New South Wales Court of Criminal Appeal CITATION: Dunks v R; Miller v R [2010] NSWCCA 312 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 December 2010 JUDGMENT DATE: 16 December 2010 JUDGMENT OF: Simpson J at 1; Hall J at 2; Garling J at 3 DECISION: Convictions for each of the appellants on the charge of robbery in company are quashed. Verdict of acquittal entered in favour of each appellant. CATCHWORDS: CRIMINAL LAW – Offences – Robbery in company – Appeal against conviction – Unreasonable verdict – Where the victim was robbed by three men at night in Kings Cross – Where there was no evidence as to the exact time of the robbery – Where CCTV footage showed the appellants in company with one of the robbers near the location of the robbery at 2:30am – Where the appellants were subsequently found by police, and the victim, in the company of one of the robbers – Where the victim identified the robbers by their dark clothing, but the appellants were wearing light clothing – Where the Crown case relied largely upon identification evidence of the victim – Whether verdict was unreasonable and cannot be supported having regard to the evidence at trial. LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 CASES CITED : Regina v Habib [2005] NSWCCA 22 TKWJ v The Queen (2002) 212 CLR 124 Weiss v The Queen (2005) 224 CLR 300 2009/151583 Ronnie Paul Dunks (Applicant) Regina (Respondent) PARTIES: 2009/141812 Jade Michael Miller (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2009/151583; 2009/141812 2009/151583 R. Burgess (Applicant) P. Leask (Respondent) COUNSEL: 2009/141812 C. Loukas (Applicant) P. Leask (Respondent) 2009/151583 Aboriginal Legal Service (Applicant) S. Kavanagh, Solicitor for Public Prosecutions (Respondent) SOLICITORS: 2009/141812 Aboriginal Legal Service (Applicant) S. Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/151583 and 2009/141812 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 4 March 2010 IN THE COURT OF CRIMINAL APPEAL 2009/151583 2009/141812 SIMPSON J HALL J GARLING J THURSDAY, 16 DECEMBER 2010 RONNIE PAUL DUNKS v R JADE MICHAEL MILLER v R Judgment 1 SIMPSON J: I agree with Garling J. 2 HALL J: I agree with Garling J. 3 GARLING J: In the early hours of 19 March 2009, Jason Iles was walking through Springfield Plaza at Kings Cross in Sydney. He was approached by three men and robbed of his watch and cash. 4 He reported the robbery straight away to the Kings Cross Police Station and was asked to accompany officers from that Station in a police car as it drove around the Kings Cross area in an attempt to find the robbers. 5 In William Street, about 50 minutes later, he identified three men who were walking along the street as the people who had robbed him. 6 That group of three included Mr Michael Wilson who was wearing the victim's wrist watch, and who pleaded guilty to the offence of robbery in company, and the two appellants, Jade Michael Miller and Ronnie Paul Dunks. 7 Mr Miller and Mr Dunks denied being involved in any robbery. 8 On 4 March 2010, after a short trial of three days, a jury returned a verdict of guilty against Mr Miller and Mr Dunks on a charge that each of them in the company of each other robbed Jason Iles of a watch and a sum of cash. 9 Mr Miller and Mr Dunks appeal against their conviction on the basis that the verdict is unreasonable or cannot be supported having regard to the evidence. Legal Test for Unreasonable Verdict 10 The appellants have a right to appeal to this Court against their conviction on any ground which involves a question of law alone: s 5(1)(a) Criminal Appeal Act 1912. As this is an appeal on a question of fact, leave is required: s 5(1)(b) Criminal Appeal Act. 11 If the Court of Criminal Appeal is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, it is obliged on an appeal under s 5(1) to allow the appeal: s 6(1) Criminal Appeal Act. Where the Court is persuaded that the conviction is unsatisfactory, there is generally no scope for applying the proviso: TKWJ v The Queen (2002) 212 CLR 124 at [72] per McHugh J. 12 The ultimate question which this Court must ask itself is "… whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention": MFA v The Queen (2002) 213 CLR 606 at 634 [96] per McHugh, Gummow and Kirby JJ; Regina v Habib [2005] NSWCCA 223 at [56] per McClellan CJ at CL. 13 The test of whether the verdict of a jury is unreasonable or cannot be supported having regard to the evidence is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493: "Where, notwithstanding that as a matter of law, there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration of that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 14 In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment from that delivered by Gleeson CJ, Hayne and Callinan JJ. Their Honours said, when embracing the test enunciated by the majority of the High Court of Australia in M, to which I have referred above, that: "55. Nevertheless, in M , the majority of this Court favoured what might be termed a 'broader'test for unreasonableness or unsupportability of a verdict. Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence'. 56. The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: 'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'." 15 The exercise which the Court is to undertake is one in which the Court "… must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty…": Weiss v The Queen (2005) 224 CLR 300 at 316 [41] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ. 16 The Court went on to say in Weiss at [42]: "It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration." The Charge 17 The indictment against each of the appellants was in identical terms and was to this effect: "On 19 March 2009, at Potts Point in the State of New South Wales, being in company with each other and Norman Wilson, did rob Jason Iles of a Rolex watch and a sum of cash, the property of Jason Iles." 18 The offence setout the indictment was contrary to s 97(1) of the Crimes Act 1900. That section is in the following terms: " 97. Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person … shall be liable to imprisonment for 20 years." The Crown Case 19 The Crown Prosecutor in opening, and again in his closing address to the jury, made it plain that the case was a single issue case, that is to say, a case in which only one issue was the substance of any real challenge or dispute. That issue was whether the appellants were involved in the robbery which undoubtedly took place when Mr Iles was deprived of his watch and a sum of cash. 20 The Crown called Mr Iles the victim of the robbery. In his evidence in chief, he told the jury that he was unable, at the time of the trial, to give a description of the three people who robbed him. He was not able to say what they looked like nor what they were wearing. He agreed that he had given a description to police on the night in question. He said that he gave the robbers his watch and in response to persistent questioning about what else he had about his person, he said he took out his wallet and gave them the cash that was in it. He said it was about "four hundred and something dollars". When asked to identify the denominations of the money he said: "There were fifties and a couple of tens I think, I don't remember exactly how much it was now". 21 He said that he walked from the place where he was robbed to the Kings Cross Police Station and reported what had happened to the police officers. The evidence suggested that it would take a short time, of the order of 3 to 5 minutes, to complete that walk. 22 He said that he was asked to go with the police officers in the back of a police car whilst it drove around to see if he could spot the people who had robbed him. 23 His evidence of the circumstances of his identification of the appellants was important. It consisted of this (T35.45-T36.49): "Q. And you said that you saw – at one point you saw three men? A. Mm-huh. Q. Where abouts was that? A. Outside O'Malley's Hotel on William Street … Q. And the three people that you said you saw standing, were they on the footpath or on the road? Where … A. On the footpath. Q. Those three people, had you seen those people before? A. Yes I had. Q. Where had you seen them before? A. They were on the night in Springfield Plaza. Q. Can you tell the Court exactly when you say you'd seen these people at Springfield Plaza earlier in the night, in what circumstances exactly do you say you saw - A. In circumstances where they approached me and taken the money and watch from me. Q. So you're saying that these three people are the same three people that approached you and took your money earlier in the night? A. Yes they are. Q. When the car was approaching, when you first saw these three men, were they facing towards you or facing away from you? A. Facing away from me. Q. What was it about these three men that you recognised? A. The clothes that they were wearing. … Q. Do you remember if all three of them were wearing exactly the same clothing that they were earlier in the evening. A. Yeah, they were all wearing the same clothing as they were earlier on." 24 In cross-examination by counsel for Mr Miller, Mr Iles confirmed that he was not in a position to describe the men or the clothes that they were wearing as at the time he was giving evidence. He agreed that on the evening of the robbery there were more than three people in Springfield Plaza where the robbery occurred. He agreed that in making his initial identification of the three men in William Street, including the two appellants, he was relying on the clothes that they were wearing. 25 He then gave this evidence (at T45.21-44): "Q. And is that what clarified in your mind that these were the three guys, you saw the watch on one of them? A. No, I … … His Honour: Anyway he was about to answer that question, I'll let him answer it. Q. What did you say then? A. Okay, I saw the clothes first. As I said to the police officers "Can you slow down", they slowed down, I looked at their faces and then I saw the watch. Q. And it was after you saw the watch you said "That's them, pull over". Is that fair enough? A. No, it was when I saw their faces and then, when we stopped, I saw the watch." 