R v Main[2012] QCA 80

SUPREME COURT OF QUEENSLAND

1. CHESTERMAN JA: I agree with the orders proposed by Mullins J for the reasons given by her Honour.

2. MARGARET WILSON AJA: I agree with the orders proposed by Mullins J and with her Honour’s reasons for judgment.

3. MULLINS J:  Ms Main and her de facto partner Mr Fauid were convicted after trial before a jury of armed robbery in company of a bottleshop in Cairns.  Ms Main appeals against her conviction.  Mr Fauid appeals against his conviction and applies for leave to appeal against his sentence. 

Grounds of appeal

4. The grounds of appeal pursued on the appeal by both Ms Main and Mr Fauid were:

1. The trial judge failed to direct the jury at all with respect to the identification evidence.

2. The trial judge’s direction regarding the element of “being in company” was a misdirection.

3. The aggravating circumstance of “being in company” cannot be supported having regard to the evidence.

5. Mr Martin of Senior Counsel on behalf of the respondent conceded that directions given by the trial judge that were applicable to a co-offender for the purpose of s 7 of the Criminal Code 1899 (Qld) (Code) were insufficient in the present case for placing Mr Fauid in company with Ms Main or Ms Main in company with Mr Fauid during the robbery and that the part of each conviction relating to the circumstance of aggravation of being “in company” should be quashed.

6. The issue that was left to be argued on the appeal for each appellant was whether the learned trial judge should have given the jury a specific direction in respect of the identification evidence.

The evidence at trial

7. Apart from the record of interview of Ms Main that was admissible in the case against her alone and the record of interview of Mr Fauid that was admissible in the case against him alone, the evidence at the trial was relevant to the cases against both appellants.

8. On 26 November 2008 (which was three days before the robbery), Ms Main and Mr Fauid went to the bottleshop.  That visit was seen on CCTV footage that was played before the jury when the bottleshop manager Mr Maguire who was working that day was giving evidence.  He identified both Ms Main and Mr Fauid by photoboard.  They made no purchase on this occasion.  Mr Maguire had been working at the store for about eight to nine months at that stage.  He had seen Ms Main and Mr Fauid before in the bottleshop, when they looked around and on some occasions made a purchase, but on others did not make any purchase.

9. The events at the bottleshop on the evening of the robbery were recorded on CCTV footage. The CCTV recorded only when there was movement in the bottleshop and what was filmed was like a series of individual shots that played in an accelerated fashion, but the real time of each shot was shown on the footage.

10. At about 9.20 pm on 29 November 2008 Mr Fauid entered the bottleshop where a woman employee (the employee) was on duty alone. Mr Fauid asked her for some kind of drink and then said something about not having his wallet. He left and returned about five minutes later. When the employee asked him if he had found his wallet, he told her he had not, but that his girlfriend was coming down, and then he left the store. According to he CCTV footage, one minute 40 seconds elapsed between Mr Fauid leaving and the entry of the robber.

11. The CCTV footage of the robbery did not show the face of the robber. In evidence-in-chief the employee described the next person who entered the bottleshop after Mr Fauid left as:

“A person come all covered with big sunglasses and a black I think bag, and calmly they say to me, ‘Put the money in there’ and come next to me in here … with a knife.”

12. The employee stated that “I could only see their nose and their mouth and their chin,” because the person was covered with “a black thing … like a black and white square pattern, towel or blanket” and “big sunglasses.” The employee said that the person was wearing black clothing and that all she could see was the lower part of the face and the nose and that the skin was white. She described the features of the face as “a pointing long nose, thin lips and very tense – very tense.” The employee described the person holding a curved knife in the person’s hands and that it was curved at the end. The employee said that when the robber said to her “Put the money in – in the bag,” the robber moved close to the employee’s right side with the knife close to there and that the robber then said “Come here, open the till, bitch, open the till or I stab you.”

