The State of Western Australia v Balestra
[2018] WASCA 209
•23 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BALESTRA [2018] WASCA 209
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 23 JULY 2018
DELIVERED : 27 JULY 2018
PUBLISHED : 23 NOVEMBER 2018
FILE NO/S: CACR 44 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JARRAD BALESTRA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 226 of 2017
Catchwords:
Criminal law - State appeal - Trial by judge with a jury - Appellant and co‑accused charged with counts 6 to 12 on an indictment - Trial judge entered a judgment of acquittal on, relevantly, count 12 on the respondent's submission of no case to answer - Whether the trial judge erred in deciding that the respondent had no case to answer on count 12
Legislation:
Criminal Appeals Act 2004 (WA), s 24(2)(e)(i)
Result:
Appeal allowed
Judgment of acquittal entered by the trial judge on count 12 in indictment INS 226 of 2017 set aside
There be a new trial of the respondent on count 12
Category: B
Representation:
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr C J Henderson |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Marilyn Loveday |
Case(s) referred to in decision(s):
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
REASONS OF THE COURT:
This is a State appeal, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA), against a judgment of acquittal entered after a decision by Corboy J, in the course of the respondent's trial, that the respondent had no case to answer on count 12 in indictment INS 226 of 2017.
On 27 July 2018, this court ordered that the appeal be allowed, the judgment of acquittal entered on count 12 be set aside and that there be a new trial of the respondent on count 12.
These are our reasons for making those orders.
The facts and circumstances culminating in the entry of the judgment of acquittal
In February 2018, the respondent was tried jointly with Darryl Raymond Sidney Kitto and Kevin Wayne O'Brien in the Supreme Court before Corboy J and a jury.
The indictment, INS 226 of 2017, contained 16 counts which alleged various serious offences relating to three separate ram-raids carried out at a Gwelup Service Station (counts 1 to 5, which related only to Mr Kitto), the Greenwood Village Shopping Centre (counts 6 to 12, which related to all of the accused) and the Edgewater Shopping Centre (counts 13 to 16, which related only to Mr Kitto and Mr O'Brien). Counts 1 to 5 are referred to as the 'Gwelup offences', counts 6 to 12 as the 'Greenwood offences' and counts 13 to 16 as the 'Edgewater offences'.
The object of each ram-raid was to take possession of an automatic teller machine (ATM) at the commercial premises and to steal a substantial amount of cash from the ATM. Each ram-raid was successful in that the offenders took possession of the ATM and stole the substantial amount of cash it contained. The State alleged that $101,890 was stolen from Gwelup; $275,100 from Greenwood; and $95,750 from Edgewater. The total of the amounts stolen was $472,740.
The central issue at the trial was whether the State could prove the identity of the offenders.
The State's case on counts 1 to 12 (in particular, proof of the identity of the offenders) relied upon evidence anticipated to be given by the State's witness, Andrew Clarke. Mr Clarke was a co-offender in the Gwelup and Greenwood offences. Mr Clarke's anticipated evidence was more significant from the State's viewpoint in relation to proof of the Gwelup offences and the identity of those offenders. His evidence was, nevertheless, of importance in relation to the Greenwood offences and the identity of those offenders. The State did not allege that Mr Clarke had been involved in the Edgewater offences.
Prior to the commencement of the trial, Mr Clarke had pleaded guilty before the trial judge to the Gwelup and the Greenwood offences and had been sentenced. Mr Clarke had undertaken to give evidence as a State witness at the trial and had received a substantial discount on his sentence in recognition of that undertaking.
At the trial, Mr Clarke repudiated his undertaking and did not give the anticipated evidence.
As a result, the State conceded that Mr Kitto did not have a case to answer on counts 1 to 5 (being the Gwelup offences) and, accordingly, his Honour entered judgments of acquittal on those counts.
After Mr Clarke repudiated his undertaking, the State's case on counts 6 to 12 (being the Greenwood offences) was in essence circumstantial. The trial judge decided that each of the accused had a case to answer on counts 7 to 11, but had no case to answer on counts 6 and 12.
His Honour also decided that Mr Kitto and Mr O'Brien did not have a case to answer on counts 13 to 16 (being the Edgewater offences).
After making the no case to answer rulings, the trial judge entered the judgments of acquittal, aborted the trial and ordered a new trial of all of the accused on counts 7 to 11.