26 He was then cross-examined about the descriptions which he gave the police, in particular, Inspector Jones. He said (at T48.41-50): "Q. Did you tell the Inspector of Police that the men who robbed you were two Aboriginal people and one Caucasian? A. Yep. Q. And that they were wearing black pants and a dark shirt, dark pants and a white top, and black pants and a dark top? A. Yep. Q. That's what you told him? A. They were the descriptions that I gave them from what I saw". 27 In cross-examination by counsel for Mr Dunks, Mr Iles agreed that in his police statement he said that the three men who approached him were three Aboriginal males. He was then asked about the clothes description which he had given police and he said this (at T52.29-39): "Q. So, just going over those two, first man, black tracksuit type pants and they were long, and a while coloured shirt? A. Yep. Q. Second man, black pants and a white coloured jumper on him, and it was a tracksuit top kind of material? A. Yep. Q. Third man, black coloured shirt and pants; you say they were bluey black colour? A. Yep." 28 Sergeant Brian Kenny identified the two appellants as being two of the three people stopped in William Street. He searched the two appellants. One, Mr Dunks, had three ten dollar notes and two five dollar notes in his pocket, the other had nothing on his person of any relevance to the robbery. 29 Sergeant Kenny agreed that the appellant, Mr Miller, when stopped, denied that he had robbed anyone. Sergeant Kenny agreed in cross-examination by counsel for Mr Dunks that when he was stopped, Mr Dunks was wearing light coloured or yellow knickerbockers, by which he meant mid-length shorts and a yellow polo style shirt. 30 Colour photographs of that clothing were tendered to the jury. 31 Inspector Jones was called by the Crown. He gave evidence that he had been in the police vehicle together with Sergeant Kenny and Mr Iles whilst it drove around the Kings Cross area looking for the people who had robbed Mr Iles. He gave evidence that Mr Iles had identified the three males as they were walking along William Street, the police vehicle had stopped and that he had shown the watch being worn by one of the men, not being either of the appellants, to Mr Iles and he had identified it as his watch. 32 Inspector Jones agreed in cross-examination by counsel for Mr Miller, that he had received a description from Mr Iles that each of the three robbers was wearing dark pants, but that two of the people who had been stopped had "light or white pants on". 33 He agreed that Mr Miller had denied being involved in any robbery as soon as he was spoken to. 34 The final witness in the Crown case was Detective Senior Constable Casey. He agreed that at the police station, when spoken to, Mr Dunks gave a short interview to the police during which he denied any involvement in the robbery in question. 35 Detective Senior Constable Casey also identified a series of photographs taken in the charge room on the evening in question. 36 Exhibit B consists of four photographs taken of Mr Miller wearing the clothes in which he was arrested. Exhibit C was a further photograph taken of the shorts that Mr Miller was wearing when arrested. It showed some detail of them. It is apparent from the photographs, Ex B, that Mr Miller was wearing a white T-shirt and white "Nike" sports shorts. The white T-shirt had on the front on it some printed black and grey words in the form of a design, but the T-shirt was substantially white. The Nike sports pants, with the exception of a dark stripe down each side, were substantially white. The shorts came to just about Mr Miller's knees. He was wearing white socks. 37 Detective Senior Constable Casey also took photographs of the appellant Mr Dunks on the night in question. Mr Dunks was wearing a pair of three-quarter length shorts, or knickerbockers, and a lemon coloured polo T-shirt. Underneath the T-shirt he was wearing a light coloured singlet. One particular feature, which is obvious from the photographs, Ex D, is that both arms of Mr Dunks had, from the biceps down to the wrists, tattoos which would be readily visible. 38 Detective Senior Constable Casey described the singlet as being a yellow singlet, he described the polo shirt as being yellow. 39 Detective Senior Constable Casey's photographs of the third man who was arrested, Mr Wilson, indicate that he was dressed in long black trousers which could have been tracksuit pants, a white short-sleeve polo style shirt with a collar, and was carrying a white hooded tracksuit style jacket. 