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Court of Criminal Appeal 24 October 2012

Tuncbilek v R

[2012] NSWCCA 224

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION APPELLANT CONVICTED OF ARMED ROBBERY

Citation: Tuncbilek v R [2012] NSWCCA 224
Court: New South Wales Court of Criminal Appeal
Date: 24 October 2012
Judge(s): McClellan CJ at CL, Johnson J, Garling J (all agreeing)

Background

On 10 August 2009, three masked men armed with a sledgehammer, a crowbar and a handgun robbed the Greater Building Society at Lake Haven on the Central Coast, taking $37,000. A fourth man waited outside as getaway driver in a stolen silver Subaru sedan bearing stolen registration plates.

Eleven days later, police stopped a silver Subaru at Auburn. Inside the vehicle were a sledgehammer, a crowbar and a replica handgun. A balaclava and ski mask were found in a backpack belonging to the appellant. Two co-accused subsequently pleaded guilty to the Lake Haven robbery and related offences.

The appellant was tried separately in the District Court before Flannery DCJ. He pleaded guilty to three charges arising from the Auburn arrest but contested the armed robbery charges. After deliberations that required a second summing-up and a majority direction, the jury returned a unanimous guilty verdict on the Lake Haven armed robbery charge. He was sentenced to a total effective term of 6 years and 8 months, with a non-parole period of 4 years and 5 months.

  • Whether the trial judge failed to give the jury a proper direction about circumstantial evidence and the use of coincidence evidence
  • Whether it was inappropriate for the Crown not to lead biometric evidence measuring the height of individuals visible in CCTV footage
  • Whether the conviction was unreasonable or could not be supported having regard to all the evidence, under s 6(1) of the Criminal Appeal Act 1912

Decision

Jury directions. The Court of Criminal Appeal considered whether the trial judge's directions on circumstantial evidence and coincidence evidence were adequate. Garling J, with whom the other judges agreed, concluded that no error of the kind alleged was established and that this ground of appeal was not upheld.

Biometric height evidence. The appellant argued that the Crown's failure to lead evidence measuring the height of individuals shown in CCTV footage rendered the trial unfair or the conviction unsafe. The Court rejected this argument. The absence of such evidence did not constitute an error or impropriety; the jury was entitled to assess the visual evidence available to it.

Unreasonable verdict. The Court assessed the totality of the evidence against the appellant. That evidence included his presence in a vehicle containing the same type of weapons used in the robbery (sledgehammer, crowbar and replica handgun), the balaclava and ski mask in his backpack, mobile telephone records placing him in the Lake Haven area immediately before and after the robbery, and the use of a stolen silver Subaru with stolen plates on both occasions. Garling J described this as a "very strong case" and stated he had no doubt as to the appellant's guilt. Applying SKA v R and M v R, the Court found the verdict was neither unreasonable nor unsupported by the evidence.

Orders Made

  • Time for filing the application for leave to appeal extended to 23 March 2012
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the cumulative weight of circumstantial evidence, including matching weapons, vehicles, registration plate patterns, face coverings and mobile phone location data, was sufficient to support a unanimous guilty verdict for armed robbery.
  • A conviction is not rendered unreasonable merely because the Crown chose not to lead a particular type of expert evidence, such as biometric height measurement from CCTV footage, where other evidence adequately supported the verdict.
  • Under s 6(1) of the Criminal Appeal Act 1912, the test for an unreasonable verdict requires the appellate court to examine all the evidence and determine whether any reasonable jury, properly instructed, could have reached the verdict; the Court here found that standard was clearly met.
  • Where co-accused have pleaded guilty to the same offence, that fact forms part of the broader factual context the appellate court may consider when assessing the strength of the Crown case against a separately tried accused, although the conviction must stand on the evidence directed at that accused.
  • No error was established in the trial judge's directions on circumstantial or coincidence evidence where those directions were consistent with the applicable principles drawn from Morris v R and Wood v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 114(1)(a), 154A(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- M v R [1994] HCA 63; (1994) 181 CLR 487
- Morris v R [1987] HCA 50; (1987) 163 CLR 454
- SKA v R [2011] HCA 13; (2011) 243 CLR 400
- Wood v R [2012] NSWCCA 21