Although the State challenged his Honour's judgment of acquittal on count 12 in relation to the respondent, the State did not challenge the judgment of acquittal on count 6 in relation to him. Also, the State did not challenge his Honour's judgments of acquittal on counts 6 and 12 in relation to Mr Kitto and Mr O'Brien.
The State instituted a separate appeal against his Honour's judgments of acquittal on counts 13 to 16 in relation to Mr Kitto and Mr O'Brien, but subsequently discontinued that appeal.
At the new trial, the State will not call Mr Clarke as a witness.
Counts 6 to 12 as pleaded in the indictment
Counts 6 to 12, as pleaded in the indictment, read:
(6)On or about 11 August 2016 at Wangara Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] attempted to steal a motor vehicle, namely, a Nissan Navara registration number 1 EKD 871, the property of Rohanna Pty Ltd trading as We Want Your Wheels Wangara.
(7)On the same date and at the same place as in Count (6) Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] stole a motor vehicle, namely, a Nissan Navara registration number 1 EKD 874, the property of Rohanna Pty Ltd trading as We Want Your Wheels Wangara.
(8)On 11 August 2016 at Joondalup Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] stole a trailer, the property of Kennards Hire Pty Ltd trading as Kennards Hire Joondalup.
(9)On or about 11 August 2016 at Greenwood Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent], while in the place of Greenwood Shopping Centre without its consent, stole an automated teller machine.
And that Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] were in company with each other and another.
(10)On the same date and at the same place as in Count (9) Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] stole $275,100 in money, the property of Australia and New Zealand Banking Group Ltd trading as ANZ.
(11)On the same date and at the same place as in Count (9) Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] wilfully and unlawfully destroyed a motor vehicle.
And that motor vehicle was destroyed by fire.
(12)On 12 August 2016 at Neerabup Darryl Raymond Sidney Kitto, Kevin Wayne O'Brien and [the respondent] wilfully and unlawfully destroyed a trailer.
And that trailer was destroyed by fire.
The State's case generally and the trial judge's reasons generally in relation to the Nissan Navara vehicle and the trailer used in connection with the Greenwood ram-raid
The State's case was that the accused had stolen a Nissan Navara vehicle from a car yard. They had also stolen a trailer. The Nissan Navara was used in the Greenwood ram-raid and the trailer was used to carry away the ATM. The Nissan Navara and the trailer were set on fire, at different locations, after the ram-raid.
The trial judge accepted that a jury could find that the Nissan Navara vehicle referred to in count 7 had been stolen; that the trailer referred to in count 8 had been stolen; that the Greenwood ram-raid and the theft of the ATM and the money it contained had occurred as alleged in counts 9 and 10; and that the Nissan Navara referred to in count 7 had been destroyed by fire as alleged in count 11.
The State had intended to rely substantially upon Mr Clarke's anticipated evidence to identify the role played by each accused in the commission of the Greenwood offences. Absent his evidence, the State relied upon a number of items of circumstantial evidence to prove its case.
His Honour held that all of the accused had a case to answer on counts 7 to 11 because of the circumstantial evidence relied upon by the State combined with reasonable inferences which could be drawn from that evidence.
However, the trial judge held that none of the accused had a case to answer on counts 6 and 12.
The State's case in relation to count 7
Count 7 alleged that on or about 11 August 2016, at Wangara, the accused stole the Nissan Navara vehicle.
The trial judge held that there was no direct evidence to establish that any of the accused had been in the car yard from which the vehicle was stolen or that any of them had stolen the vehicle from the car yard. His Honour observed that there was no direct evidence that the Nissan Navara vehicle which was captured on CCTV footage at the Greenwood Shopping Centre and was involved in the Greenwood ram‑raid or that the Nissan Navara vehicle which was subsequently burnt was the same Nissan Navara vehicle that had been stolen from the car yard (ts 1611 - 1612).
His Honour held, however, that it could reasonably be inferred that the persons who were involved in the Greenwood ram-raid would have been aware, at that time, that the Nissan Navara vehicle used in the ram-raid had been stolen and, also, that those persons had knowingly used the vehicle unlawfully, contrary to s 371A of the Code, or, alternatively, that they had fraudulently converted the vehicle to their own use, without the consent of the owner, contrary to s 371 of the Code.
