Snider v The Queen
[2004] WASCA 204
•13 SEPTEMBER 2004
SNIDER -v- THE QUEEN [2004] WASCA 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 204 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:171/2003 | 6 AUGUST 2004 | |
| Coram: | MURRAY J STEYTLER J TEMPLEMAN J | 13/09/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THEODORE MAX SNIDER THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Appellant convicted of burglary in company, unlawful deprivation of liberty and armed robbery in company using personal violence Circumstantial case depending largely on taperecorded conversations between accused Whether trial Judge should not have admitted evidence of the finding of balaclava and gloves Whether verdicts unsafe because of insufficient evidence implicating appellant Whether trial Judge's explanation to jury of accessorial liability and common purpose was inadequate No error in admitting evidence of balaclava and gloves The circumstantial evidence, together with appellant's failure to offer explanation to jury, meant guilty verdict was open to the jury No error in trial Judge's charge to jury Turns on own facts |
Legislation: | Nil |
Case References: | Weissensteiner v The Queen (1993) 178 CLR 217 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 O (a child) v The Queen, unreported; SCt of WA; Library No 970219; 15 May 1997 R v Mappin (1904) 6 WALR 161 R v Norfolk County Council (1891) 60 LJQB 379 R v Pektas [1989] VR 239 R v Swaffield (1998) 192 CLR 159 Ward v The Queen (1997) 19 WAR 68 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SNIDER -v- THE QUEEN [2004] WASCA 204 CORAM : MURRAY J
- STEYTLER J
TEMPLEMAN J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
File Number : INS 95 of 2002
Catchwords:
Criminal law and procedure - Appeal against conviction - Appellant convicted of burglary in company, unlawful deprivation of liberty and armed robbery in company using personal violence - Circumstantial case depending largely on
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taperecorded conversations between accused - Whether trial Judge should not have admitted evidence of the finding of balaclava and gloves - Whether verdicts unsafe because of insufficient evidence implicating appellant - Whether trial Judge's explanation to jury of accessorial liability and common purpose was inadequate - No error in admitting evidence of balaclava and gloves - The circumstantial evidence, together with appellant's failure to offer explanation to jury, meant guilty verdict was open to the jury - No error in trial Judge's charge to jury - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D Dempster
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Weissensteiner v The Queen (1993) 178 CLR 217
Case(s) also cited:
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
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O (a child) v The Queen, unreported; SCt of WA; Library No 970219; 15 May 1997
R v Mappin (1904) 6 WALR 161
R v Norfolk County Council (1891) 60 LJQB 379
R v Pektas [1989] VR 239
R v Swaffield (1998) 192 CLR 159
Ward v The Queen (1997) 19 WAR 68
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1 MURRAY J: I have read in draft the judgment of Steytler J. There is nothing I wish to add to it. I agree that the appeal should be dismissed.
2 STEYTLER J: On 15 October 2003 the appellant was convicted, after a trial by jury, on one count of burglary in company with others, one of unlawful deprivation of liberty and one of armed robbery in company in the course of which personal violence was used. He appeals against all three convictions.
The three offences
3 The complainant, in each case, was Mr George Gerald Separovich. He is the owner of a store in Spearwood known as "George's Handy Foods" or "George's Deli". He had been so for 38 years at the date of the trial. At nights, he used to sleep at the deli. The deli was open seven days a week, from 6 am until midnight. At the end of each day Mr Separovich would put the day's takings into a safe in the corner of the kitchen in the deli. He banked the takings on Tuesdays and Fridays. He held a firearms licence for an air rifle and kept two air rifles at the deli.
4 On the night of 1 February 2001 Mr Separovich went out to dinner. He returned to the deli at about 1 am on 2 February 2001. He noticed that the lock on the back door had been broken. However, he thought nothing much of it, believing that this had been done by children. He made no report to the police. In fact, although Mr Separovich had not noticed this, the two air rifles had been stolen.
5 Shortly after midnight on 5 February 2001, Mr Separovich heard a knock on the deli door. He opened the door. Two people wearing balaclavas and gloves came into the deli, pushing him into the kitchen and up against the safe. The two men were carrying firearms. He was ordered to open the safe and told the two men where the combination to the lock might be found. The safe was opened and $30,000 in cash was taken. The two men then tied Mr Separovich up, putting "something sticky" around his head and making it difficult for him to breath. They left through the back door. Mr Separovich was able to free himself after about 15 or 20 minutes.