13. As the employee had used the pronoun “she” to refer to the robber when quoting what the robber said about opening the till, the employee was then asked whether the robber was female. Her answer was “the voice was a female voice.” When asked if there was anything else about the person that indicated the person’s gender, the employee responded “She had a way of talk – of – walking, the way of talking.” The employee was having difficulty opening the till, because she needed to use a password.  As the safe was not locked, the employee opened that instead of the till.  The employee observed the robber move to the other till and pulling her sleeve over her hand trying to open the drawers without leaving prints.  The employee put money from the safe into the robber’s bag.  There was around $1,600.  The robber left when the money was in the bag.  As soon as the robber left the shop, the employee locked the door and called the police.

14. The CCTV footage of Mr Fauid’s visits to the bottle shop on the evening of 29 November 2008 and the robbery were played during the course of the employee’s evidence in chief.

15. The cross-examination of the employee by counsel for Ms Main commenced with the following:

“Did you think the robber was wearing a mask at one time?-- I don't know that he was wearing a mask. I know that it was covered and it sunglasses or whatever it was were - were big and covering the eyes.

Alright. Do you remember talking to a police officer and raising the possibility the robber was wearing a mask as well?-- No, I don't remember exactly what it was, but I - I - there is a possibility it could be a mask because we've been training, that - when someone attack you, you don't go and stand looking like that ----- .”

16. The employee acknowledged that her first and second languages were Spanish and Italian and that English was her third language. She was then cross-examined on the photoboard that was produced to her by the police the day after the robbery. That photoboard identification was recorded on video. The employee made no positive identification, but focused on three photographs, one of which was of Ms Main. 

17. During cross-examination, it was suggested to the employee that at one stage she thought the robber was a man. Her response was:

“No, I can’t – couldn’t say a hundred per cent anything because everything is, you know, was very covered-----

… but it sound like a woman, voice like a woman, walk like a woman.”

18. The employee suggested that “Maybe one percent could be a man.” The employee confirmed that when she bumped the robber “It feel like a woman.” When it was suggested that she only thought that at the time that she and the robber bumped each other, the employee explained:

“Oh not because I bump, it’s because the whole thing – walks like a woman, talks with a voice, the voice is like a woman and the energy is not like the – a male energy with all this – when all this was happening.  It feels like a woman … And not a young woman.”

19. The employee conceded that there could have been a mask “but the mask would never change their – their – it was a slim face.” The employee conceded that the robber could have been a man or could be anything, “But my feeling is that it was a woman, white woman with a long pointy nose sitting … .”  The employee then stated that “It wasn’t a tall, tall woman … But; yeah, wasn’t very short.”  The employee explained that her height was 159 centimetres and that the robber “Was a little bit maybe taller than I.” 

20. The video recording of the viewing of the photoboard by the employee of the robbery was played before the jury during cross-examination. The video showed the employee making observations of the robber which were similar to those she said in her evidence during the trial. One difference, however, was in how she expressed the degree of certainty that she had about the robber being a woman. She said during the photoboard viewing:

“I wouldn’t even be sure if it’s a woman, but 90% sure because the voice – way of the walking.”

21. It was then suggested to the employee that what she had told the police was when she touched the robber on the “tit”, that was when she thought the robber was a woman.  The employee explained that she had used the word “also” when speaking to the police officers and conveyed that touching the robber was an additional reason for her thinking that the robber was a woman.

22. Ms Kirk who was 25 years old was a motorist who with her baby aged three months in the car drove past the bottleshop and was turning left into Callum Street when she saw someone (who she thought was a man) run out of the front doors of the bottleshop, wearing dark coloured clothing and holding a jacket that was black and white over his head with his right hand and something black in his left hand. Ms Kirk did not see the man’s face, but she thought he was about 160 centimetres to 170 centimetres tall, but it was hard to pick the height accurately, because he was holding the jacket over his head.  She saw the man run down the footpath of Callum Street.  Her vehicle was travelling at 40 to 50 kms per hour and the closest she got to the man was about five metres away.  There was a parked car in Callum Street facing away from the bottleshop.  The car had a slanty back window, but Ms Kirk did not notice its colour.  Ms Kirk drove past the parked car and turned left into Dunbar Street.  Until she turned into Dunbar Street, she had kept the man under observation for about five or six seconds.  He disappeared from view when he was in a dark area on the footpath near bushes, but she then saw him dart out from the dark area of the footpath and run around the front of the parked car to the driver’s side of the car.  She did not see him get into the car. 

