Citation: R v Marshall; R v Barker; R v Fletcher [2012] NSWDC 223
Court: District Court of New South Wales
Date: 10 December 2012
Judge: Murrell SC DCJ
Background
Three accused, referred to here by their roles as the first, second, and third defendants, were jointly tried before a judge alone on a charge of robbery in company. The prosecution alleged that on 8 October 2011, the three men entered a grocery and roadhouse business in Kangaroo Valley at approximately 6.10am. They were masked and disguised, threatened the proprietor with a knife and metal bar, tied him to a chair, and removed cash and tobacco from an open safe.
The accused each pleaded not guilty after electing for a judge-alone trial, with their legal advice confirmed on the record. The prosecution built its case largely on circumstantial evidence, including telephone intercepts, mobile cell tower data, and evidence of conduct before and after the robbery. Each accused's case was considered separately, and some evidence was admitted against only one or two of the accused rather than all three.
The central dispute was not whether a robbery had occurred. All parties accepted that the proprietor was robbed by three men acting in company. The sole contested issue was whether the prosecution had proved beyond reasonable doubt that each of the three accused was among the men who entered the store.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that each accused was one of the three men who entered the Friendly Grocer.
- How to treat circumstantial evidence in determining guilt, including the standard that the established circumstances must exclude any other rational explanation.
- Whether lies made by an accused to family and others evidenced a consciousness of guilt, and what weight such evidence could bear in establishing participation in the robbery itself.
- How to apply the s 165 Evidence Act 1995 caution when assessing evidence from a witness who may have been criminally involved in the same events.
- How to separate and assess the evidence in a joint trial where different pieces of evidence were admitted against only some of the accused.
Decision
The court confirmed that the robbery itself was not in dispute. The three robbers acted as a joint criminal enterprise: they arrived together, entered together, threatened the proprietor together, and left together. Each was plainly "in company" with the others within the meaning of the charge, as each was present and available to assist, and the proprietor would have perceived them as acting in concert.
On the first defendant's case, the court found him guilty. Evidence admitted against him included telephone intercepts and evidence linking him to the theft of the white utility used in the robbery. The court treated his decision to give evidence like that of any other witness, applying no special standard, while noting he bore no onus of proof. His evidence was assessed critically, particularly as aspects of it could be considered inculpatory or exculpatory of the co-accused, attracting the caution required under s 165 of the Evidence Act 1995 in the co-accused trials.
On the second defendant's case, the court returned a verdict of not guilty. On the third defendant's case, the court also acquitted. The third defendant had made repeated statements to his partner and others that he had never been to Kangaroo Valley. The court rejected the submission that those statements were explained by embarrassment or a casual misstatement about merely driving through a town. Given the context of facing a robbery charge in Kangaroo Valley, the court found the statements were deliberate lies evidencing a consciousness of guilt.
However, the court drew a careful distinction between consciousness of guilt and proof of participation as one of the three robbers. The cell tower evidence placed the third defendant's phone connecting to the Kangaroo Valley tower at a relevant time, but calls made just before the robbery suggested he may not have been in the immediate company of the first and second defendants at that moment. The court concluded that an available rational inference existed: the third defendant may have been involved in the offence in some other capacity, rather than as one of the three men who entered the store. That residual rational inference meant the prosecution had not excluded all explanations other than participation as a robber, and so guilt was not established beyond reasonable doubt.
Orders Made
- First defendant (Marshall): Guilty
- Second defendant (Barker): Not guilty
- Third defendant (Fletcher): Not guilty
Key Takeaways
- In a circumstantial case, the prosecution must establish that the proven circumstances permit only one rational explanation: that the accused committed the offence. Where another rational inference remains available, guilt is not proved beyond reasonable doubt.
- Deliberate lies by an accused, told repeatedly and in context, can evidence a consciousness of guilt. The District Court found the third defendant's denials of ever having been to Kangaroo Valley were precisely that.
- Consciousness of guilt, even when clearly established, does not automatically prove the specific form of participation charged. The court distinguished between evidence connecting the third defendant to the robbery generally and proof that he was one of the three men who physically entered the store.
- Under s 165(1)(b) of the Evidence Act 1995, a court must apply caution when assessing evidence from a witness who may reasonably be supposed to have been criminally involved in the events giving rise to the proceedings, even where that witness is a co-accused giving evidence in a joint trial.
- In joint trials, evidence admitted against only one accused must not be used against the others. Murrell SC DCJ noted throughout the judgment which evidence was admitted on a limited basis, reinforcing the disciplined approach required to separate consideration of each accused's case.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 165, s 165(1)(b)
Cases
- R v Ray (2003) 57 NSWLR 616
- R v Sutton (1986) 5 NSWLR 697