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Court of Criminal Appeal 28 September 2018

Holmes v R

[2018] NSWCCA 211

Assault & violenceTheft & propertyPublic order & justice offences
APPEAL APPEAL AGAINST CONVICTION ROBBERY IN COMPANY CIRCUMSTANTIAL CASE ROBBERS CAUGHT ON CCTV CLOTHING NOT FOUND

Citation: Holmes v R [2018] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 28 September 2018
Judge(s): Basten JA; Beech-Jones J; Wilson J

Background

In April 2016, two masked men robbed a convenience store in Potts Point, assaulting the shop assistant and stealing cash and cigarettes. CCTV footage captured the robbers fleeing down a set of stairs toward Brougham Street. About 30 minutes later, police stopped the appellant and a juvenile companion near Woolloomooloo, approximately 280 metres from the appellant's unit on Brougham Street.

The next morning, police executed a search warrant on the appellant's unit and found eight EFTPOS merchant receipts (matching those taken from the cash register) and five packets of JPS Superkings cigarettes, the same brand stolen from the store. Two other people were present in the unit when police arrived, one believed to be the appellant's brother. The appellant's fingerprints were not found on the receipts.

The appellant was convicted by a jury in the District Court of robbery in company under s 97(1) of the Crimes Act 1900 (NSW) and sentenced to 18 months' non-parole period with a further 18-month balance of term. He appealed on the sole ground that the verdict was unreasonable and could not be supported by the evidence.

  • Whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was one of the robbers.
  • Whether the verdict was unreasonable and unsupportable having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400.

Decision

The Court of Criminal Appeal granted leave to appeal, set aside the conviction and sentence, and directed an acquittal. The Court applied the established test requiring it to make an independent assessment of the evidence and determine whether, on the whole of the evidence, a reasonable jury could have been satisfied of guilt beyond reasonable doubt.

Three categories of evidence were said to connect the appellant to the robbery. First, the cash found on his person ($460, comprised of $50 and $20 notes) was not incriminating once his bank records confirmed he had withdrawn $900 in pension funds on the day of the arrest. Second, the stolen cigarettes and EFTPOS receipts were found in his unit, but the prosecution did not establish that he was the sole occupant. Third, he was in the company of his co-detainee, whose own connection to the robbery the Court described as tenuous.

The Court also noted significant gaps in the prosecution case. The clothing depicted on the CCTV footage was never found, and the prosecution's hypothesis required the appellant to have returned home, completely changed clothes, removed all incriminating clothing from the unit, and then left again, all within approximately 30 minutes. While the stolen items were found in the apartment, the Court observed that other persons had access to the unit before and after the robbery.

Because the evidence was entirely circumstantial, the Court was required to consider whether a reasonable inference consistent with innocence remained open. It concluded that the prosecution had not excluded the reasonable possibility that persons other than the appellant had committed the robbery and later brought the cigarettes and receipts to his unit. Accordingly, the conviction could not stand.

Orders Made

  • Leave to appeal granted.
  • Conviction and sentence set aside.
  • Acquittal directed.

Key Takeaways

  • A conviction based on circumstantial evidence cannot stand where a reasonable inference consistent with innocence remains open on the whole of the evidence, even if some items linked to the offence were found at the accused's premises.
  • The Court of Criminal Appeal confirmed its obligation to conduct an independent assessment of the evidence rather than defer to the jury's verdict, particularly where no question arose about the jury having any advantage in seeing or hearing witnesses.
  • Presence of stolen goods at a residential address is not sufficient to establish guilt beyond reasonable doubt where sole occupation of those premises is not proven and other persons had access to the property.
  • Where the prosecution's hypothesis depends on a chain of undisputed steps (such as returning home, changing clothes, and concealing all incriminating items) without supporting evidence, the absence of that supporting evidence can be fatal to the Crown case.
  • Under the test in M v The Queen and SKA v The Queen, a circumstantial case must be assessed holistically, not by examining each piece of evidence in isolation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Dickson v R [2017] NSWCCA 78