23. Ms Kirk then did a u-turn in Dunbar Street intending to travel back to the bottleshop.  As she did that turn, a car passed her vehicle.  She then turned her vehicle back around and tried to follow it down Dunbar Street and saw it turn into Swallow Street and then Cochrane Street, but it was too far ahead and she lost sight of it.  Ms Kirk then drove back to Callum Street to return to the bottleshop and noticed the parked car in Callum Street had gone.  In her original statement Ms Kirk had described the parked car as “a silver coloured Charade type car,” although she had also observed that she did not know if it was a Charade make of car, but it was that shape and style with a slanty-type back window.  Ms Kirk concluded that the person she saw running from the bottleshop was a man from the way the person moved.

24. A neighbour who lived in the unit opposite to the appellants gave evidence that on the evening of 29 November 2008 around 10 pm or 11 pm, the appellants arrived home very noisily and parked a vehicle in one of the carports. The neighbour stated that Ms Main knocked on the door of the neighbour’s unit and asked her to “to ring her a cab for two to go to the city.” The neighbour observed that Ms Main was wearing a dark shirt and a pair of faded blue jeans with a hole in the knee (which was not what the robber wore). The neighbour telephoned for a cab and it arrived about five or six minutes later. The taxi driver who responded to the call gave evidence that he was allocated the job by the control centre at about 9.45 pm. He collected a man and a woman from the address and dropped them in Jensen Street. 

25. When the police attended at the appellants’ unit at about 10 am on 30 November 2008, there was nothing incriminating found in their unit, such as the jacket with the belt that the robber could be seen wearing in the CCTV footage. Detective Connors obtained the car keys from the unit and searched the car that was in the carport and had been hired by the appellants. It was a grey hatchback Toyota Corolla, although Ms Main described it in her interview as “silvery”. Detective Connors unlocked the car and searched it carefully and thoroughly. He did not find anything that connected the car to the robbery. A scenes of crime officer then took photographs of the car, including the interior of the car. Neither Detective Connors nor the scenes of crime officer saw any knife in the car.

26. Detective Sergeant Clark returned to the appellants’ unit on 1 December 2008 with the scenes of crime officer and, using the car keys, unlocked the car, so that the scenes of crime officer could perform a fingerprint examination of the car. The scenes of crime officer was not searching the vehicle, but conducting an examination for fingerprints and did not see any knife. She powdered the rear vision mirror for fingerprints and would have leaned over the centre console to do so. The car rental officer from the hire car business attended at the appellants’ unit on 2 December 2008 to pick up the car. He stated that the vehicle was unlocked. He checked it for damage and as he went to sit in the driver’s seat, he placed his hand on the seat to get himself into the seat and, as he looked down, he saw a blade sticking up from the side between the console and the seat. He described the blade as being located “beside the seatbelt buckle bit.” Mr Baira was attending the block of units at the same time and, as he was wearing rubber gloves, he went out to the car when the car rental officer found the knife and took the knife (which had a curved blade) from between the driver’s seat and the handbrake.  He noticed that the blade was facing forward.  The scenes of crime officer subsequently conducted a forensic examination of the knife and there were no identifiable fingerprints or DNA on the knife.

27. In the course of the record of interview, Ms Main who denied committing the robbery, stated:

“… but um John and I did um go to the um UI the UI bottle shop next to the IG on ah Moody Street there.  I I didn’t get out myself but John went in and he didn’t have his wallet on him and he came back out and had a look in the car and didn’t wasn’t in there and um he got back out cause he was meeting someone there or something and I went home to see if it was at home um but when I got back he just jumped in in the car and and that’s UI something I can’t remember.”