The process of reasoning which underpinned those inferences included:
(a)the manner in which the Nissan Navara vehicle had been used in the Greenwood ram-raid involved the risk of damaging the vehicle;
(b)the vehicle depicted in the CCTV footage at the Greenwood Shopping Centre appeared to be relatively new and in good condition;
(c)the purpose for which the vehicle that had been involved in the ram-raid was used, namely to ram and dislodge the ATM;
(d)the persons who were involved in the ram-raid would wish to use a vehicle that could not be traced to them;
(e)the vehicle that was burnt had been used in the ram-raid; and
(f)it was most unlikely that one of the offenders would have agreed to a vehicle owned by him being destroyed by fire following the ram-raid (ts 1612).
The trial judge decided that, subject to their findings in relation to counts 9 and 10, the jury could infer that count 7 had been proven beyond reasonable doubt against each accused (ts 1614 - 1615).
His Honour was therefore satisfied that each of the accused had a case to answer on count 7, which alleged that they stole the Nissan Navara vehicle.
The State's case in relation to count 8
Count 8 alleged that on 11 August 2016, at Joondalup, the accused stole a trailer from Kennards Hire.
The trial judge held that there was no direct evidence that any of the accused had been involved in stealing the trailer which had been used to carry away the ATM after the Greenwood ram-raid.
His Honour held, however, that it could reasonably be inferred that:
(a)the trailer was stolen by an unknown person or persons;
(b)at some time the trailer was driven to the Greenwood Shopping Centre;
(c)the purpose of driving the trailer to the Greenwood Shopping Centre was to place the ATM into the trailer and take it away;
(d)the trailer was actually used for that purpose;
(e)the trailer was not returned to the person who had hired it or to the firm from which it had been hired; and
(f)on the evening of 12 August 2016, after the Greenwood ram‑raid, the trailer was found burnt in a bush reserve near Flynn Drive, Neerabup (ts 1612 - 1615).
Late on the night of 11 August 2016 or early in the morning of 12 August 2016, a Landcruiser, which resembled Landcruiser, registration number 8EW-001, had been recorded on CCTV footage taken from the Greenwood Hotel. The Landcruiser depicted in the CCTV footage had been towing a trailer in the vicinity of the Greenwood Shopping Centre.
At the trial, a State witness, Rennie Conlan, gave evidence that a trailer he had hired from Kennards Hire was stolen from his home in Joondalup on the late evening of 11 August 2016 or in the early hours of 12 August 2016 (ts 473). A State witness, Ryan McCormack of Kennards Hire, gave evidence that Mr Conlan had hired a trailer, registration number 1 TNF 665, from Kennards Hire on 11 August 2016 and that the trailer was found burnt in Neerabup (ts 1207 - 1209).
At the trial, a State witness, Senior Constable Corey Dibello, gave evidence that at the Neerabup location where the burnt trailer was found he 'took photographs of the trailer, the track leading down to the trailer [and] what appeared to be a burnt out ATM machine' (ts 540). He also said that 'the remnants of the ATM' were 'to the right of the trailer' (ts 543).
The trial judge held that it could reasonably be inferred that the persons who were involved in the Greenwood ram‑raid would have been aware, at that time, that the trailer used in connection with the ram-raid had been stolen and, also, that those persons had knowingly used the trailer unlawfully, contrary to s 371A of the Code, or, alternatively, that they had fraudulently converted the trailer to their own use, without the consent of the owner, contrary to s 371 of the Code.
His Honour decided that, subject to their findings in relation to counts 9 and 10, the jury could infer that count 8 had been proven beyond reasonable doubt against each accused (ts 1614 - 1615).
The trial judge was therefore satisfied that each of the accused had a case to answer on count 8, which alleged that they stole the trailer.
The State's case in relation to counts 9 and 10
Count 9 alleged that on or about 11 August 2016, at Greenwood, the accused, while in the place of the Greenwood Shopping Centre without its consent, stole an ATM.
Ground 10 alleged that on the same date and at the same place as in count 9, the accused stole $275,100 in money, the property of Australia and New Zealand Banking Group Ltd (the ANZ Bank).
The trial judge held that the jury could be satisfied that:
(a)Early in the morning of 11 August 2016, each of the accused went to the Greenwood Shopping Centre. Mr Kitto admitted, when interviewed by the police, that he was at the Greenwood Shopping Centre at that time. The jury could be satisfied from CCTV footage that Mr O'Brien and the respondent were also at the Greenwood Shopping Centre at that time.
