Regina v Rushton [2000] NSWCCA 513

New South Wales Court of Criminal Appeal

CITATION : Regina v Rushton [2000] NSWCCA 513 FILE NUMBER(S) : CCA 60061/00 HEARING DATE(S) : 24 November 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Regina v Kevin Thomas Rushton JUDGMENT OF : Sully J at 1; Bell J at 2; Howie J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0111 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : T.J. Golding (Appellant) L.M.B. Lamprati (Crown) SOLICITORS : Stephen Hodges (Appellant) S.E. O'Connor (Crown) CATCHWORDS : Summing up - Consciousness of guilt - lies LEGISLATION CITED : Criminal Appeal Act 1912 - s 6(1) CASES CITED: Edwards v The Queen (1993) 178 CLR 193 DECISION : Appeal allowed. Conviction quashed. Retrial ordered.

IN THE COURT OF CRIMINAL APPEAL

60061/00

SULLY J BELL J HOWIE J

FRIDAY 24 NOVEMBER 2000

REGINA v KEVIN THOMAS RUSHTON JUDGMENT

1 SULLY J: I agree entirely with the orders as proposed by his Honour. The orders of the court will be as proposed by Justice Howie. The appellant is remanded in his present custody to appear at 10 am in the Bails Court on Monday next. 2 BELL J: I also agree. 3 HOWIE J: The appellant appeals to this Court against conviction and sentence following a trial by jury in the District Court. The appellant was convicted by the jury of a charge of robbery in company contrary to s 97 of the Crimes Act 1900. The appellant was sentenced by her Honour Judge Karpin to 8 years penal servitude made up of a minimum term of 5 years and an additional term of 3 years. 4 The issue before the jury was whether the appellant was one of three persons involved in a robbery of a newsagency at Oatlands in suburban Sydney at about 3.30pm on 28 August 1997. There was no dispute at the trial that such a robbery occurred, that three persons were involved in it, that a van owned by the appellant's de facto wife was used in the robbery, or that one of the robbers was a man named Mark Fussell. The Crown case was that the jury would be satisfied beyond reasonable doubt that the driver of the vehicle at the time of the robbery was the appellant. 5 The evidence in the Crown case was largely unchallenged. It consisted substantially of accounts by persons who witnessed the three men at various times before, during and after the robbery. There was evidence of the presence of the van and the three men in the vicinity of the newsagency from about 3 pm until just after 3.30pm. There were accounts of the activities of the three men in relation to the van from which the jury could infer that it was used as the get away vehicle for the persons who actually were present in the newsagency committing the robbery. A bag was found in the van by the appellant's de facto wife and handed by her to police which contained items, including clothing, belonging to Mr Fussell. There was also evidence that in a search of the appellant's home police found a tracksuit which was identified by at least one witness as being similar to clothing worn by one of the robbers. 6 There was also before the jury a recorded interview between the appellant and police officers made after his arrest on 1 September 1997. During the interview, the appellant denied involvement in the robbery but conceded that the vehicle had been in his possession for the whole of the day of the robbery and that no other person had access to it during that day. The appellant told police that he had been dressed that day in a shirt, tie and black pants. He told the police of his movements on the day which included attending a hotel at Liverpool for a couple of hours in the afternoon and then stopping in Parramatta. He said that after leaving Parramatta and while returning to the city, he gave a lift to a hitchhiker whom he picked up on Victoria Road near Parramatta and whom he dropped a few kilometres up the road. He said that he became lost in a residential area, and at one stage alighted from the vehicle to ask directions from an elderly pedestrian. He denied knowing anyone named Mark Fussell 7 In June 1999, about five months before the commencement of the trial before Judge Karpin, an alibi notice had been served on the Crown indicating that the appellant intended to give evidence that he was at the Commercial Hotel in Liverpool at the time of the robbery. On 13 September 1999 notice was given that the appellant intended to call Cameron Fairweather as an alibi witness. 8 The appellant gave evidence at the trial that he had not told the complete truth to the police about his movements on the day of the robbery. He told the jury that he went to Liverpool at about 11.30pm and he there saw Mark Fussell, a person whom he had met previously. The appellant said that Mr Fussell asked him whether he could borrow his vehicle for about an hour because he had to collect money that was owed to him. The appellant at first declined to lend him the van but changed his mind when Mr Fussell offered him fifty dollars. While Mr Fussell was using the vehicle, the appellant waited at a hotel in Liverpool drinking beer and playing pool. He said he arrived at the Commercial Hotel a little before midday. It was while he was at the hotel that he met Mr Fairweather. 9 The appellant told the jury that he did not receive the motor vehicle back again until it was returned to him after 4.00pm. He said that, when returning the vehicle to him, Mr Fussell told him that he had a fight with the person who owed him the money and Mr Fussell bashed him. Mr Fussell also said that he thought someone might have taken the number plate of the vehicle and that, if anyone asked the appellant, he should say that he picked up a hitchhiker and dropped him off at Victoria Road. The appellant said that Mr Fussell reminded him of what happened to police informants. He told the appellant that he should not tell the police that he had the vehicle and Mr Fussell would look after him. 10 The appellant told the jury that he said to the police that he had possession of the van all day because he did know what was going on at first and he was afraid that his wife would find out that he had lent the car because they were having a lot of problems at the time and it was something that he did not need her to find out. He also said that he did not want to "dob in" Mark Fussell. 11 During the course of cross-examination by the Crown Prosecutor the following questions and answers occurred: "Q. You were a suspect of the armed robbery? A. That is right. Q. The police told you the car was used for the armed robbery? A. That is right Q. And yet you did not tell them - I am sorry. You told them that you had the car the whole day? A. That is right, yes. Q. You told them the car was not out of your possession? A. That is correct. Q. Did you know the consequences of telling the police that? A. Yes, I do. Q. That was the truth, wasn't it? A. I beg your pardon? Q. The truth was that you did have the car the whole day and it was not our of your possession? A. No, that's not correct. No."