28. When Ms Main was questioned further about attending the bottle shop, she stated:

“Um John went to the bottle shop but he left his wallet behind somewhere and um couldn't find it and um I think he said he had to meet someone out there meet someone around there or something so that's why I went off and um cause I only live like 5 minutes around the corner UI his wallet was at home and then I got back and he just jumped in the car and we left. So I don't know whether he's UI who he was meeting there or not but um yeah when I got back he just jumped in the car and UI myself personally I didn't even go in the bottle shop.”

29. Ms Main estimated that she could not have been away any longer than 15 or 20 minutes to search for the wallet and return to pick Mr Fauid up from the footpath outside the shops where the bottleshop was situated.  Ms Main explained where she found Mr Fauid’s wallet at their home and repeated how she returned with it to the bottleshop, but by the time she got back, she did not see Mr Fauid with anyone, so she did not know whether he met up with his friend or not, and he jumped in the car and they left.  When Ms Main was asked about who Mr Fauid was going to meet, she responded that Mr Fauid did not talk to her about things and she did not ask questions.  Ms Main stated that after picking up Mr Fauid she drove the car to Jensen Street; they visited a friend, and then returned home for about five minutes before they went out.

30. Mr Fauid’s record of interview was much shorter than that given by Ms Main. He admitted to going to the bottleshop in the evening of 29 November 2008 to buy a bottle of Scotch, but he had left his wallet at home.  He returned to the car to look for his wallet.  He denied having anything to do with a robbery of the bottleshop.  His presence in the bottleshop immediately before the robbery was not challenged by defence counsel at trial.

The summing-up

31. The trial judge gave the standard directions on burden of proof and the standard of proof. The trial judge gave the usual direction in relation to the role of the jury in assessing a witness’ evidence for reliability and credibility. In explaining circumstantial evidence, the trial judge referred to the prosecution’s case against Ms Main that she was the one who did the robbery as circumstantial and the prosecution’s case against Mr Fauid that he “cased” the bottleshop before the robbery and was the lookout during the robbery as circumstantial, stating:

“In this particular case we know from what we have seen that someone went in there and someone robbed that place.  We also know that there is another person who is seen to go in who is also seen outside who, it is up to you whether you do or not, you may accept was the male accused.  There is no direct evidence, however, as to who the person was that actually perpetrated the robbery.  The prosecution case is that it was her for reasons that have been advanced, and the prosecution case is that what he was doing – to use [the prosecutor’s] words – was effectively casing the joint when he went in there and he was outside hanging around suspiciously; that he was acting as a lookout so that she could come in and effect the robbery presumably when no-one else was around.  That is the effect of the case that has been advanced against the two of them.

…

You’re being asked by the prosecution to look at all of the evidence and to draw the conclusion from that that:  one, it had to be her that went in there and robbed the place; and two, that it was him that was there and that he effectively cased the joint – and I’ll come to this in a bit more detail later – aided in the commission of the offence.”

32. The trial judge gave the appropriate warning for a verdict that was substantially based upon circumstantial evidence:

“Now, in this case a lot of witnesses have told us things that did happen, although it doesn't go as far, as I said, as those two particular critical matters that I just summarised. Now, in cases like that where the evidence is circumstantial, to bring in a verdict of guilty, and you're considering two matters again, I keep coming back to that, you're considering hers and his separately, to bring in a verdict of guilty based substantially upon circumstantial evidence it is necessary that guilt should not only be a rational inference, but it should be the only rational inference that can be drawn from the circumstances.

If there is any reasonable possibility consistent with innocence, it is your duty as you consider each matter to find the particular accused not guilty. Now, all of this flows from the requirement that guilt must be established beyond reasonable doubt. Well, it may help just to go back through that. When you consider the evidence in its entirety in this case, can you be satisfied that guilt in each case is the only rational inference that you can draw from the circumstances?

If there is any reasonable possibility consistent with innocence, then it is your duty to find them not guilty. If, however, you are satisfied that the only reasonable inference that can be drawn as you consider each case is that they did do what was alleged, then you must convict.”

33. After the trial judge explained the elements of the offence of armed robbery in company, the trial judge identified that the real issue in the case against Ms Main was whether she was the robber. The trial judge then explained s 7 of the Code and that the case against Mr Fauid was based on paragraphs (b) and (c) of s 7 of the Code on the basis that “he effectively cased the joint and kept a lookout.”