The prosecution case at trial
6 The prosecution contended that the burglary was committed by four men. They were the appellant, Shane Lindsay Lehman, Errol Munro and Simon Mark Jones. The other two offences were said to have been
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- committed by the same men, but with the involvement of a fifth man, Vance David Jones.
7 The prosecution case was circumstantial. It depended largely upon a number of tape-recorded conversations between the accused men. The police had been interested in Lehman. They consequently obtained a telephone intercept warrant and recorded telephone calls made to and from his mobile telephone. Some of these related to the offences charged. A listening device was also placed in the cells in which the five men were placed after they had been arrested. Tape-recordings of these conversations were played to the jury.
8 There was other evidence. Lehman's sister, Amanda Lehman, and her partner, Sebastian Crouch, testified that Lehman had offered to sell them an air rifle for $70. This took place in February 2001. While the rifle later disappeared, Crouch identified it as one of the stolen rifles from photographs of those rifles which were shown to him.
9 Two constables, Roderick Wickham and Paul Shepherd, also gave evidence at the trial. They had been on patrol in the early hours of the morning of 5 February 2001. They saw a Holden Commodore being driven in Hamilton Hill. They ordered the driver to stop his car. The driver turned out to be Lehman. Simon Jones was a passenger in the car. The two police officers looked in the boot of the car. There they found an array of bags, mostly full of clothing. Amongst the bags was a small sports bag. Inside it, the two police officers found a handgun, a portable radio scanner and a balaclava.
10 Two other police constables, Norman McFadden and a Constable Franklin, had been called to assist Constables Wickham and Shepherd. However, when they arrived it became apparent that no assistance was required from them. The two officers continued to patrol the streets in their car. At about 4.10 am (some 10 minutes after Constables Wickham and Shepherd had stopped Lehman's Commodore), they saw two men in Blackwood Avenue, Hamilton Hill. The two men were asked to identify themselves. One of them was the appellant. The other was a man known as Aaron Le Broek. Having obtained the names of the two men, and having asked them what they were doing out at that time of the morning, the two police officers continued on their patrol.
11 Yet another police officer, Detective Sergeant John Hindriksen, also gave evidence at the trial. On 15 February 2001, he and another constable were driving an unmarked police car in Riverside Gardens. They were in that area because they wanted to speak to the appellant. They saw the
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- vehicle which the appellant ordinarily drove and stopped it. The appellant was driving it. He was searched. He had a bundle of cash in his pocket, consisting of $100 and $50 notes. Sergeant Hindriksen later searched the appellant's car. On the rear passenger seat he found a black balaclava. A pair of orange and yellow gloves was also found in the front of the car.
The grounds of appeal
12 The appellant has raised six grounds of appeal. They read as follows:
"1. With respect to counts 1, 2 and 3 of the indictment the learned trial judge failed adequately or at all to explain to the jury how Sections 7 and 8 of the Criminal Code of Western Australia applied to the appellant's case;
2. With respect to counts 2 and 3 of the indictment the learned trial judge erred in admitting evidence of the presence of the balaclava and gloves in the appellant's motor vehicle;
3. With respect to counts 2 and 3 of the indictment, the learned trial judge erred in admitting evidence of the DNA on the balaclava found in the appellant's motor vehicle;
4. With respect to counts 2 and 3 of the indictment the learned trial judge in his charge to the jury failed to adequately distinguish between the cases of each accused with respect to the operation of Sections 7 and 8 of the Criminal Code of Western Australia;
5. With respect to counts 2 and 3 the evidence was insufficient to support a conclusion that if an offence had been committed, it was the same offence the appellant was convicted of;
6. With respect to counts 2 and 3 the evidence adduced at the trial was inconsistent and failed to support a verdict of guilty."