40 Detective Senior Constable Casey also was responsible for playing in front of the jury the closed circuit television record of Springfield Plaza. The CCTV footage had on it the time it was recorded. Mr Wilson, who was the third man, who was arrested with the two appellants, was identified by Detective Senior Constable Casey in that CCTV footage. The question of identification of the other people seen in the CCTV was left to the jury. 41 In cross examination, he gave some evidence which suggested that Mr Iles had told police that he had left the Kings Cross Hotel (which was 5 minutes walk from Springfield Plaza), sometime between 2.15am and 2.30am. The evidence itself, elicited only in cross examination, was itself somewhat imprecise. The account which Mr Iles himself gave to the police was also vague and imprecise as to time. 42 Having regard to the fact that Mr Iles walked from the robbery directly to the Kings Cross Police Station, the most accurate way of fixing the time of the robbery would have been by reference to the time of his first arriving there. However, the Crown did not lead any evidence of this time. Case for the Accused 43 Neither of the accused gave any evidence. Submissions for the Crown 44 The Crown's submissions which were commendably brief, put to the jury that the jury would be satisfied that the two appellants were two of the three people responsible for the robbery of Mr Iles. In support of that submission, the Crown relied upon these features: (a) The identification by Mr Iles of the three men walking on William Street; (b) The fact that one of the three men was wearing the watch which Mr Iles identified as his own and which had been taken from him in the robbery; (c) That the jury would be persuaded that two men seen on the CCTV footage at Springfield Plaza were the appellants, Mr Dunks and Mr Miller. Further that the two appellants were in company with Mr Wilson when they crossed Darlinghurst Road at 2.36 am. (d) That Mr Dunks had in his possession $40 at the time he was arrested, although the Crown submitted to the jury that this was " a small point ". 45 The Crown Prosecutor put to the jury that Mr Iles was mistaken about the description of clothing which he gave to the police. The Crown concluded his submissions in this way: "Ladies and gentlemen, that's all I have to say to you, and as I have said to you, it's a very short trial. The evidence is quite simple, the issue is quite simple. Are those the same three men, are they the same three men who leave Springfield Plaza? As I have said to you, there doesn't seem any challenge that Mr Iles was robbed in Springfield Plaza at around about that time. There was a gold watch taken from him. There was some money taken from him, and part of that money is made up of three tens and two fives and as I have indicated, that matches the property that was found on those three, the two accused and Norman Wilson. Very finally ladies and gentlemen, I submit to you that when you look at all the evidence in its entirety, and in considering those parts that are not favourable to the Crown case like the clothing for example, that you still would find that the Crown has proven to you beyond a reasonable doubt the guilt of the two accused." Submissions for the Appellants 46 Each counsel for each appellant submitted that the Crown case was not adequate to establish the guilt of the appellants beyond reasonable doubt. 47 Counsel for Mr Miller invited the jury to note that his client was not carrying any money, Mr Iles' watch, or any other property indicative of being involved in the robbery. He pointed out that the clothing that Mr Miller was wearing when stopped in William Street was entirely dissimilar from any of the descriptions which had been given by Mr Iles to the police, and that Mr Miller when stopped, had denied being involved in any robbery. 48 He also submitted that the figures which the jury could see in the closed circuit television did not include his client. 49 Counsel for Mr Dunks put to the jury that they would not be satisfied beyond reasonable doubt that Mr Dunks was one of the three people that robbed Mr Iles. He did not suggest that there had not been robbery, simply that his client was not proved to have been involved in it. 50 His submissions concentrated on the discrepancy between the description of clothing given to the police by Mr Iles and the clothing which his client was wearing at the time of his arrest. He noted that the description of the robbers that had been given by Mr Iles to the police did not include important factors such as the age of the people involved, the height of the people involved, the hair colour, whether their hair was short or long, whether they had facial hair or not, or any combination of those matters. In short, what he put was, that there was no adequate identification given to the police of the three people involved in the robbery. Discernment 51 The time between when the robbery is said to have occurred and the time when the two appellants were stopped in William Street was of the order of about 50 minutes, but this depended upon fixing accurately the time at which the robbery occurred. On all accounts, the time between the two events was a significant one. 52 It is clear that the victim of the robbery did not identify the three assailants by reference to any facial or other features. He did so by reference to their Aboriginality and the clothes that they were wearing. 