34. After analysing the elements of the case the prosecution had to prove against Mr Fauid on the basis that he was aiding the robber to commit the offence, the trial judge returned to the case against Ms Main:

“In relation to her the issue of course is essentially this:  was it her?  The argument is that it’s not. She has denied it.

I've explained to you what the elements of an offence of robbery are, but quite clearly in fairness to the way the case has been conducted, it has essentially come down to a question of whether or not you can be satisfied beyond reasonable doubt that she did it. Again, when you consider that what I said to you about circumstantial evidence becomes relevant.

Is it the case when you look at all of the evidence in this case you can be satisfied that the only rational conclusion you can draw from that evidence is that it was her, and that she did commit all of the elements of the offence that I've described to you beyond reasonable doubt, you must convict. If, when you consider it, you come to the conclusion that there may be a rational conclusion consistent with innocence, you must acquit.”

35. The summing up was then broken by the weekend. When the trial judge resumed the summing up on Monday morning, he reiterated that the jury had to give the case against each of Ms Main and Mr Fauid separate consideration and illustrated that they might not be satisfied beyond reasonable doubt that Ms Main committed the robbery, but they might be satisfied beyond reasonable doubt that Mr Fauid somehow aided an unknown person in the commission of the robbery.

36. After briefly summarising again the cases against each of Ms Main and Mr Fauid by reference to the elements of the offence, the trial judge reminded the jury that the case depended on circumstantial evidence and stated:

“Here, there's a whole variety of evidence which the prosecution say points to the fact that it was these two and that you would be satisfied that the only reasonable, rational inference that could be drawn from all of this is that they both committed the offence.

Now, as I explained to you that’s what you have to be satisfied of in both cases.  I’ve told you what the elements are of the offence and what you need to be satisfied of in relation to each person, but it essentially comes down to this:  When you’re deciding the case on circumstantial evidence, you can only convict if the only rational inference you could draw is one of guilt.  If there is any reasonable possibility consistent with innocence it is your duty to find them not guilty.  And again you’re dealing with separate considerations, I must stress that, one for each case.  If, however, you’re satisfied in each or one case, whatever, that the only reasonable rational inference that can be drawn is one of guilt, then your duty is to convict.” 

37. The trial judge then comprehensively summarised the closing arguments of counsel for Ms Main, counsel for Mr Fauid and the prosecutor. Relevantly, the trial judge repeated the arguments of counsel for Ms Main that pointed out the discrepancies in the observations made of the robber by the employee and Ms Kirk and the contents of the employee’s evidence, such as the reference to the robber wearing a mask, which may have raised doubts about the reliability of the observations made by the employee.

Submissions made on “identification evidence”

38. Although it is correct to say that the case against both appellants was an identification case in the sense that the identification of Ms Main as the robber was critical to both cases, the identification of her as the robber depended on circumstantial evidence, and the observations of the employee and Ms Kirk of characteristics of the robber was identification evidence that was relevant to the circumstantial case.

39. Based on Domican v The Queen (1992) 173 CLR 555 (Domican), the submission was made on behalf of Ms Main that it was essential that the trial judge in summing up gave some guidance to the jury on the dangers regarding the identification evidence from the employee that the robber was a woman, because if there were a reasonable doubt about that, the circumstantial case against Ms Main was weakened.  It was submitted that proof that the robber was a woman was an intermediate fact in the circumstantial case.  Because of the discrepancies in the evidence about the identification of the robber as a woman, the submission was made that it therefore followed the trial judge should have highlighted those discrepancies and the impact of them on the issue of whether the robber was a woman.

40. Counsel for Mr Fauid relied on the submissions made on behalf of Ms Main on the appeal as to identification evidence, as Mr Fauid’s guilt also depended on the proof that Ms Main was the robber.

