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11
Court of Criminal Appeal 8 June 2011

Raumakita v R

[2011] NSWCCA 126

Also reported as (2011) 210 A Crim R 326
Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL ARMED ROBBERY CROWN RELIED UPON COINCIDENCE EVIDENCE RELEVANCE OF ACQUITTAL ON THIRD COUNT VERDICTS NOT INCONSISTENT

Citation: Raumakita v R [2011] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 8 June 2011
Judges: Macfarlan JA, Johnson J, Garling J

Background

The appellant was tried in the Parramatta District Court on four counts arising from three separate armed robberies in August and September 2007, targeting a motel, a TAB, and a bowling club. All three robberies involved offenders wearing balaclavas and carrying weapons including a distinctive red axe. The appellant was convicted on the first count (the motel robbery) and the second count (the TAB robbery), but acquitted on the third and fourth counts relating to the bowling club.

The Crown's case at trial relied heavily on coincidence evidence: it argued that the strong similarities between the robberies, particularly between the first and second counts, supported an inference that the same person committed them. Forensic evidence connecting the appellant to the second count included DNA on a smashed door and on a glove found in a backpack, along with fingerprints on items stolen in that robbery.

The appellant challenged only his conviction on the first count, arguing that the guilty verdict was unreasonable and unsupported by the evidence, particularly in light of his acquittal on the third count. He did not seek leave to appeal against sentence.

  • Whether the verdict of guilty on the first count was unreasonable or could not be supported by the evidence, having regard to the acquittals on the third and fourth counts.
  • Whether the coincidence evidence was sufficient to establish guilt on the first count.
  • Whether the jury's acquittal on the third count rendered the conviction on the first count inconsistent.
  • As a secondary matter, whether an alleged post-trial admission by the appellant had any relevance to the proviso under s 6(1), or an order for retrial under s 8, of the Criminal Appeal Act 1912.

Decision

Johnson J (with whom Macfarlan JA and Garling J agreed) dismissed the appeal. The court found that the guilty verdict on the first count was not unreasonable and was supported by the evidence. The acquittal on the third count did not render the first count verdict inconsistent or impermissible.

The court noted that the third count robbery differed from the first in several respects: there was no CCTV footage, the methods of entry differed, and witness descriptions of the offenders' accents and appearance diverged from the other two robberies. The jury was therefore entitled to treat the third count differently. The acquittal on the third count did not undermine the conviction on the first, because it was open to the jury on the evidence to distinguish between the counts.

The strong forensic evidence connecting the appellant to the second count, combined with the marked similarities between the first and second counts, provided a rational basis for the jury to rely on the coincidence evidence and convict on count one. The court applied the test from M v The Queen (1994) and SKA v The Queen (2011): whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The court found it plainly was.

On the secondary issue of the alleged post-trial admission, Johnson J set out the legal framework in detail but ultimately found it unnecessary to resolve, because the appellant had not established any miscarriage of justice at trial. The court left open whether a post-acquittal or post-trial admission could bear on the exercise of the court's powers under ss 6 and 8 of the Criminal Appeal Act 1912, noting that question would be for another case.

Orders Made

  • Leave to appeal against conviction granted under s 5(1) Criminal Appeal Act 1912.
  • Appeal dismissed.

Key Takeaways

  • A conviction on one count is not automatically rendered unreasonable by an acquittal on a related count where the evidence across the counts is meaningfully different. The jury is entitled to distinguish between counts on the basis of differing evidence.
  • Where the Crown relies on coincidence evidence, a jury's acquittal on one count does not necessarily destroy the probative force of similarity evidence linking the remaining counts, particularly where the acquitted count is distinguishable on the facts.
  • The Court of Criminal Appeal confirmed the applicable test: a verdict is unreasonable only if it was not open to a reasonable jury, properly instructed, to be satisfied of guilt beyond reasonable doubt, applying the principles in M v The Queen (1994) 181 CLR 487 and SKA v The Queen [2011] HCA 13.
  • No error was established by the appellant's argument that the acquittals on counts three and four were inconsistent with the guilty verdict on count one. The verdicts were explicable by reference to the differing evidence across the counts.
  • The court expressly declined to resolve whether an alleged post-trial admission by a convicted person could be relevant to the s 6(1) proviso or to an order for retrial under s 8 of the Criminal Appeal Act 1912, leaving that question open for a future case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8
- Crimes (Appeal and Review) Act 2001 (NSW), ss 99-107

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 85 ALJR 571
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- The Queen v Hillier [2007] HCA 13; 228 CLR 618
- Morris v The Queen [1987] HCA 50; 163 CLR 454
- The Queen v Nguyen [2010] HCA 38; 85 ALJR 8
- The Queen v Keenan [2009] HCA 1; 236 CLR 397
- The Queen v Carroll [2002] HCA 55; 213 CLR 635
- R v TK [2009] NSWCCA 151; 74 NSWLR 299
- Rasic v R [2009] NSWCCA 202
- Dungay v R; R v Dungay [2010] NSWCCA 82
- Still v R [2010] NSWCCA 131
- Storey v The Queen [1978] HCA 39; 140 CLR 364
- R v De-Cressac (1985) 1 NSWLR 381
- R v McCarthy and Ryan (1993) 71 A Crim R 395
- R v Gudgeon (1995) 83 A Crim R 228
- R v Bikic [2001] NSWCCA 537
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- Siganto v The Queen [1998] HCA 74; 194 CLR 656