R v Darren Ronald STRICKLAND [2005] NSWCCA 133

New South Wales Court of Criminal Appeal

CITATION: R v Darren Ronald STRICKLAND [2005] NSWCCA 133

HEARING DATE(S): 5 April 2005

JUDGMENT DATE: 5 April 2005

JUDGMENT OF: Spigelman CJ at 1, 19; Studdert J at 17; Howie J at 18

DECISION: 1 Appeal allowed; 2 Verdict of acquittal entered.

CATCHWORDS: CRIMINAL LAW - APPEAL OF CONVICTION - Whether verdict unreasonable having regard to the evidence.

Criminal Appeal Act 1912 LEGISLATION CITED: Evidence Act 1995: s137

M v The Queen (1994) 181 CLR 487 CASES CITED: MFA v The Queen (2002) 213 CLR 606

Darren Ronald Strickland (Appellant) PARTIES: Regina (Respondent)

FILE NUMBER(S): CCA 2004/3112

M J King (Appellant) COUNSEL: E Wilkins (Respondent)

Armstrong Legal (Appellant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0272

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

- 3 - IN THE COURT OF CRIMINAL APPEAL 2004/3112

SPIGELMAN CJ STUDDERT J HOWIE J

Tuesday 5 April 2005 REGINA v Darren Ronald STRICKLAND Judgment 1 SPIGELMAN CJ: The Appellant was tried on indictment on a charge of being an accessory before the fact to robbery whilst armed with a dangerous weapon. He pleaded not guilty. He was found guilty after a trial before a jury. The armed robbery was committed by two persons: Telusa Mapapalangi and Alani Vaotangi. 2 On 26 May 2002 Mapapalangi and Vaotangi entered the Burwood Hotel whilst armed, respectively, with a stun gun and a revolver. A third offender, Alan Mesui waited in a vehicle outside. Mapapalangi and Vaotangi confronted the manager of the hotel as he was taking the takings of some $22,000 from the second level, to the safe located on the third level. They forced him into a back office located on the second level where they unsuccessfully searched for a safe. They then forced him into the second level poker machine area where staff were located. Staff were bound and the manager taken to the bar area where the offenders unsuccessfully sought to obtain access to a bar safe. When first confronted, the manager activated a silent alarm using a remote device in his pocket. As a result police officers attended the hotel prior to the completion of the offence but the offenders fled. They were subsequently apprehended. 3 Each of Mapapalangi and Vaotangi gave statements to the police in which they implicated the Appellant. The Appellant had been employed as a security guard at the hotel until a few weeks prior to the robbery. They alleged that prior to the robbery the Appellant provided information to them as to the best week, day and time to commit the robbery, how to gain entry, where the security guard was likely to be, where the safe was and the anticipated takings available. They said that the Appellant was to receive part of the proceeds from the robbery. 4 Mapapalangi and Vaotangi gave evidence at the committal proceedings to the effect that they had falsely accused the Appellant of providing information. At the trial they continued to assert that the Appellant was not involved. Each was declared an unfavourable witness and cross-examination by the Crown was permitted with respect to their prior statements. 5 The Appellant did not give evidence at the trial. He had however been interviewed and denied providing any information or committing any offence. The Appellant had met Vaotangi who was a boyfriend of the half cousin of the Appellant's de facto. When shown a photograph of Mapapalangi he indicated that he may have seen him at the hotel with Vaotangi. 6 The Appellant appeals on the basis that the verdict is unreasonable having regard to the evidence, within the meaning of s6(1) of the Criminal Appeal Act 1912. 7 On the day of the robbery, about an hour before it occurred, there was a 43 second telephone call from a mobile phone used by the girlfriend of Mapapalangi to a mobile phone belonging to the Appellant's de facto. This was the only objective evidence in any way connecting the Appellant to the offenders. The only other evidence capable of doing so was the cross-examination by the Crown on the prior inconsistent statements of Mapapalangi and Vaotangi. 8 His Honour had earlier decided to admit the evidence despite an objection being taken under s137 of the Evidence Act 1995 and, subsequently, refused an application to withdraw the evidence of Mapapalangi and Vaotangi from the jury. 9 The Crown concedes that this appeal must be allowed. That concession was properly made. The principles applicable to the determination of a ground of appeal based on the unreasonableness of the verdict are outlined by the High Court in M v The Queen (1994) 181 CLR 487 at 493, subsequently applied and affirmed on numerous occasions including by the High Court in MFA v The Queen (2002) 213 CLR 606 at [45]-[59]. 10 Although the test to be applied is that identified in the terminology of the statute, nevertheless the approach identified in M is appropriate, i.e. was it "open to the jury" to be satisfied of the accused's guilt beyond reasonable doubt and that in "most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" (see M supra at 494). 11 I have no difficulty in concluding that I have such a doubt and that a jury ought also to have had such a doubt. 12 There was no evidence of any character linking the Appellant to the offence other than the statements to the police given by the two persons who conducted the robbery. The call from a mobile phone, which had some connection with one of the perpetrators of the offence, to a mobile phone, which had some connection to the Appellant, was altogether too tenuous to provide any relevant link. 13 The objective circumstances pointed against any involvement by the Appellant. The conduct of the actual attempted robbery was quite inconsistent with a person in the position of a security officer having advised the two perpetrators in the detailed manner that their statements to the police suggested he had done. Considerable time was expended in a futile search for a safe in the second floor office, when the actual safe was on the third floor. Similarly, the perpetrators had no notice of the fact that the manager carried a remote which could set off a silent alarm that would alert police at the local station which was very near the hotel. 14 There will be circumstances in which criminals seek to withdraw statements implicating others where such are proper to be acted upon, notwithstanding the very serious doubts raised about their credibility, both by their criminal conduct and by their vacillation. This is not such a case. 15 The absence of any other relevant evidence and the existence of objective circumstances which indicate that it was unlikely that the Appellant had been involved in any prior briefing of the perpetrators is such that in this case the Crown's concession was properly made. 16 The appeal should be allowed and a verdict of acquittal entered. 17 STUDDERT J: I agree. 18 HOWIE J: I agree. 19 SPIGELMAN CJ: The orders will be as I have indicated. **********