41. The respondent submitted that the employee did not purport to make an identification of Ms Main as the robber, so that the circumstances for a Domican direction did not arise.  The respondent relied on the approach taken by the Court of Appeal in R v Finlay (2007) 178 A Crim R 373 (Finlay) which also involved identification evidence in the nature of the characteristics of the offenders, rather than direct identification, where there were discrepancies in the various descriptions of the offenders given by a number of witnesses, and where it was held at [47] that in the circumstances of that case it was “sufficient for the judge to point to the defence contentions about the deficiencies in the evidence, while emphasising, with the weight of his office, the importance of the jury’s being satisfied beyond reasonable doubt that the accused were the two men seen.” 

Whether a Domican direction was necessary

42. Although not determinative of the issue, both defence counsel at the trial did not seek a Domican direction. 

43. The rationale for a trial judge giving a specific warning about identification evidence which involves matters of fact was expressed in Domican at 561 as:

“Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.”

44. The circumstances for giving this specific direction and its contents were expressed in Domican at 561-562:

“Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.  The terms of the warning need not follow any particular formula.  But it must be cogent and effective.  It must be appropriate to the circumstances of the case.  Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’.  A warning in general terms is insufficient.  The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’.  Reference to counsel’s arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge’s office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”  (footnotes omitted)

45. The identification evidence in Domican purported to be identification of the defendant as the shooter by a witness who was present at the shooting.  Although there was circumstantial evidence that implicated the defendant as the shooter, it was pointed out in Domican at 566 that if the jury were not prepared to convict the defendant on that evidence, the evidence of the eyewitness identifying the defendant as the shooter would have been decisive and that required careful directions from the trial judge concerning the dangers of acting upon it.

46. The need for a trial judge to give a Domican direction where the identification evidence did not directly implicate the defendant as the person committing the crime was considered in Festa v The Queen (2001) 208 CLR 593 (Festa).

47. McHugh J referred in Festa to the difference between positive identification evidence and circumstantial identification evidence and stated at [57]:

“When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.” (footnotes omitted)

48. Hayne J in Festa at [217]-[218] cautioned that categorising identification evidence as positive identification evidence or circumstantial identification evidence should not obscure the purpose of a Domican direction and that whatever the category of identification evidence, where the reliability of the evidence is disputed, the duty of the judge is to draw the jury’s attention in every such case as to how and why the evidence may not be reliable.  Hayne J then stated at [219]:

“Of course, what is required will depend on the nature of the evidence that is given. If a witness says it was the accused that was seen, every element of the Domican direction will ordinarily be required. If, at the other end of the spectrum, the evidence is no more than ‘I saw a man wearing a red shirt’ little more may be needed than to point to whatever difficulties the defence asserts that the witness may have had in observing and accurately recollecting the event. In this regard, as in every other aspect of a trial judge's charge to the jury, the content of the directions must be moulded with due regard to the issues at trial; they are not to be a mere recitation of general propositions derived from decided cases.” 

49. Finlay is an example of a case where the identification evidence was of such a nature that the Domican direction was not required.  This was confirmed in the refusal of the High Court to grant special leave to appeal in Finlay v The Queen [2009] HCATrans 17, where Hayne J on behalf of the court stated at p 7:

“The applicant seeks special leave to appeal to this Court to argue that the directions given at his trial did not warn the jury that it would be dangerous to convict the applicant without close scrutiny of specific aspects of evidence given by eyewitnesses describing the offender.  The particular aspects of their evidence requiring such scrutiny were not identified in argument, whether in this Court or in the courts below.  Although witnesses gave evidence describing the man they saw at or near the scene of the crime, no witness purported to identify the applicant as the offender.

There was no occasion in this case to give a direction of the kind described in Domican v The Queen (1992) 173 CLR 555 at 561 to 562.  We are not persuaded that it is in the interests of justice generally or in this particular case that there be a grant of special leave to appeal.”

50. It over analyses the jury’s task in this matter to suggest it was a two-stage process: first, satisfaction beyond reasonable doubt that the robber was a woman, and second, satisfaction that the robber was, in fact, Ms Main. The prosecution case was the robber was Ms Main. If the jurors were satisfied beyond reasonable doubt that the only rational inference from the evidence they accepted was that Ms Main was the robber, it followed that Ms Main was guilty of armed robbery. It is artificial to quarantine parts of the evidence for staged reasoning on whether the robber was a woman, when the ultimate question was whether the robber was Ms Main.

