Citation: R v Faumuina [2024] NSWDC 189
Court: District Court of New South Wales
Date: 24 May 2024
Judge: Newlinds SC DCJ
Background
On the night of 23 May 2022, a group of men carried out a series of violent offences south of Sydney. The group broke into a Shell Cove home, stole car keys and a Ford Ranger utility, then drove north to Cronulla where they committed a more serious home invasion: a pistol was used, a resident was detained, and two luxury vehicles were stolen.
The accused was charged alongside two co-offenders, Isiah Lewis and Hunter Papa, both of whom pleaded guilty and were sentenced for their roles in these events. The accused pleaded not guilty to all seven charges, which included special aggravated break and enter, robbery in company, detention with intent to obtain advantage, and take-and-drive offences.
The matter proceeded as a judge-alone trial. It was not disputed that the underlying crimes occurred, nor that Lewis, Papa and at least one other person committed them as part of a joint criminal enterprise. The sole question for the court was whether the accused was a party to that enterprise.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused was a participant in the joint criminal enterprise responsible for the Shell Cove and Cronulla offences.
- How the rules governing circumstantial evidence applied, particularly the standard of proof required for "essential intermediate facts" in a chain of inference (following Shepherd v The Queen (1990) 170 CLR 573).
- Whether a third circumstance relied upon by the Crown was itself an essential intermediate fact requiring proof beyond reasonable doubt.
- Whether the accused could be found guilty of the Count 7 take-and-drive offence, which required proof that he personally drove the vehicle rather than proof of participation in a joint enterprise.
Decision
The case against the accused was entirely circumstantial. Both parties agreed that two of the Crown's factual building blocks were "essential intermediate facts," meaning that each had to be established beyond reasonable doubt before the overall inference of guilt could rationally be drawn. The parties disputed whether a third circumstance carried the same status.
His Honour found that the Crown had not proved two of the essential intermediate facts to the required standard. One concerned the identification of the accused through mobile phone evidence. While Cellebrite data from several phones was tendered, the evidence showed that multiple people had access to the relevant device, including at least one brother of the accused's partner. The phone was registered to a person believed to be the accused's father, but that person was never interviewed by investigators and was not called by the Crown. Applying the principle from Mahmood v Western Australia (2008) 232 CLR 397, the failure to call or pursue that witness carried significance. His Honour was not satisfied beyond reasonable doubt that the phone was attributable to the accused.
A related issue concerned the accused's alleged nickname "Hamo" or "Hamodon," which appeared in phone records. His Honour accepted there was sufficient evidence to find it probable that the accused used that name, but probability does not meet the criminal standard of proof. It remained possible that another person also used the name, and that possibility was not excluded to the requisite standard.
Because the Crown could not establish those two essential intermediate facts to the criminal standard, the chain of inference necessary to prove the accused's participation in the joint criminal enterprise could not be completed. His Honour was therefore required to acquit on all counts. As for Count 7, the Crown conceded during final submissions that the accused had not been proved to be the driver of the relevant vehicle. Because that charge rested on personal driving rather than joint enterprise, the Crown appropriately accepted a directed verdict of not guilty.
Orders Made
- The accused found not guilty on Counts 1 to 6 on the indictment.
- The accused found not guilty on Count 7 on the indictment, following a directed verdict.
Key Takeaways
- In a circumstantial case involving a chain of inference, "essential intermediate facts" must each be proved beyond reasonable doubt before the final inference of guilt can properly be drawn, consistent with Shepherd v The Queen (1990) 170 CLR 573.
- A finding that a fact is merely probable does not satisfy the criminal standard. His Honour's analysis of the nickname evidence illustrates the distinction between a court being satisfied something "probably" occurred and being satisfied of it beyond reasonable doubt.
- Where investigators fail to interview or call a person whose evidence is potentially relevant to identification, the Mahmood direction may carry real weight in a judge-alone trial.
- Mobile phone attribution evidence, including Cellebrite data and registered user information, can fall short of proof beyond reasonable doubt where the evidence also discloses that multiple persons had access to the device.
- A take-and-drive charge under s 154A of the Crimes Act 1900 requires proof that the accused personally drove the vehicle. It does not extend to participants in a joint enterprise who did not drive, and the Crown correctly conceded this point.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1), 112(2), 112(3), 154(1)(a), 154A(1)(b)
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), s 191
- Firearms Act 1996 (NSW)
Cases
- D'Agostino v Regina [2019] NSWCCA 259
- Fleming v The Queen (1998) 197 CLR 250
- Mahmood v Western Australia (2008) 232 CLR 397
- R v Davidson (2009) 75 NSWLR 150
- Shepherd v The Queen (1990) 170 CLR 573