W, JA v Police - [2010] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
W, JA v POLICE
[2010] SASC 76
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
30 March 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant convicted in Youth Court of aggravated robbery – alleged by prosecution that appellant was a lookout – only evidence of appellant’s involvement were police interviews and appellant’s evidence at trial – appellant’s evidence was that he took no part in robbery – trial judge rejected appellant’s explanation – trial judge found appellant’s conduct consistent with being a lookout for his co-offenders – whether evidence sufficient to establish beyond reasonable doubt the appellant was a party to the robbery – whether verdict unreasonable – consideration of role of Supreme Court on appeal from a judge of the Youth Court – Appeal allowed – verdict of acquittal substituted.
Youth Court Act 1993 (SA) s 22(3); Magistrates Court Act 1991 (SA) s 42; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
C, GM v Police [2007] SASC 310, applied.
Edwards v The Queen (1993) 178 CLR 193, distinguished.
Taylor v Hayes (1990) 53 SASR 282; Coghlan v Cumberland [1898] 1 Ch 704; C, GM v Police [2008] SASC 45; Police v A, TG [2006] SASC 299; R v Harris (1990) 55 SASR 321, considered.

W, JA v POLICE
[2010] SASC 76
Full Court: Doyle CJ, Bleby and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Bleby J. I agree also with his reasons.
BLEBY J.
Introduction
The appellant was charged with robbery using force against the receptionist of the Acacia Ridge Motel at Port Augusta in order to commit theft by taking money of the value of $350, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that this was an aggravated offence in that it was committed in company with one or more other persons. The date of the alleged offence was 4 November 2008.
At the time of the alleged offence the appellant was aged 13 years. He lived with his family on the outskirts of Port Augusta. The evidence discloses little about the personal circumstances of the appellant apart from his age. He was in year 8 at school.
The appellant’s alleged co-offenders were all adults, ranging in age, it seems, from 19 to 23.
The appellant was tried before a judge of the Youth Court and found guilty. He now appeals against that finding.
The facts
The circumstances of the robbery were outlined by the motel’s receptionist in a written statement which was tendered as part of the prosecution case. She was not called to give evidence at the trial. She described being confronted by three males in the reception area of the motel, one of whom came forward and punched her to the left side of her face before pushing her backwards and taking the till, containing about $350, from the counter. She described the male who attacked her as of aboriginal appearance. She was unable to describe the other two males other than that they were “a bit taller and a bit heavier than the first”. The other two males were standing by the door inside the reception area of the motel during the robbery.
No prosecution witnesses implicated the appellant as being involved in the robbery in any way, nor was there any forensic evidence linking him to the robbery. The prosecution case against the appellant was based solely on three records of interview of the appellant and the appellant’s oral evidence given at his trial. All three records of interview occurred on the same day, three days after the robbery.
In his first two records of interview the appellant denied any knowledge of the robbery. He later admitted to police in his third interview that he was in a car with four others and got out of the car near the motel after three of the others who went ahead and entered the motel. He claimed that he was not involved in the robbery and did not agree to be so involved.
The appellant’s evidence at the trial, which was consistent with his third statement to police, was that on the day in question his mother had bought him a pair of new Nike shoes and had said to him at the time “Don’t give them to no-one”. The appellant’s evidence was that he had on occasions swapped shoes with his friends, especially when one of them had a new pair of shoes. He went to the house of his friend, D, and together they were taken by D’s mother to the Forster Street Deli when they bought some food and drink. From there they both walked to S’s house, arriving there sometime between 1.00 pm and 2.00 pm. Another friend, J, was at S’s house with his car. Later, another friend, R, arrived at S’s house.
At some stage, and at R’s suggestion, J drove them all to a local hotel where they purchased liquor and returned to S’s house. They were sitting in the car drinking and talking. Despite his mother’s instruction, at some stage in the afternoon the appellant swapped shoes with his friend, D.