51. It was a question of fact for the jury how they resolved the discrepancy between Ms Kirk’s evidence and that of the employee about the gender and other characteristics of the robber.  The overall effect of the employee’s evidence, if it was accepted, was that she was firm the robber was a woman from the way the robber walked, talked and felt, when the employee accidentally touched her.  The difference between the employee saying the day after the robbery that she was 90 per cent certain the robber was a woman and with her saying during the trial she was 99 per cent certain that the robber was a woman is not one that necessarily undermined her reliability, as 90 per cent certainty was indicative of a very firm view held by the witness.  In comparison, Ms Kirk’s observations of the robber were from some distance. 

52. Unlike in Domican where if the jury had rejected other evidence implicating the defendant, the evidence of the eyewitness became decisive, there was uncontroverted evidence that Ms Main and Mr Fauid were in a relationship and had driven to the bottleshop on the night of the robbery and that they were both in the vicinity of the bottleshop around the time of the robbery.  A curved knife was used by the robber and a curved knife was found in the appellants’ hired car between the driver’s seat and the console three days after the robbery.  Although the weight of the evidence of the finding of the curved knife was diminished either by the failure of the police to locate that knife when the vehicle was first searched on 30 November 2008 (if it were there) or that it was not in the car until 2 December 2008, it was still part of the circumstantial case against the appellants that a curved knife was found in their car three days after the robbery. 

53. The type of evidence of identification of characteristics of the robber in this case is comparable to that in Finlay.  The trial judge made it very clear to the jury that the circumstantial cases against both Ms Main and Mr Fauid depended on the jury being satisfied beyond reasonable doubt that the robber was Ms Main.  When the clear identification by the trial judge of the real issue in the trial was taken in conjunction with the trial judge’s repetition of the arguments of counsel in respect of the reliability of the employee’s observations of the robber, a direction based on Domican was not essential. 

54. The appellants therefore do not succeed on their ground of appeal based on a failure of the trial judge to direct the jury with respect to the identification evidence.

55. In each appeal, the appeal against conviction should be allowed to the extent only of quashing the circumstance of aggravation of “in company”, and otherwise the appeal against conviction should be dismissed.

Whether sentence imposed on Mr Fauid was manifestly excessive

56. Mr Fauid was sentenced to five and one-half years’ imprisonment with parole eligibility ultimately fixed at 4 August 2013 to take account of 153 days spent in pre-sentence custody between 9 April and 3 September 2009 and between 14 and 18 September 2009.  The parole eligibility date was approximately at the half way mark of the sentence that was imposed by the trial judge.

57. Mr Fauid was born in 1972. He was 36 years old at the time of the offence and 39 years old when he was sentenced.  He has a lengthy criminal history that commenced in 1989 that mainly consists of property, drug and public disorder offences.  He has a limited history for offences of violence and no convictions for robbery prior to being sentenced for the subject offence.

58. At the time of sentencing, Mr Fauid was serving a period of imprisonment of nine months and seven days for sentences that had been imposed in the Magistrates Court and commenced on 15 September 2010 where court ordered parole was given on 15 November 2010, but parole was suspended and Mr Fauid returned to custody.  The sentence for the armed robbery was concurrent with the period of imprisonment being served when Mr Fauid was sentenced.

59. Ms Main is 10 years older than Mr Fauid and had a more serious criminal history, including a prior conviction for armed robbery: R v Main [1999] QCA 327.  But for her serious health problem arising from a back injury sustained in a fall in 2004, the trial judge would have sentenced Ms Main to seven years’ imprisonment.  Instead she was sentenced to six years’ imprisonment with a parole eligibility date fixed after serving three years of the sentence. 