(b)Early in the morning of 11 August 2016, a Landcruiser vehicle, registration number 8EW-001, was observed in the carpark at the Greenwood Shopping Centre. That vehicle was registered in the name of a business owned by the respondent's father. The Landcruiser vehicle was also observed in the driveway of Mr Kitto's home on the morning of 12 August 2016 and to have been driven from that location by the respondent at about 9.15 am on that date. Accordingly, there was evidence that established a relationship between both Mr Kitto and the respondent, on the one hand, and the Landcruiser vehicle, on the other, at a time proximate to the commission of the Greenwood offences.
(c)The Landcruiser vehicle was present in the driveway of the respondent's home on 16 November 2016, being the date on which the respondent was arrested by the police for the Greenwood offences.
(d)At about 7.30 am on 11 August 2016, CCTV footage showed four people in the vicinity of the ANZ Bank's ATM at the Greenwood Shopping Centre. It was the State's case that it was open to the jury to infer that those people were Mr Kitto, Mr O'Brien, the respondent and Mr Clarke and that they were 'scoping out' the ATM.
(e)One of the people seen on the CCTV footage at about 7.30 am on 11 August 2016 had a neck tattoo and was wearing a chain. The State's case was that the jury could identify Mr O'Brien as that person.
(f)The CCTV footage at the time of the commission of counts 9 and 10 (that is, late on the night of 11 August 2016 or early in the morning of 12 August 2016) showed that one of the offenders had a tattoo which covered part of his neck and that he was wearing a chain. It was the State's case that this offender was the person with a tattoo and a chain who was depicted in the CCTV footage at about 7.30 am on 11 August 2016. There was other evidence that Mr O'Brien had a similar distinctive tattoo and wore a similar chain to the person depicted in the CCTV footage. The State's case was that Mr O'Brien was that offender.
(g)One of the people seen on the CCTV footage at about 7.30 am on 11 August 2016 wore a 'hoodie' with the motif 'Unit' and a symbol on the left-hand side. It was the State's case that the jury could identify the respondent as that person. There was other evidence that one of the offenders involved in the commission of counts 9 and 10 wore a similar piece of clothing. The State's case was that the respondent was that offender.
(h)There was evidence that each of the accused had not been in a good financial position before the Greenwood ram-raid, but had made various cash purchases or deposits shortly after the ram‑raid occurred. In particular, Mr O'Brien purchased a black Club sports car for $27,000; on 23 August 2016, Mr O'Brien's wife paid $13,000 cash into her bank account; at that time Mr and Mrs O'Brien's home loan was in arrears; on 15 August 2016, Mr Kitto purchased a Landcruiser vehicle for $47,000 cash; a Holden Commodore vehicle was purchased in the name of the respondent's father for $15,000; and the State's case was that the Holden Commodore vehicle was in fact purchased for the respondent (ts 1615 - 1618, 1630).
The trial judge decided that the jury could infer that counts 9 and 10 had been proven beyond reasonable doubt against each accused.
His Honour was therefore satisfied that each of the accused had a case to answer on counts 9 and 10, which alleged that they committed the aggravated burglary and stole the ATM and the $275,100 cash.
The State's case in relation to count 11
Count 11 alleged that on or about 11 August 2016, at Greenwood, the accused wilfully and unlawfully destroyed the Nissan Navara vehicle by fire.
The trial judge held that the jury could be satisfied that the Nissan Navara vehicle the subject of count 7 was used in committing the Greenwood ram-raid and that the vehicle the subject of count 7 had been burnt a few streets away from the Greenwood Shopping Centre after the commission of the ram-raid. His Honour also held that it could be inferred, from the time when the ram-raid was committed and from the time when the vehicle was set alight, that the obvious motive for burning the vehicle was that it had been used in the ram-raid.
His Honour decided that the jury could infer that count 11 had been proven beyond reasonable doubt against each accused.
The trial judge was therefore satisfied that each of the accused had a case to answer on count 11.
The trial judge's decision in relation to count 12
Count 12 alleged that on 12 August 2016, at Neerabup, the accused wilfully and unlawfully destroyed the trailer by fire.
As we have mentioned, at the trial, Senior Constable Dibello gave evidence that at the Neerabup location where the burnt trailer was found he 'took photographs of the trailer, the track leading down to the trailer [and] what appeared to be a burnt out ATM machine' (ts 540). He also said that 'the remnants of the ATM' were 'to the right of the trailer' (ts 543).