At some stage after sunset, at R’s suggestion, the five of them went for a drive in J’s car, with J driving. The appellant felt “a little bit” drunk. They drove for about 20 minutes at R’s direction. R was sitting in the front passenger’s seat. The appellant was sitting in the middle of the rear seat with S and D on either side of him.
R was becoming more aggressive and told J to stop the car in Dighton Street at the side of the motel. R proposed that they rob the motel and demanded that D and S “put their hand in”, which they did. The appellant said he refused to put his hand in and was getting anxious. He wanted to get out of the car, but he was scared. He was also hemmed in by two adults and began fearing for his safety if he did leave the group.
R, S and D got out of the car, leaving J in the driver’s seat. The appellant’s evidence was that he got out of the car a little later in order to try and recover his shoes from D so that he could leave. He called out to D as D was entering the front door of the motel, but D either did not hear or ignored him and went into the motel with the others. The appellant went no further than a pole approximately level with the front of the motel but some distance from the front door. He could not see what was going on in the motel, and then ran back to the car and asked J to drive off, but J refused.
The others soon returned to the car and J drove them all off.
In his evidence the appellant said that he was initially afraid to tell the truth to the police because of the possible consequences for him and for fear of retribution from his friends.
The prosecution case and the Judge’s findings
The prosecution case was that the appellant was party to a joint criminal enterprise with the other four to rob the Acacia Ridge Motel, and that his role was that of lookout while three of the others between them committed the robbery, with J remaining as the get away driver. However, in the prosecution’s closing written submission it was suggested that the appellant was also an accessory, but the submission was maintained that the appellant was acting as a lookout and therefore maintaining his involvement as a party to the joint criminal enterprise.
The trial Judge found the appellant guilty on the basis that he was a party to a joint criminal enterprise and that his role in the enterprise was that of a lookout. He concluded that there was “no reasonably (sic) possibility that the defendant’s version of events is true”. He rejected the appellant’s sworn evidence as “entirely implausible”. He concluded that there was “no reasonable possibility that the version of events proffered by the accused in his evidence is true. The very firm conclusion that I have reached is that his explanation should be rejected as a reasonable possibility.”
The Judge did not specify which part or parts of the appellant’s evidence he rejected. He must have accepted some, as the only evidence that the appellant was near the motel at the relevant time came from the appellant himself. Nevertheless, it is reasonably clear that the Judge at least rejected the appellant’s denial that he was party to a joint enterprise and rejected his stated reason for getting out of the car, namely to try to retrieve his new shoes from D. However, neither the prosecution nor the trial Judge relied on any lies told by the appellant as being evidence of his guilt.[1]
[1] Cf Edwards v The Queen (1993) 178 CLR 193.
The Judge made a number of findings that the appellant’s conduct was “consistent with” his involvement in the crime charged. The fact that the appellant and others ran back to the car was consistent, he said, with the desire to leave the area as soon possible. However, the Judge appears not to have acted on what was the only evidence, which was that the appellant ran back to the car well before and independently of the others. His running back to the car was also consistent, so it was held, with another reason for wanting to leave the scene, namely to disassociate himself from the crime.
The Judge found that the desire to leave the area as soon as possible was consistent with “full knowledge of the robbery”. However, knowledge of the robbery in itself does not imply complicity in it.
The Judge found that the alighting from the motor car at Dighton Street by the appellant in the first place was consistent with “the joint agreement of [the appellant] and others to attend at the reception for the purpose of robbing the attendant”. However, it does not explain the undisputed evidence that the appellant delayed his exit from the car until some time after the others had left.
The Judge found that the presence of the appellant “in close proximity and time to the other participants and his location immediately adjacent to the reception area of the motel” was consistent with the appellant acting as a lookout during the robbery. However, the only evidence of his position at the time of the robbery was his own evidence that he was in a position from which he could not see what was happening inside the motel, and from which he was unable to give any effective warning to those inside of the approach of any other person. The finding does not explain why two of the males, according to the receptionist’s evidence, were standing by the door while one of them committed the robbery. There was also no evidence that the appellant left or returned to the vehicle at the same time as the others.