60. According to the sentencing remarks, the trial judge generally took into account that there was a degree of planning involved in the robbery, the employee was in an extremely vulnerable position in working on her own at night, and the use of a knife was “deplorable”. In relation to Mr Fauid, the trial judge took into account his prior criminal history, but noted that there was neither a previous conviction for armed robbery nor a lengthy history of violence. The trial judge noted Mr Fauid’s drug dependency. The trial judge stated expressly that he was able to deal with Mr Fauid “slightly more leniently,” because Mr Fauid did not have a prior conviction for armed robbery.

61. It was argued on behalf of Mr Fauid that quashing the conviction for the aggravating circumstance of being in company removed one of the aggravating factors for the sentence and that the trial judge had otherwise failed to take into account Mr Fauid’s lesser role in the robbery in conducting a reconnaissance of the bottleshop and performing the role of the lookout as the robbery took place. Reliance was placed on the observation of the Court of Appeal in R v Vanderwerff [1999] QCA 169 at p 4 to the effect that a person who acts only as a driver for those who carry out an armed robbery is usually sentenced more leniently than the actual perpetrators.  It was submitted that the objective seriousness of the offence warranted a sentence of imprisonment between three years and five years, in reliance on R v Moss [1999] QCA 426 (Moss).

62. It was argued on behalf of the respondent that the removal of the “in company” circumstance of aggravation did not affect the maximum penalty applicable to the offence and it did not necessarily follow that the sentence should be altered: Lacco v State of Western Australia [2006] WASCA 152 at [46] and [55].  It was submitted that the criminality of Mr Fauid was greater than the offender in Moss and the range of sentence appropriate for Mr Fauid’s offending was imprisonment of between five years and seven years, so that the sentence that was imposed was therefore a sound exercise of the sentencing discretion.

63. The quashing of the circumstance of aggravation of being in company does not affect the factual circumstances of the robbery. Although Mr Fauid was not inside the bottleshop as the robbery was committed, it was open to the trial judge on the evidence to sentence him on the basis that he was involved in the planning and execution of the robbery, because of his attendance at the botttleshop three days prior to the robbery, his presence in the bottleshop immediately before the robbery, and his role as the lookout while the robbery was committed. The observations that the trial judge made generally in his sentencing remarks about the degree of planning, the vulnerable position of the employee and the use of the knife in the robbery were equally applicable to Mr Fauid, because of his involvement in the planning and the support that he provided to Ms Main by his presence outside the bottleshop to allow her to commit the robbery. The only issue on the sentence application is therefore whether the sentence imposed on Mr Fauid was manifestly excessive.

64. The offender in Moss was 18 years old when he committed an unsophisticated and unplanned robbery of a video store threatening the complainant who was working alone in the store with a knife.  He took $450 from the till.  He pleaded guilty to an ex officio indictment.  He had a considerable prior criminal history, mostly committed when he was a juvenile, and was on probation at the time he committed the offence.  In the course of giving the leading judgment, McPherson JA stated at p 6:

“The problem is, however, that the offence here is a serious one.  It carries a maximum of life imprisonment and comparable sentences to which we have been referred, or to which we have access, suggest a range for a first offence of this kind that is ordinarily between about three and five years.”

The appeal in Moss was successful and the head sentence was reduced from six years’ imprisonment to five years’ imprisonment.

65. Although Mr Fauid was not the actual robber, he had a close and significant involvement in the carrying out of the robbery. His criminality was not much less than that of Ms Main: cf R v Kitching [2003] QCA 539 at p 6.  Although this was his first offence of this type, he did not have the benefit of youth or lack of prior criminal history.  That allowed the range endorsed in Moss for a first offence to be distinguished in the sentencing of Mr Fauid.  The sentence of imprisonment of five and one-half years was not outside the sentencing range appropriate to both the circumstances of Mr Fauid’s offending and his personal circumstances.

66. Mr Fauid’s application for leave to appeal against sentence should be refused.

Orders

67. The following orders should be made:

In CA No 88 of 2011:

1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2. Appeal against conviction otherwise dismissed.

In CA No 93 of 2011:

1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2. Appeal against conviction otherwise dismissed.

3. Application for leave to appeal against sentence refused.