At the trial, Senior Constable Robert Vogels gave evidence as a State witness. He has been a police officer for about 24 years and has worked in 'various forensic areas for approximately 10 years' (ts 762). He gave evidence that he had carried out a comparison between a tyre impression taken near the trailer (at the bush location in Neerabup where it had been abandoned and burnt) and known tyres from the Landcruiser vehicle, registration number 8EW-001.
As we have mentioned, late on the night of 11 August 2016 or early in the morning of 12 August 2016, a Landcruiser, which resembled Landcruiser, registration number 8EW-001, had been recorded on CCTV footage taken from the Greenwood Hotel. The Landcruiser depicted in the CCTV footage had been towing a trailer in the vicinity of the Greenwood Shopping Centre.
Senior Constable Vogels said in evidence that the tyre brand on the Landcruiser, registration number 8EW-001, was a Cooper brand Discoverer AT3. He gave the opinion, without objection, that the 'questioned' tyre impression taken from the bush location 'could have been made by the Cooper brand Discoverer AT3 or it could have been made by another tyre that also shared the same class characteristics as the Cooper brand Discoverer AT3' (ts 768 - 769).
At the trial, Sergeant Graham Byard gave evidence as a State witness. He is an accredited fingerprint expert and has been attached to the forensic fingerprint bureau for about 16 years. Sergeant Byard has a post-graduate degree in forensic science from the University of Western Australia and a degree in fingerprint science from Curtin University. Sergeant Byard received a number of palm prints and fingerprints that were recovered from the trailer that was found burnt at the bush location in Neerabup. He matched two of those fingerprints to the respondent and three of them to Mr Clarke (ts 1288 - 1290).
The trial judge held that Mr Kitto, Mr O'Brien and the respondent had no case to answer on count 12.
His Honour gave reasons as follows:
Count 12 concerns the destruction of the trailer. The trailer was found on the evening of 12 August 2016 at Flynn Drive, Neerabup. No direct evidence as to how the trailer got there, who took it there, who set fire to the trailer.
There is tyre impression evidence. That evidence the expert concluded showed that the trailer may have been towed by a vehicle with tyres that had similar characteristics to a tyre impression taken from the Toyota LandCruiser 8EW-001.
However, he also said that the tyre impression found or taken at Flynn Drive, Neerabup, could have been made by another vehicle. He could not exclude that possibility and in my view, his evidence was at best equivocal.
The State … submitted that it could be found that those who committed the burglary must also have committed the destruction of the trailer at Neerabup because they must have planned to have done that.
…
[There] is no direct evidence of a plan. All that can be said is that the trailer was found burnt. There's an obvious inference as to why it might have been burnt …
…
But there is no evidence as to who did what. Whether each of the accused were present when the trailer - if any one of them, set fire to the trailer when the trailer was set fire to. No way of making, in my view, any finding or for the jury to make any find under section 7 [of the Code].
Now, the State … rely on the fact that a fingerprint was found on the back of the trailer that matched fingerprints taken and palm prints taken from [the respondent] and also Mr Clarke.
The difficulty with that evidence is this; it may establish of course that Mr Clarke and [the respondent] touched the trailer at some time. Weissensteiner, the reasoning in Weissensteiner, would suggest that if, for example, [the respondent] wished to indicate that he'd touched the trailer at some earlier time by going to a Kennards Hire centre and hiring the trailer that he would need to adduce that evidence because only he would have that knowledge. So put aside whether or not he may have touched the vehicle sometime prior to 11 August.
The difficulty with the fingerprint evidence is to which offence does it relate? Does it relate to a touching of the vehicle when the trailer was taken? Does it relate to a touching of vehicle - of the trailer, rather, at the time that the burglary was committed? Does it relate to a touching of the vehicle at the time that the trailer was torched?
There is no evidence on that so the fingerprint alone or with the tyre impression is not sufficient, in my view, to establish that [the respondent] or any of the accused were present when the trailer was set fire to. It is possible that the trailer was abandoned on the evening of 11 August and somebody else finding the abandoned trailer came along and set fire to it.
It's simply not known but most particularly, in my view, there is no evidence from which a jury could be properly directed about the application of section 7 and could make and reach any conclusion of guilt by reference to what the State would be required to prove under section 7 even allowing for the possibility that there was some general plan to dispose of those things that had been used in the burglary.
The inference that there might have been a plan to do that is insufficient to lead to any finding. It's insufficient to enable a jury properly directed to reasonably infer the guilt of each of the accused on count 12 (ts 1618 - 1620).
