Reported Decision : (2002) 127 A Crim R 599 New South Wales Court of Criminal Appeal CITATION : Regina v Jeffrey Paul Noonan [2002] NSWCCA 46 FILE NUMBER(S) : CCA 60718/00 HEARING DATE(S) : 28/2/02 JUDGMENT DATE : 28 February 2002 PARTIES : Jeffrey Paul Noonan (Appellant) Regina (Respondent) JUDGMENT OF : Beazley JA at 21; Bell J at 1; Smart AJ at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3070 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : RJ Button (Appellant) RD Ellis (Respondent) SOLICITORS : Joanne Harris (Appellant) S E O'Connor (Respondent) LEGISLATION CITED : Crimes Act 1900 Road Transport (General) Act 1999 Beresford v St Albans Justices (1905) 22 TLR 1 CASES CITED: M v The Queen (1994) 181 CLR 487 R v Taha and Yuksel (2000) 120 A Crim R 161 Regina v Olejrnik (1994) 36 NSWLR 567 DECISION : Appeal allowed; Appellant's conviction and sentence quashed and a verdict of acquittal substituted IN THE COURT OF CRIMINAL APPEAL 60718/00 BEAZLEY JA BELL J SMART AJ 28 February 2002 REGINA v Jeffrey Paul NOONAN Judgment 1 BELL J: On 10 July 2000 the appellant was arraigned on an indictment charging him that on 1 March 2000 at Minto being armed with an offensive weapon, namely a pair of scissors, he did rob Teresita Yaghooti-Fam of 2 hand-bags and their contents, being the property of Teresita Yaghooti-Fam. The offence is provided for by s 97(1) of the Crimes Act 1900 ("the Act"). It carries a maximum penalty of twenty years imprisonment. The appellant pleaded that he was not guilty. A jury was empanelled and, following a short trial, returned a verdict of guilty on 11 July 2000. 2 On 20 October 2000 the appellant was sentenced to a term of imprisonment of one year and nine months, specified to commence on 18 September 2005. A non-parole period of one year and five months was fixed to expire on 17 February 2007. By notice of appeal dated 24 October 2000 the appellant appeals against his conviction and seeks leave to appeal against the severity of the sentence imposed upon him. 3 At about 6:50 pm on 1 March 2000 Ms Yaghooti-Fam alighted from a train at Minto Station. She left the Station and walked down Redfern Street turning left into Kent Street. She was carrying two bags, one over her shoulder and the other in her left hand. As she was walking she heard a car approaching from behind. The car stopped and a woman got out of the front passenger seat and approached Ms Yaghootie-Fam. The woman took hold of Ms Yaghootie-Fam's shoulder bag and there followed a short tug-of-war between the two of them. Ms Yaghooti-Fam estimated this struggle had taken about two minutes. It concluded when Ms Yaghooti-Fam saw that the woman was holding a pair of scissors. The cutting blades of the scissors were covered in tissue paper. When Ms Yaghooti-Fam realised that her assailant was armed with a pair of scissors she loosened her grip on the shoulder bag. The female offender took hold both of the shoulder bag and the handbag and got back into the car which drove off. 4 During the struggle Ms Yaghooti-Fam heard the driver of the car call out "give it up stupid". When she heard those words she bent down and made some observations of the driver of the vehicle. She was able to see the left side of his face. She formed the impression that he was a "very good looking fellow". She thought he would be aged around twenty-eight to thirty-two years. He did not appear to be older than thirty-five years. She said that he was "a little bit tall and not so fat and so so thin, but really a very nice stature of a man". He had dark hair. She was not able to describe the man's clothing. 5 Ms Yaghooti-Fam was not able to identify the driver of the vehicle. It is common ground that the appellant answered the general terms of the description given by her. 6 Ms Yaghooti-Fam was able to give a somewhat more detailed description of the female offender. She was described as wearing an empire cut garment predominantly blue in colour and of knee length. She had blonde hair and was European in appearance, aged around twenty-five to twenty-eight, perhaps thirty years old. She was taller than Ms Yaghooti-Fam, possibly between five foot, four to five foot, six inches. It was not in issue that the female offender was Lee (a k a Michelle) Rhianon Noonan, who was at the time the de facto spouse of the appellant. 7 Ms Yaghooti-Fam made a note of the registration number of the vehicle used by the two offenders. It was a green sedan registered number QRN 814. The robbery was promptly reported to the police. 8 At around 9:00 pm on 1 March 2000 Constable Marshall and Senior Constable Berry were patrolling in the Eaglevale Market Place car park at Campbelltown. They observed a green Toyota sedan bearing registration plates QRN 814. This vehicle appeared to have two occupants. A short time later the officers stopped the vehicle and spoke with the occupants. The appellant was the driver and Lee Noonan the passenger. A pair of black handled scissors was found in the glove-box of the vehicle. They were consistent with the scissors presented to Ms Yaghooti-Fam during the robbery. 9 The appellant asked Senior Constable Berry "what's this about, what's the problem". Senior Constable Berry replied "mate, you are under arrest in relation to a bag snatch that occurred in Minto about 7:00 pm, do you understand?" to which the appellant replied "yeah, it wasn't us". The appellant was then cautioned. 10 The appellant was also spoken to at the scene of his arrest by Detectives Moon and Brown. He reiterated that he knew nothing about a bag snatch. He was asked who owned the car and he responded "it's ours, it's not stolen". Detective Brown asked "where have you been tonight?" to which he replied "just driving around, we didn't do any bag snatch". He was conveyed to the Police Station. There he had a telephone discussion with a solicitor. Subsequently he declined to take part in an interview in relation to the matter. 