The Judge found that the appellant’s alighting from the vehicle and attending “at the area outside the motel office” was consistent with his acting as a lookout during the robbery. However, as mentioned above, the only evidence of the appellant’s position outside the motel office was of a position from which he could not have given the perpetrators any effective warning.
Finally, the Judge found that the appellant’s attendance and flight following the successful robbery was consistent with an attendance “at the motel office area” with knowledge of what the others intended to do and was consistent with him agreeing to “put his hand in” to participate in the robbery. However, there was no evidence that the appellant attended “at the motel office area”. The only evidence was that he was some distance from it.
The point to be made, however, is that these findings, for some of which there was little or no justification in the evidence, were only ever “consistent with” the appellant’s participation in the crime. At no stage did the Judge ask himself whether those findings were consistent with innocence, and at no stage did the Judge ask himself whether those findings of consistency with participation could, in themselves, constitute a finding beyond reasonable doubt of his being party to the joint enterprise. The two are not the same. There are therefore flaws in the Judge’s reasoning resulting in his conclusion of guilt.
The role of this Court on appeal
Section 22(3) of the Youth Court Act 1993 (SA) provides:
(3)On the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the matter for hearing or further hearing;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
Those are, in substance, identical powers with those of this Court on an appeal from the criminal division of the Magistrates Court.[2] However, there is no equivalent in the Youth Court Act to s 42(4) of the Magistrates Court Act which enables this Court, if the interests of justice so require, to re-hear any witness or to receive fresh evidence.
[2] See Magistrates Court Act 1991 (SA), s 42(5).
However, the powers of this Court specified in s 22(3) of the Youth Court Act are supplemented by r 286 of the Supreme Court Civil Rules 2006 which provide:
286—Hearing of appeal
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may:
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
That Rule came into effect as from 1 January 2010, but r 292 of the Rules which applied upon the institution of this appeal was in identical terms. The Rule in that form has always applied to appeals to this Court from both the Magistrates Court and the Youth Court.
Of an appeal from the Magistrates Court to this Court, Sulan J in C, GM v Police[3] said:[4]
The court is required to arrive at its own decision, having regard to the evidence and after making its own assessment of the evidence. In so doing, the court should have regard to the findings of the Magistrate, in particular as to questions of credibility, having regard to the Magistrate having seen and heard the witnesses.
[Footnote omitted]
[3] [2007] SASC 310.
[4] Ibid [41].
Sulan J then referred to the examination by Perry J of the duties of an appellate court on the hearing of appeals from a magistrate in Taylor v Hayes[5] in which his Honour cited with approval the well-known dicta of the Court of Appeal in Coghlan v Cumberland[6] concerning appeals on disputed questions of fact. Sulan J then concluded:[7]
The duty of the appeal court is to examine the evidence and to arrive at its own opinion as best it can upon that material. That does not mean that a magistrate’s decision or findings are to be ignored, but it requires this Court to form its own views upon the material. That is not an easy task when issues of credit are central to the determination. Due regard must be given to the conclusions of the magistrate who had the advantage of seeing and hearing the witnesses.
Sulan J’s approach to that appeal was approved by the Full Court on the subsequent application for permission to appeal against that decision.[8]
[5] (1990) 53 SASR 282, 289-291.
[6] [1898] 1 Ch 704, 704-705.
[7] [2007] SASC 310, [43].
[8] See, C, GM v Police [2008] SASC 45, [31], [60], Doyle CJ, Bleby J agreeing, [77], Gray J.
Those are the principles which must therefore guide this Court on hearing an appeal from a judge of the Youth Court.[9]
[9] See also Police v A, TG [2006] SASC 299, [12]-[21], Sulan J with whom Nyland J agreed.
