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Court of Criminal Appeal 27 April 2012

Alameddine v R

[2012] NSWCCA 63

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE CONVICTION FOR ARMED ROBBERY EVIDENCE CLOTHING DNA TIME DISCONNECT

Citation: Alameddine v R [2012] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 27 April 2012
Judges: McClellan CJ at CL, Johnson J, Grove AJ (judgment delivered by Grove AJ)

Background

The appellant was convicted in the Parramatta District Court on two counts of aggravated armed robbery following a 2008 robbery of two Armaguard security officers outside a Coles supermarket at Guildford. Over $140,000 in cash and two loaded firearms were taken. The central issue at trial was whether the appellant was one of the two masked men who alighted from a stolen red Nissan Pulsar to carry out the robbery.

The prosecution relied on a circumstantial case. Key items included CCTV footage, DNA matching the appellant found on the interior door handle of the stolen getaway car, a white hooded jacket bearing the appellant's DNA seized from his sister's home some five and a half months after the robbery, and a single .38 calibre cartridge consistent with Armaguard-issued ammunition found locked in a safe at the same address. The appellant's brother, who owned a white Honda Euro seen near the scene, had already pleaded guilty to offences connected with the robbery by the time of the appellant's trial.

The appellant was sentenced to ten years imprisonment with a non-parole period of seven years. He appealed on four grounds, challenging the admissibility of the items found at his sister's home, the adequacy of the trial judge's direction regarding one item of evidence, the trial judge's failure to answer a question from the jury, and whether the verdict was unreasonable.

  • Whether the trial judge erred in failing to exclude the clothing, cartridge, and telephone accounts found at the appellant's sister's house, on the basis that this evidence could not rationally bear on the identity of the appellant as an offender
  • Whether the trial judge erred in directing the jury that the hooded jacket found at the sister's address was the same jacket worn by offender A during the robbery, when this was not properly established on the evidence
  • Whether the trial judge erred in failing to answer a question from the jury during deliberations
  • Whether the verdict was unreasonable or unsupported by the evidence

Decision

Ground 1: Admissibility of items found at the sister's address. The Court found that the telephone accounts found at the sister's home could not rationally bear on the identity of the appellant as an offender and should not have been admitted for that purpose. The cartridge posed a more significant problem. The Court found that the prosecution had failed to establish a sufficient nexus between the appellant and the cartridge: it was found locked in a safe that the appellant's brother-in-law controlled, the brother-in-law claimed he had found it in the country after Christmas 2008, and the Armaguard witness acknowledged there had been other incidents during 2008 in which green-coded ammunition could have been dispersed. The cartridge was therefore incapable of inculpating the appellant and ought to have been excluded. The hooded jacket, by contrast, was properly admitted given the DNA evidence linking it to the appellant.

Ground 2: Direction regarding the hooded jacket. The trial judge directed the jury that the jacket found at the sister's home was the same jacket worn during the robbery, but the evidence did not properly support that conclusion. The CCTV footage showed a robber wearing a white hooded jacket, and a jacket bearing the appellant's DNA was found months later, but no expert or other evidence formally identified them as the same garment. The Court found this direction constituted a misdirection and upheld this ground.

Ground 3: Failure to answer the jury's question. During deliberations, the jury asked a question about a specific aspect of the evidence. The trial judge failed to answer it. The Court held this was an error, as trial judges are obliged to respond to questions from juries: failing to do so denies the jury guidance on matters they have specifically identified as requiring clarification.

Ground 4: Unreasonable verdict. The Court rejected this ground. Notwithstanding the errors identified, the DNA evidence placing the appellant's profile on the interior door handle of the getaway car, along with the surrounding circumstances of the theft and use of that vehicle, was assessed as factually capable of supporting a guilty verdict. The Court was not satisfied that it would be dangerous to allow the verdict to stand on the basis of this evidence alone. However, because grounds 1, 2, and 3 were upheld, a new trial was required.

Orders Made

  • Appeal allowed
  • Convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • A piece of circumstantial evidence must be capable of rationally bearing on the fact in issue before it is admissible; where the prosecution cannot establish a sufficient nexus between the accused and the item, the evidence does not meet that threshold.
  • The Court of Criminal Appeal confirmed that directing a jury to treat two separate items as identical, without evidentiary foundation for that conclusion, constitutes a misdirection capable of vitiating a conviction.
  • Failing to answer a question from the jury during deliberations is an error; the trial judge's obligation to assist the jury extends to responding to questions the jury itself has raised.
  • Where multiple grounds of appeal are upheld but the verdict is not separately found to be unreasonable, the appropriate remedy is a new trial rather than an acquittal.
  • DNA evidence alone, placed in its proper factual context (here, the appellant's DNA on the door handle of the getaway vehicle by which the principal offender entered and exited), can be factually sufficient to sustain a verdict, even where other parts of the prosecution's circumstantial case are flawed.

Legislation and Cases Referenced

Legislation
- Evidence Act
- Jury Act

Cases
- Black v The Queen (1993) 179 CLR 44
- Chahine v R [2006] NSWCCA 179
- Chidiac v The Queen (1991) 71 CLR 432
- Halmi v R [2008] NSWCCA 259
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Mahmood v State of Western Australia (2008) 232 CLR 397
- Morris v The Queen (1987) 163 CLR 454
- Phillips v The Queen (2005) 225 CLR 303
- R v Hickey (2002) 137 A Crim R 62
- R v McCormack (1986) 85 A Crim R 445
- R v Salama [1999] NSWCCA 105
- Ratten v The Queen (1974) 131 CLR 510
- SKA v The Queen (2011) 243 CLR 400
- Smith v The Queen (2001) 206 CLR 650
- Stubley v Western Australia (2011) 85 ALJR 435
- The Queen v Chamberlain (No 2) (1984) 153 CLR 521