11 A facsimile of a certificate issued pursuant to s 46 of the Road Transport (General) Act 1999 was admitted without objection. That showed that Lee Rhianon Noonan was the registered owner of a Toyota sedan registered QRN 814 at the relevant time. 12 The appellant gave evidence and denied involvement in the robbery. He said that between about 5:00 pm and 8:00 pm on 1 March 2000 he had been playing the card machines at the Minto Pub. The Minto Pub is located in Redfern Street across the road from the Railway Station. Lee Noonan was with the appellant at the Minto Pub that night but not throughout the whole of the time that he was there. 13 The appellant said that at around 8:30 pm that night Lee Noonan approached him inside the pub saying "let's go get something to eat". At this time she was in company with a friend, Mark Curtis. In evidence the appellant said that Mr Curtis "came in with Lee. Apparently she met him up at the Mall". He said that he and Lee had driven the Eaglevale Shopping Centre to get something to eat. 14 The appellant challenged his conviction upon three grounds. In the way the matter was developed in the course of oral argument it is only necessary to deal with the first of those grounds which contends that the verdict is unreasonable and unable to be supported. In the appellant's submission this Court would find upon the whole of the evidence that it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty; M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493. 15 In written submissions the Crown contended that it was open to the jury to be satisfied of the guilt of the appellant by reason of the following facts and circumstances: (i) At 9:00 pm the police observed the appellant driving the vehicle which had been used in the armed robbery at 6:50 pm on that evening. (ii) The appellant's girlfriend/de-facto partner, Lee (a k a Michelle) Noonan was passenger in the vehicle at 9:00 pm and was conceded by the appellant to have been the female involved in the armed robbery offence. (iii) Scissors were located in the glove-box of the vehicle being similar to those used in the armed robbery. (iv) The appellant fitted the broad description that the victim gave of the male offender who was the driver of the car. 16 In the Crown's submission crucial to the prosecution case was the relatively short period of time that elapsed between the commission of the offence and the arrest of the appellant in the company of Ms Noonan. In his written submissions the Crown Prosecutor placed reliance upon the "retrospective operation of the presumption of continuance": R v Taha and Yuksel (2000) 120 A Crim R 161. 17 In Taha and Yuksel Carruthers AJ (in a judgment which Meagher JA agreed) considered that it had been open to the sentencing judge to be satisfied beyond reasonable doubt that a rifle used during the course of an armed robbery was loaded by reference to the circumstance that some three and a half hours after the commission of the offence when the police stopped the vehicle in which the offenders were travelling the rifle was located and upon examination it was found to be loaded. In the context of analysing fact finding for the purpose of sentencing His Honour described the conclusion that the rifle had been loaded at the time of the offence as a "classic case of the application of the principle of the retrospective operation of the presumption of continuance" (at 165). In this context he referred to Beresford v St Albans Justices (1905) 22 TLR 1 and to the discussion in Regina v Olejrnik (1994) 36 NSWLR 567 at 572-573. 18 In the course of oral submissions the Crown Prosecutor acknowledged that the presumption of continuance is no more than a convenient way of describing a process of logical reasoning involving the drawing of inferences from established facts. He very fairly acknowledged the difficulties confronting the Crown in the circumstances of this case. 19 I am not able to accept that the retrospective operation of the presumption of continuance might be called in aid so as to admit of an inference being drawn beyond reasonable doubt that the appellant was the driver of the Toyota sedan at 6.50pm, when Ms Noonan alighted from it, by reason of the fact that he was the driver of it at 9:00 pm when Ms Noonan was also travelling in it. True it is that the appellant answered the description of the driver of the vehicle given to the police by Ms Yaghootie-Fam. However the generality of that description deprives this circumstance of much in the way of probative value. The other circumstance relied upon by the Crown, namely that the scissors were located in the glove-box of the vehicle at 9:00 pm, does not bear relevantly on proof of the case brought by the Crown against the appellant. At the end of the day there remained a competing hypothesis which the Crown was not able to negative, namely that at 6.50 pm Ms Noonan was in the company of another dark haired man aged under thirty-five years or thereabouts. 20 I am of the opinion that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt. In the light of this conclusion it is not necessary to consider the other grounds of appeal. I propose that the appeal be allowed, the appellant's conviction and sentence be quashed and that a verdict of acquittal be substituted. 21 BEAZLEY JA: I agree. 22 SMART AJ: I also agree. 23 BEAZLEY JA: The orders of the Court will be those proposed by Bell J. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.