidence of what the accused said to Ms Edgar,

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could be a false trail, I think were the words used; that he could have been telling her a pack of lies and that they may not be the truth.

Now, any hypothesis on the evidence must be supported by evidence in the case. In this case, I must tell you that there is no evidence that would support that hypothesis, and so in that regard, that would not be a reasonable inference available on the evidence (ts 771 - 772).

12 Counsel for the appellant did not object to that direction at trial.

Analysis

13 Weissensteiner is one of the very rare cases in which it was permissible to direct the jury that they may take into account an accused's failure to give evidence for the purpose of evaluating the probative value of the evidence which had been given.

14 The first contention put on behalf of the appellant was that the trial judge's direction 'effectively amounted to a direction that the jury may more readily accept the prosecution's case as the accused was in a position to contradict that had he elected to give evidence' [28]. There is no merit in this contention. The trial judge did not expressly or impliedly direct the jury in those terms. Moreover, to withdraw a hypothesis which involves groundless speculation does not have the effect for which the appellant contends. It would have no effect, positive or negative, on the probative value of the evidence which had been adduced by the State.

15 The real issue is whether the false trail hypothesis invited groundless speculation. A reasonable doubt must rest on something more than mere conjecture: Barca v The Queen (1975) 133 CLR 82, 105.

16 Counsel for the appellant (who was not trial counsel) submitted that the deliberate false trail hypothesis applied to all of Ms Edgar's evidence summarised above. Having regard to the evidence at trial as a whole, the hypothesis is correctly characterised as mere speculation or conjecture. It had no reasonable foundation in the evidence and nor was it consistent with the defence case as it emerged at trial. The deliberate false trail hypothesis has the appellant falsely implicating himself as the shooter to divert attention from the actual perpetrator. The defence case at trial was that none of the statements made by the appellant to Ms Edgar involved an admission that the appellant was the person who shot Martin. It was not in dispute that the appellant was a Rock Machine member who, as a member of its militia, could be expected to have some knowledge of what other members of the militia had done or were proposing to do and perhaps even some limited involvement in the exercise, short of firing the

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shot that injured Martin. The defence case was fully and fairly put to the jury by the trial judge (ts 794 - 797).

17 The appellant has no reasonable prospect of establishing that the deliberate false trail explanation is a reasonable hypothesis on the evidence. I would refuse leave to appeal and dismiss the appeal.

18 BUSS JA: I agree with McLure P.

19 MAZZA JA: I agree with McLure P.