In summary, the trial judge reasoned:
(a)There was no direct evidence as to how the trailer was transported to the bush location where it was burnt, who took the trailer to that location or who set it on fire.
(b)The State adduced evidence of a tyre impression made at the scene of the fire. The evidence suggested that the trailer may have been towed to that location by a vehicle with tyres having similar characteristics to a tyre impression taken from the Landcruiser vehicle, registration number 8EW-001, which was associated with the respondent. However, the State's evidence did not exclude the possibility that the tyre impression may have been made by another vehicle. In particular, the expert witness who gave evidence about the tyre impression, Senior Constable Vogels, could not exclude that possibility, and his evidence was, at best, equivocal.
(c)His Honour rejected the State's submission that the jury could find that the people who committed the Greenwood ram‑raid must also have destroyed the trailer because the people who committed the ram-raid must have planned to destroy the trailer. His Honour observed that there was no direct evidence of a plan. All that could be said was that the trailer was found burnt. There was an obvious inference as to why it was burnt, but no evidence as to who had burnt it.
(d)Although the evidence adduced by the State included the existence of the respondent's and Mr Clarke's fingerprints on the trailer, that evidence was not sufficient, in his Honour's view, either alone or in combination with other evidence, to establish a case to answer. His Honour said it was not possible to identify to which offence the fingerprints related. That is, the respondent and Mr Clarke may have touched the trailer when the trailer was stolen, when the Greenwood ram-raid was committed or when the trailer was set on fire. His Honour also suggested the possibility that the trailer may have been abandoned by the people who committed the ram-raid and then set on fire by an unrelated third party.
The grounds of appeal
The State relies upon three grounds of appeal.
Ground 1 alleges that the trial judge erred in law in deciding that the respondent had no case to answer on count 12 in that his Honour:
(a)failed to take the evidence at its highest in favour of the State in considering whether the evidence was capable of establishing the alleged offence;
(b)failed to draw all reasonable inferences open on the facts in favour of the State; and
(c)erroneously considered the circumstantial evidence from which inferences were to be drawn in a piecemeal manner.
Ground 2 alleges that his Honour erred in law in deciding that there was no case to answer on count 12 in that the only conclusion reasonably open, on a proper application of the correct legal test, was that the evidence established a case to answer in respect of that count.
Ground 3 alleges that his Honour erred in law in entering a judgment of acquittal in respect of count 12 in that the judgment of acquittal was entered on the basis of his Honour's erroneous decisions referred to in grounds 1 and 2.
On 10 May 2018, Mazza JA ordered that leave to appeal be granted on each of the grounds of appeal.
Counsel for the respondent's submissions
Counsel for the respondent asserted that the absence of Mr Clarke as a State witness at the new trial would weaken the State's case in relation to count 12; in particular, the significance of the presence of Mr Clarke's fingerprints on the trailer.
It was submitted that the tyre impression evidence and the fingerprint evidence, together with all of the other evidence relevant to the State's case against the respondent on counts 7 to 11, taken at its highest, was not capable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt as to the respondent's guilt on count 12.
Counsel argued that the tyre impression evidence added nothing to the State's case on count 12. In particular, counsel referred to the following:
(a)Senior Constable Vogels admitted in cross-examination that he was not an expert in tyre impression comparison; he did not hold himself out as an expert in that field; and he had never provided evidence of this kind previously (ts 780).
(b)Senior Constable Vogels could only say that a tyre impression located at the scene of the burnt trailer could have come from a tyre with the same class characteristics as the tyres fitted to the Landcruiser vehicle, registration number 8EW-001, and he accepted that the tyre impression could have come from a tyre other than the tyres fitted to that vehicle (ts 790).
(c)A number of tyre tracks were visible in the photographs taken at the scene of the burnt trailer. However, photographs were not taken of those tyre tracks for the purpose of analysis (ts 570).
(d)In the circumstances, there was no proper basis for concluding that the impressions which were compared to the tyres fitted to the Landcruiser vehicle were associated with the burnt trailer.
Counsel referred to the evidence of the State's expert, Sergeant Byard, who gave evidence to the effect that if a person had touched the trailer immediately before it was set alight then it was possible that their fingerprints could have evaporated with the heat (ts 1299). Counsel argued that an inference based on that evidence, namely that the respondent did not touch the trailer immediately before it was set alight, could not be discounted.