Grounds 2 and 3
13 It is convenient to deal first with grounds 2 and 3.
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14 Prior to the trial, the appellant's then counsel sought an order excluding, from the evidence to be presented at trial, the evidence of the finding of the balaclava (which had contained the appellant's DNA) in the back of the appellant's car. The application was made on the ground that this evidence had little probative value and some prejudicial value. The lack of probative value was said to exist because the balaclava had been found some 10 days after the armed robbery. However, the application failed. The Judge who heard it, Wheeler J, remarked that the balaclava was "an odd thing to be carrying about in the middle of summer". To this, the appellant's counsel responded with a number of explanations. First, he said that the appellant sometimes rode a motorcycle over long distances (albeit he did not own one) and that the balaclava prevented him from getting insects in his eyes. When it was pointed out to him that balaclavas do not cover the eyes (least of all, one might have thought, when the wearer is operating a motorcycle), he suggested (no more convincingly) that perhaps the balaclava (which the appellant described as an "open face" balaclava) kept insects out of the wearer's mouth. Then he said that the appellant had been moving house at the time and the balaclava had been left in the car in the course of the move. None of this persuaded her Honour. She said that the finding of the balaclava was evidence of probative value, given that it was found in the appellant's car at a time reasonably proximate to that of the commission of the armed robbery.
15 The appellant contended before us that her Honour erred in that ruling. He also contended that the gloves should not have been admitted into evidence. He repeated the submissions which had earlier been made by his lawyer to the effect that a balaclava had some utility in long motorbike rides (albeit he did not, on this occasion, say what utility it had) and that it had been left in his car in the course of a general move of his possessions. He added that the balaclava and gloves were dissimilar to those used in the robbery.
16 As to this last proposition, Mr Separovich had given a description of both of his assailants to the police. He told them that both had been wearing dark-coloured balaclavas, with holes for eyes and mouth, and dark-coloured gloves. The appellant's gloves were not dark coloured and his balaclava did not have separate holes for the eyes. However, Mr Separovich also told the police that he did not get much of a chance to look at the two men. In his evidence at the trial he said that he did not really know whether or not the balaclavas and gloves were dark or light coloured.
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17 In all of these circumstances, I am not persuaded that any error was made in admitting the evidence of the finding of the balaclava and gloves and of the finding of the appellant's DNA on the balaclava. That evidence was of some probative value, given that balaclavas and gloves had been used in the robbery, albeit there was doubt as to their general description. As to their prejudicial value, it was open to the appellant to explain to the jury his possession of those items. However, he chose not to give evidence.
Grounds 5 and 6
18 I propose, next, to deal with grounds 5 and 6.
19 Those grounds, as they were expanded upon in oral submissions, essentially contend that there was so little evidence implicating the appellant in the offences committed that the jury's verdicts should be found to be unsafe (while grounds 5 and 6 refer only to counts 2 and 3, the appellant, in the course of his submissions, appeared to direct his comments to all three counts).
20 Also, while this is not specifically referred to in his grounds, the appellant contended, under this general heading, that a tape-recorded conversation between Lehman and a police officer, described only as "operative number 40", should not have been admitted at the trial. That conversation, which took place on 8 December 2000, involved a very limited discussion with respect to firearms, in the course of which various code words were agreed upon for different kinds of firearms. It is enough, to dispose of that contention, to mention that this evidence was read to the jury by consent of the various accused men, including the appellant. Moreover, it was of no significance as regards the case against the appellant, there having been no suggestion that he used any of those code words at any time.
21 That brings me to the sufficiency of the evidence against the appellant. In considering that issue, it is necessary for me to set out what was said in some of the tape-recorded telephone conversations to which the appellant was a party.
22 There were three such telephone conversations on 31 January 2001. Each was between the appellant and Lehman.
23 In the first of them, at 6.45 pm, Lehman asked the appellant whether "it's definitely happening tonight". The appellant told him that he was
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- "pretty sure it is". He said that he would later confirm this after talking to another man.
24 In the next conversation, about an hour later, the appellant told Lehman that the other man was "busy again". He said that the man had said to him that "if we wanted to we could do it and … let Simon drive". The appellant also told Lehman that he had said to the other man "well, what about just leave it and … organise it probably for tomorrow". He said that the other man had responded by saying that he was not sure what was going on because he had been caught up in something. The appellant told Lehman that they should "leave it until tomorrow" and that the appellant would see "what we can organise".
