R v WEST [2003] NSWCCA 403

New South Wales Court of Criminal Appeal

CITATION : R v WEST [2003] NSWCCA 403 HEARING DATE(S) : 18 December 2003 JUDGMENT DATE : 18 December 2003

JUDGMENT OF : Santow JA at 10; Hulme J at 1; Hidden J at 11 DECISION : Appeal allowed; Conviction and sentence quashed

PARTIES : Regina Anthony Charles WEST FILE NUMBER(S) : CCA 60485/03 COUNSEL : Crown: M Grogan Appellant: C Craigie SC SOLICITORS : Crown: S Kavanagh Appellant: P Katsoolis

LOWER COURT District Court JURISDICTION : LOWER COURT 03/61/0020 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

- 3 - IN THE COURT OF CRIMINAL APPEAL 60485/03

SANTOW JA HULME J HIDDEN J

Thursday 18 December 2003 REGINA v ANTHONY CHARLES WEST Judgment 1 HULME J: On 10 April 2003 the appellant was convicted of one count of robbery in company, the company being someone by the name of Stewart. 2 On 8 May 2003, Judge Woods sentenced the applicant to imprisonment for a period of 3 years from 31 December 2002, such term to include a non-parole period of one year. 3 The circumstances relied upon by the Crown were as follows: The applicant and Stewart had spent some time together that morning, it would seem drinking in the local park; in the middle of the day, the victim was walking along a street outside a McDonald's store; the applicant, then slightly in advance of Steward, and Steward approached and asked the victim if he had a cigarette. The victim stopped his perambulations and took steps to provide a cigarette, or cigarettes, from butts or tobacco which he had on him. 4 Whilst the three were together standing on the footpath, possibly leaning against, or half sitting on a post and rail fence immediately adjacent to the footpath, Mr Stewart did a number of things. One was to walk away for some little distance purportedly to tie his shoe laces and then return to where the other two were still engaged in discourse or smoking or the provision of a cigarette. 5 At one stage Mr Stewart made an unsuccessful attempt to remove the victim's wallet from the rear pocket of his trousers. It may be inferred the Applicant was aware of this. The three remained together for a short period thereafter and Mr Stewart made another – this time unsuccessful - attempt to relieve the victim of his wallet. The victim chased Mr Stewart who, after a minor physical exchange with the victim, ran away, though he was picked up shortly thereafter by the fortuitous arrival of a police van. 6 After Mr Stewart and the victim ran off, the applicant remained where he was for a short period and then himself walked away. According to the victim, when he started chasing Mr Stewart, the applicant called out, "It wasn't me, I never touched ya, it wasn't me, I never done it." 7 The case for the applicant on the appeal is that the evidence led against him was insufficient to support the verdict. That is a proposition with which I agree. 8 Whatever suspicions one may have, the evidence is quite consistent with Mr Stewart acting on his own behalf and without any pre-concert or involvement of the applicant and this, even if one should draw the inference, that the appellant was agreeable to Mr Stewart succeeding in his dishonest endeavours. The case against the applicant of being a participant with Mr Stewart is a circumstantial one and the evidence does not, in my view, come up to the standard required for the Crown to make out a circumstantial case. 9 Accordingly, I would propose that the appeal be allowed and the applicant's conviction and sentenced quashed. 10