Sergeant Byard also gave evidence to the effect that it was not possible to 'age fingerprints' and it was possible that the respondent's fingerprints had been on the trailer 'for years'. In particular, Sergeant Byard gave evidence to the effect that:
(a)it was possible, but unlikely, that the respondent's fingerprints had been on the trailer 'for years' (ts 1299);
(b)he was unable to say when the respondent's fingerprints were deposited on the trailer (ts 1299); and
(c)latent fingerprints are usually comprised of liquid or liquid and dirt (ts 1297), and if the respondent's fingerprints were mainly liquid then, if they had been deposited immediately before the trailer was set alight, they would have evaporated (ts 1298 ‑ 1300).
It was submitted that, 'after considering the fingerprint evidence together with all of the other evidence', a reasonable person could not exclude the possibility that the respondent had touched the trailer well before it was set alight and that he was not present when it was set alight.
Counsel disputed that the CCTV footage from the Greenwood Shopping Centre at about 7.30 am on 11 August 2016 showed that the respondent 'looked closely at the ATM or that he paid any attention to it at all'. Counsel also contended that there was no evidence to support the State's allegation that the Holden Commodore vehicle purchased in the name of the respondent's father for $15,000 was in reality purchased for the respondent.
Counsel for the respondent submitted that if all of the evidence is considered at its strongest from the point of view of the State's case, and on the assumption that all inferences most favourable to the State, which are reasonably open, are drawn, the evidence was not capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the respondent's guilt on count 12, because:
(a)it is not possible to exclude the hypothesis that the respondent was not present when the trailer was set alight; and
(b)there is no evidence that the respondent was part of a plan to set the trailer alight.
The merits of the appeal
The test to be applied by a trial judge in determining a submission of no case to answer at the close of the State's case has been considered and discussed in numerous authorities.
The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.
Where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence, the trial judge should rule on the submission on the basis of such inferences as are reasonably open on the evidence and as are most favourable to the prosecution. The trial judge should not choose between such inferences. He or she is concerned only with whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt that the accused is guilty or, to put it another way, could exclude all hypotheses consistent with innocence as not reasonably open on the evidence. See The State of Western Australia v Burke.[1]
[1] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 [19] (Buss JA; Martin CJ & Mazza J agreeing).
Where the State's case relies on circumstantial evidence, the circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier.[2]
[2] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).
In the present case, there is no merit in counsel for the respondent's assertion that the absence of Mr Clarke as a State witness at the new trial will weaken the State's case in relation to count 12. As we have mentioned, Mr Clarke pleaded guilty to the Gwelup and the Greenwood offences prior to the commencement of the original trial. He has been sentenced. At the new trial the State will be able to prove the judgments of conviction entered against Mr Clarke in relation to the Greenwood offences (including, in particular, in relation to count 12). The State will also be able to prove that Mr Clarke's fingerprints were recovered from the trailer that was found burnt at the bush location in Neerabup.
We are satisfied, for the following reasons, that the trial judge erred in law in deciding that the respondent had no case to answer on count 12.
Although his Honour stated the correct legal test to be applied in determining a submission of no case to answer at the close of the State's case, his Honour did not apply that test correctly to the circumstantial evidence relied upon by the State.
First, the trial judge failed to evaluate, in the context of count 12, the circumstantial evidence relied upon by the State in its entirety.
A significant part of the State's case in relation to count 12 comprised the facts that were reasonably open to be found and the inferences that were reasonably open to be drawn in respect of each of counts 7, 8, 9, 10 and 11. As we have mentioned, his Honour held that the respondent and the other accused had a case to answer on counts 7, 8, 9, 10 and 11.
It is apparent from his Honour's reasons that he examined the significance of the whole of the evidence relied upon by the State in relation to counts 7, 8, 9, 10 and 11. However, his Honour did not examine in his reasons the significance of the whole of the evidence relied upon by the State in relation to count 12. The primary force of the State's case in respect of count 12 was to be found in the chain of events constituting counts 7, 8, 9, 10 and 11.
Rather, his Honour focussed on the limitations in the tyre impression evidence and the fingerprint evidence.
It is true that there were limitations in the tyre impression evidence. Senior Constable Vogels said, without objection, that the tyre impression 'could have come from' a tyre with the same class characteristics as the tyres fitted to the Landcruiser, registration number 8EW-001, but he conceded that the tyre impression 'could have come from' a tyre other than the tyres fitted to that vehicle. However, the tyre impression evidence was only a minor aspect of the State's circumstantial case.