The application of the principles
Even if one accepts the rejection by the trial Judge of what I infer to be the relevant evidence of the appellant, namely that, having been in the car when the joint enterprise was conceived, he got out of the car shortly after the others and went some way towards the entrance of the motel in order to try and retrieve his shoes, and even if one accepts the rejection by the trial Judge of the appellant’s evidence that he was not party to the joint criminal enterprise and was not participating as a lookout, that is insufficient to find beyond reasonable doubt that the appellant was a party to the joint enterprise to rob the motel.
The rejection of the appellant’s evidence merely means that there is no direct evidence at all as to his reasons for getting out of the car and no direct evidence as to his participation in the agreement to commit the robbery or to use force to do so. As King CJ observed in R v Harris:[10]
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking "a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all": see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin.
[10] (1990) 55 SASR 321, 323.
It is possible, of course, to infer participation in such a joint enterprise from other proven facts, but at its highest in this case the evidence was that the appellant was standing outside the motel, some distance from the front entrance, when it was being robbed by others, and that he was in the car when the plan to commit the robbery was hatched. That is insufficient to establish beyond reasonable doubt that he was a party to an agreement to rob the motel, that he participated in the robbery as the lookout or that he intentionally aided and abetted others in the commission of the offence.
There was no evidence from which it could be inferred that the appellant and the others ran back to the car together, as seems to have been inferred by the trial Judge, and which the Judge found was consistent with his attendance “at the motel office area”. The only evidence before the Judge was that the appellant did not flee with the others but had in fact returned to the car before they did and while the others were in fact robbing the motel. The only evidence was that he returned to the car before the others had completed the robbery and tried to persuade J to drive off with him. Once again, if that evidence is rejected, there is just no evidence of flight at all.
The inevitable conclusion is that, even on the trial Judge’s findings as to the credit of the appellant, there was no evidence which could establish beyond reasonable doubt that the appellant was a party to or aided and abetted the commission of the offence.
If it were necessary to do so I would even go further and hold, on a consideration of the evidence, that this Court could not exclude a reasonable hypothesis consistent with innocence. For this purpose one must accept that the appellant initially lied to the police.
There was undisputed evidence as to the purchase by the appellant’s mother of new shoes for the appellant on that day, of the fact that he was prone, from time-to-time, to exchange new shoes with friends and of his mother’s injunction on that day not to give them to anyone.

The appellant was only 13. He was in the company of adults between six and ten years his senior. He had been drinking alcohol in their company and admitted to feeling “a little bit drunk”. His thought processes are likely thereby to have been impaired.
The plan to rob the motel was hatched by R in the car when he had directed J to stop the car in Dighton Street, at a time when the appellant was seated in the rear seat of the car between two other adult participants. It is not surprising that he might be overwhelmed by the circumstances in which he found himself: unable physically to escape and fearful that if he did, he might be subject to retribution. It is also not surprising that, in his impaired mental state and finding himself in the middle of a rapidly unfolding plan to commit a robbery, he might have overlooked the fact that D was still wearing his shoes until he saw D heading towards the front door of the motel. In that same confused state and mindful of his mother’s injunction, it is not surprising that his objective would then become to retrieve his shoes and leave the scene as quickly as possible, that he would attempt to do that and having failed, would return to the car. He had nowhere else to go, being far from home. It is also not surprising that he might unsuccessfully ask J to drive him away. At his age it is not surprising that he initially denied to police any knowledge of involvement out of fear of the possible consequences and of possible retribution from the adult participants.
On the evidence that is a reasonable hypothesis consistent with innocence, thus precluding a finding of participation beyond reasonable doubt.
Conclusion
For these reasons I consider that the appeal must be allowed, that the finding of guilt should be set aside and that there should be substituted a verdict of acquittal.
SULAN J: I agree with the reasons of Bleby J and the orders he proposes.