25 The third conversation took place some seven minutes later. In the course of it, the appellant told Lehman that Lehman might "have to call the big fella" because the appellant would "rather go in with … him".
26 Then, at 3.07 am on 2 February 2001, not long after the burglary had been committed, the appellant telephoned Lehman. Lehman asked him what was happening and he answered, "Not much. Next time mate," and laughed. Lehman then said "as soon as we left they, they pulled up". He also said, "We should've just waited for em." The appellant responded by saying that he knew that but that hindsight was "twenty twenty" and that it was "too far to … go back now".
27 At 2.10 pm on the same day the appellant telephoned Munro. Munro told him that "Shane" had explained to him what had happened on the previous night. Munro then said "but Ted you gotta work the plan mate". He went on to say, "We planned it all out, but you got to work the plan mate, ya not go running around and get little petty shit, you know." The appellant responded by saying that that was just "Something to do because it was there". Munro then said that there were "two things running around" that were "traceable". The appellant replied that he would "throw it in the bloody ocean". Munro also said to the appellant that he "should have made em wait". The appellant responded by saying, "Well that's what I was sort of doing but uh people didn't listen to sort of directions as the way it was meant to happen and it uh, it come undone."
28 Later in the conversation Munro said to the appellant:
"Well that's over anyway mate, we can't fix it, it's done now, we've gotta go with the plan. Same plan, you've got to go exactly as the plan last night right. I'll go through it with you now okay."
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29 Munro went on to tell the appellant that he had to "do it" at the exact same time. Later in the conversation the appellant acknowledged that "it didn't happen how it was meant to" and that "it should have happened last night, but unfortunately people just can't take directions". When Munro urged him to "just remember, nothing that is traceable", he responded by saying, "Yeah, never again."
30 Some three hours later Lehman telephoned the appellant. He suggested that "we go and have a look and sit on it mate, make sure everything's kosher". The two men then discussed the possibility that it might be a "write off" because there could be people "floating around".
31 Shortly before 4 pm on 5 February 2001, the night of the robbery, the appellant telephoned Lehman and asked him to meet the appellant at "the gym" at 5 pm "with that thing". Lehman agreed to do so. The appellant telephoned Lehman again at about 9 pm that night. He asked Lehman to bring the "long one" to the gym at 11.20. He asked Lehman to "clean it". Lehman responded by saying that "it" was clean and that it had not been touched.
32 Then, shortly before 1 am on the following morning, the appellant telephoned Lehman. He told Lehman not to ring anybody or contact anybody. He asked him if he had gone out anywhere that night because someone had heard something "over the air" to the effect that a description of Lehman's car was given, "possibly in relation to something, to be on the lookout for it or something like that". Lehman said that he was at his home. The appellant then said, "Ohhh, well that's good, well doesn't matter then because it wasn't you, but, but they ahh might have a look at you aye?"
33 At 9.42 am on 6 February 2001, the appellant telephoned Lehman. He told Lehman that "everything's cool". Lehman asked him, "So, big or little one?" The appellant answered by saying, "Ahhh medium."
34 After the five accused men had been arrested and charged, two tape-recordings were made of conversations between them while in a prison cell. In the first of those conversations, on 15 February 2001, the appellant told the others that "they've only get [sic presumably 'got us'] together so they can … listen to us". In the second conversation the appellant told the others that he and "Errol" would "probably end up being … bum chums on remand for about 12 months over this shit but … the whole time until we're … free keep, it tight".
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35 In my opinion, this evidence was more than sufficient to justify the appellant's convictions.
36 While there are no express admissions, it seems plain enough that the earlier conversations related to the first attempt to rob the deli and that what had happened was that the offenders had been unable to open the safe in the absence of Mr Separovich, who had returned to the deli not long after they left. It also seems plain enough that the "traceable" items were the two air rifles. The later conversations appear quite plainly to have related to the armed robbery which occurred at about midnight on the night of 5 and 6 February 2001.
