Citation: R v Darren Ronald Strickland [2005] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 5 April 2005
Judge(s): Spigelman CJ, Studdert J, Howie J
Background
The appellant was convicted by a District Court jury of being an accessory before the fact to an armed robbery at a hotel in Burwood. The Crown's case was that the appellant, a former security guard at the hotel, had provided the two perpetrators with inside information before the robbery: the best time to strike, how to enter, the location of the safe, and the likely takings available.
The two men who carried out the robbery initially gave police statements implicating the appellant. Both then retracted those statements at committal proceedings, and maintained at trial that the appellant had no involvement. The trial judge declared them unfavourable witnesses and permitted the Crown to cross-examine them on their prior inconsistent statements to police.
The appellant did not give evidence at trial. His only objective connection to the perpetrators was a 43-second phone call made from the girlfriend of one perpetrator to the mobile phone of the appellant's de facto partner, occurring roughly an hour before the robbery.
Legal Issues
- Whether the jury's verdict was unreasonable having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912
- Whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the evidence presented
Decision
The Court of Criminal Appeal allowed the appeal unanimously. The Crown conceded the appeal should succeed, and Spigelman CJ held that the concession was properly made.
Applying the test in M v The Queen (1994) 181 CLR 487, the court asked whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, noting that a doubt experienced by an appellate court will ordinarily be one a jury ought also to have experienced. Spigelman CJ expressed no difficulty in concluding that such a doubt existed.
The court found that the only evidence connecting the appellant to the offence consisted of the retracted police statements from the two perpetrators, with the phone call being "altogether too tenuous" to provide any relevant link. Critically, the objective circumstances of the robbery itself pointed away from the appellant's involvement: the perpetrators wasted considerable time searching for a safe on the wrong floor, and were unaware that the hotel manager carried a remote device capable of triggering a silent alarm at a nearby police station. Both of these facts were inconsistent with the appellant having given the detailed prior briefing alleged.
Spigelman CJ acknowledged that there are cases where prior statements implicating an accused may properly be acted upon even after the makers retract them, but concluded this was not such a case. The absence of any corroborating evidence, combined with the objective evidence pointing against the appellant's involvement, rendered the verdict unreasonable.
Orders Made
- Appeal allowed
- Verdict of acquittal entered
Key Takeaways
- A conviction will be unreasonable where the only inculpatory evidence consists of retracted statements from co-offenders and those statements are contradicted by the objective circumstances of the crime itself.
- Under s 6(1) of the Criminal Appeal Act 1912, applying the M v The Queen standard, an appellate court may enter a verdict of acquittal where a doubt it experiences is one the jury ought also to have had.
- Objective facts inconsistent with the alleged offending can be decisive: the perpetrators' evident ignorance of the safe's location and the silent alarm directly undermined the claim that an experienced insider had briefed them.
- Prior inconsistent statements by co-offenders who retract their accounts at trial are capable of supporting a conviction in some circumstances, but not where there is no corroborating evidence and the conduct of the offence itself tells against the accused's involvement.
- A 43-second phone call between mobile numbers with only indirect connections to the accused and one perpetrator was insufficient, on its own, to constitute meaningful objective evidence of involvement.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 137
Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606