It is also true that there were limitations in the fingerprint evidence in that it was not possible for Sergeant Byard to say when the respondent's fingerprints were deposited on the trailer; in particular, whether they were deposited at or about the time the trailer was set alight. However, the fingerprint evidence in relation to the respondent and Mr Clarke established a direct connection between the respondent and Mr Clarke, on the one hand, and the trailer, on the other, in circumstances where the trailer had been stolen, the respondent and Mr Clarke had no lawful right to possession of the trailer, and there was circumstantial evidence which indicated that the trailer had been used in connection with the Greenwood ram-raid (notably, to transport the stolen ATM).
The evaluation of the whole of the circumstantial evidence relied upon by the State, in the context of count 12, required his Honour to take into account the process of reasoning which underpinned the State's case in relation to each of counts 7, 8, 9, 10 and 11. The circumstantial evidence which established that there was a case to answer on counts 7, 8, 9, 10 and 11 had to be brought to account, including or together with:
(a)the evidence that the trailer had been stolen;
(b)the evidence that the respondent and Mr Clarke had no lawful right to possession of the trailer;
(c)the evidence which indicated that the trailer had been used in connection with the Greenwood ram-raid (notably, to transport the stolen ATM);
(d)the evidence that the trailer had been abandoned and burnt;
(e)the evidence that the trailer had been abandoned and burnt shortly after the Greenwood ram-raid had occurred;
(f)the evidence that the trailer had been abandoned and burnt about 20 km from the Greenwood Shopping Centre, and that the time required to travel by vehicle from the Greenwood Shopping Centre to the Neerabup location was relatively short;
(g)Senior Constable Dibello's evidence to the effect that at the Neerabup location there appeared to be a burnt ATM machine in close proximity to the burnt trailer;
(h)the evidence that the Nissan Navara vehicle used in connection with the Greenwood ram-raid had been abandoned and set on fire;
(i)the tyre impression evidence;
(j)the fingerprint evidence; and
(k)the evidence which indicated that there were four offenders in relation to each of counts 7, 8, 9, 10 and 11,
in determining whether the circumstantial evidence in its entirety established that there was a case to answer on count 12. The jury was entitled to think that those who had stolen the trailer (count 8) and used it in the Greenwood ram-raid (counts 9 and 10) had possession of it, and had an obvious motive and opportunity to destroy the trailer. Nothing in the evidence suggested any motive for any other person to do so.
Secondly, the trial judge failed to take the evidence at its highest in favour of the State and failed to draw all reasonable inferences open on the evidence in favour of the State.
Rather, his Honour focussed on other inferences, unfavourable to the State, which might be drawn. For example:
(a)His Honour noted that there was no evidence to explain when and in what circumstances the tyre impressions were made or when and in what circumstances the respondent's fingerprints were applied to the trailer. However, the tyre impression evidence and the fingerprint evidence revealed that there was no inconsistency between that evidence, on the one hand, and the State's case as a whole in relation to count 12, on the other, in circumstances where the primary force of the State's case in respect of count 12 was to be found in the chain of events constituting counts 7, 8, 9, 10 and 11.
(b)His Honour said there was a possible inference that a third party unrelated to the respondent and the other accused may have burnt the trailer at the Neerabup location. That may not, in the circumstances, be a reasonable inference, but in any event his Honour's reference to that possible inference deflected attention from his obligation to take the evidence at its highest in favour of the State and to draw all reasonable inferences open on the evidence in favour of the State.
The extent to which the CCTV footage from the Greenwood Shopping Centre at about 7.30 am on 11 August 2016 showed the respondent paying attention to the ATM involved a question of fact for the jury. The question whether the Holden Commodore vehicle purchased in the name of the respondent's father for $15,000 was, in reality, purchased for the respondent, required the jury to decide whether to draw an inference to that effect based on all of the relevant circumstantial evidence. The State's case in relation to both of those issues was at least reasonably arguable.
We are satisfied that the trial judge erred in law as alleged in ground 1 of the appeal.
The only conclusion reasonably open, on a proper application of the correct legal test, is that the circumstantial evidence relied upon by the State established that the respondent had a case to answer in respect of count 12. It follows that ground 2 of the appeal has been made out.
His Honour's decision to enter a judgment of acquittal on count 12 was based upon the errors alleged in grounds 1 and 2. It follows that ground 3 has been made out.
Conclusion
On 27 July 2018, we made the order set out in [2] above for the reasons we have given.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS23 NOVEMBER 2018
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