53 To give a description of a person as either a Caucasian or an Aboriginal, or some other like racial description, is a description of a most general kind. It is not of itself indicative of a description of any one particular individual. 54 However, the description of the clothing given by Mr Iles to the police was quite specific. It is of particular importance that the description which he gave involved each of the robbers wearing dark trousers, and with one exception, dark tops. The description which he gave of one of the three assailants wearing a light coloured top and a tracksuit type top clearly fitted Mr Wilson who was walking along William Street wearing Mr Iles' wristwatch. 55 The clothing being worn by the appellants, Mr Dunks and Mr Miller, in William Street could not, on any basis, accord with the description of the clothing which Mr Iles had given to the police. The Crown accepted this in front of the jury. 56 The fact that the appellants were in company with Mr Wilson who was identified, clearly, as being involved in the robbery, does not make them, without more, also participants in the robbery. The mere fact that they were in the company of Mr Wilson some 50 minutes later is an entirely neutral factor of itself. 57 The CCTV footage did not clearly identify the appellant Mr Miller. Even if the jury took the view that the appellants were seen in the company of Mr Wilson on the CCTV footage, the timing of that footage, together with the obvious fact that there were a number of other people in Springfield Plaza at the time, did not demonstrate that the appellants were involved in the robbery of Mr Iles. 58 The Crown's argument that one significant circumstance which pointed to the guilt of the appellants was that they together with Mr Wilson were seen crossing Darlinghurst Road together, immediately after the robbery, depended entirely upon a conclusion that the robbery occurred at about 2.35am. But there was no acceptable evidence that this was in fact the time of the robbery. All the CCTV showed was, if it be accepted that the images were actually of the appellants, that they crossed the road at that time. It did not show, and was not a satisfactory basis to conclude, that the appellants were involved in the robbery. 59 The fact that the appellant Mr Dunks had $40 in his possession is, to my way of thinking, again, an entirely neutral factor. There may have been a coincidence in the denomination of the notes which Mr Iles was carrying, and those that Mr Dunks was carrying, but that coincidence is not so unique as to indicate with any probative value that Mr Dunks had been involved in the robbery. Ten dollar and five dollar notes are commonly carried by people in the community. 60 As well, there was, on Mr Iles' evidence, also $400 which he had been carrying in fifty dollar notes. It is not suggested that either of the appellants, Mr Dunks or Mr Miller, had that money in their possession. Nor is it suggested that Mr Wilson had that money in his possession. There was no actual explanation offered by the Crown for the absence of that money. 61 There were two possible explanations for the absence of this $400. They were either that the money had been spent, or alternatively, that others involved in the robbery, had kept that money. Since there was no proof, or any cogent suggestion, that the money had been spent, the remaining hypothesis, namely that the money had gone to others involved in the robbery, needed to be excluded by the Crown. 62 This was a case which turned on an identification given in circumstances which to my mind were thoroughly unpersuasive. The single feature of the identification was the clothes that were worn by the three men, including the two appellants, stopped in William Street. 63 In the case of the two appellants, the clothing did not fit within the description given to the police of those involved in the robbery. 64 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 that the two appellants were guilty. It follows, that in my opinion, the verdict of guilty returned by the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence at the trial. 65 I am satisfied that a substantial miscarriage of justice has occurred. Sentence 66 Both of the appellants sought leave to challenge the sentences which were imposed. In light of my conclusion about their appeals on the question of their convictions, there is no reason to consider and express any view about the sentences which were imposed. I therefore refrain from so doing. Orders 67 I propose the following orders: (1) Leave to appeal be granted to each of the appellants. (2) Convictions of guilty for each of the appellants on the charge of robbery in company be quashed. (3) Verdict of acquittal be entered in favour of each appellant on the charge of robbery in company. ********** 02/05/2011 - Typographical error - Paragraph(s) 6 and 37 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.