37 It might readily be inferred from the telephone conversations that the appellant played an active role on each occasion and that he was very probably one of the armed men who entered the deli on the night of 5 February 2001. Although the appellant appeared to take instructions from Munro, he had regarded himself as being the appropriate person to give instructions to others. Also, it is difficult to imagine that the "long one" was anything other than a firearm (even though, as the appellant pointed out, that expression was not one of the code words for firearms mentioned in the course of the telephone conversation between Lehman and "operative 40"). Still further, the telephone conversations with Lehman, made after the robbery had been committed, were entirely consistent with the proposition that the appellant had been one of the perpetrators of that robbery. In particular, the question "big or little one", asked of the appellant by Lehman, was seemingly directed to the amount of the proceeds of the robbery.
38 The appellant suggested that the conversation with respect to Lehman's car, which took place shortly after the time of the robbery, was indicative of the appellant's innocence. He said that it shows that he did not know whether or not Lehman had been involved in criminal conduct that night. However, it seems to me that all it shows is that the appellant, or someone connected with him, had been monitoring the police radio and was concerned that the police might have seen what they believed to have been Lehman's car being driven in suspicious circumstances and, hence, that they might go to his home in order to search it. There was nothing in that conversation, as I understand it, to suggest that the appellant did not know whether or not Lehman had been involved in the robbery. Rather, his exhortation to Lehman not to ring anybody (repeated later) sounds very much as though he did not want Lehman to ask, over the telephone, how the robbery had gone.
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39 When all of this evidence is taken together with the finding of the balaclava and gloves in the appellant's vehicle, the finding of $100 and $50 notes in his pocket (it seems, from the content of some of the tape-recorded telephone calls to which I have not previously referred, that the appellant had earlier been short of cash) and the appellant's failure to offer any explanation for his conduct (as to which, see Weissensteiner v The Queen (1993) 178 CLR 217), it was, in my opinion, undoubtedly open to the jury to convict the appellant on all three counts.
40 There is consequently no substance to grounds 5 and 6.
Grounds 1 and 4
41 That leaves grounds 1 and 4.
42 The appellant supported these grounds by submissions which essentially advanced three propositions, as follows:
(1) The evidence did not establish that the appellant knew that an armed robbery was to be committed, even if it be assumed that the evidence proved that he had been involved in the burglary.
(2) The evidence did not establish that the appellant had in fact been involved in the armed robbery.
(3) The trial Judge's explanation to the jury of the application of s 7 and s 8 of the Criminal Code was inadequate, essentially because he did not sufficiently identify what was the evidence against each of the accused men in respect of each offence and explain to the jury how s 7 and s 8 might be applied to that evidence.
43 Propositions 1 and 2 (which essentially repeat what was said in respect of grounds 5 and 6) are not sustainable. I have already said that there was more than enough evidence to leave it open to the jury to be satisfied both that the appellant knew that the armed robbery was to be committed and that he was involved in it.
44 Proposition 3 is also not sustainable.
45 In his charge to the jury, the trial Judge made it plain that the jury was required separately to consider the case against each of the accused men. He also read to the jury the full text of each of s 7 and s 8 of the Code (dealing respectively with accessorial liability and common
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- purpose). He went on, in each case, to explain, in terms which are unexceptional, how those provisions were to be applied.
46 Later in his charge, the trial Judge told the jury that it was the prosecution case that the appellant had been a principal offender in respect of count 1, because he was one of the two men who had burgled the deli and stolen the two air rifles. So far as counts 2 and 3 are concerned, the trial Judge told the jury that the prosecution case was that the appellant was guilty either as a principal offender, in that he entered the deli, or that he was one of those who had enabled or aided the commission of the offence by providing information and equipment. He referred to the conversations which the appellant had had with Lehman shortly before the armed robbery, in the course of which the appellant asked Lehman to meet him at the gym "with that thing" and, a little later, to bring "the long one" in a clean condition. He mentioned the appellant's apparent use of a scanner to monitor the police radio on the night of the robbery. Against this, he told the jury that counsel for the appellant had emphasised that the evidence against the appellant was inconclusive and that no clear picture emerged that he "knew what was going on".
47 The trial Judge was at pains, more than once during the course of his charge to the jury, to say what was the evidence against each of the accused men in respect of each offence and to explain what was each defence counsel's response thereto.
48 I am not persuaded that his Honour made any error.
49 It follows that I would dismiss the appeal.
50 TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Steytler J. I agree with those reasons, and his Honour's conclusion that the appeal should be dismissed.
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