R v Reynolds[2013] QCA 338

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I have read the reasons for judgment of Morrison JA and am indebted to him for his setting out of the facts.  I agree with what his Honour has said as to the importance of a direction on circumstantial evidence in this case.  However, I differ from his view as to whether the evidence was sufficient to sustain a conviction.

2. The Crown case was put squarely and solely on the basis that the appellant was culpable as an aider under s 7(b) of the Criminal Code.  There was no suggestion that he should be held criminally liable as an accessory after the fact.  It was essential that the prosecution prove beyond reasonable doubt that the appellant knew that Hansen meant to burgle a dwelling and aided him in doing so.  His waiting in the car and his driving it away were acts capable of constituting the aiding.  As to the necessary state of knowledge, the Crown could only invite the drawing of an inference from what was established of the appellant’s conduct before and after Hansen committed the offence; but, as Morrison JA has indicated, there were competing inferences.

3. The factors on which the Crown relied as supporting an inference of guilt were:

1. the appellant’s willingness to be driven around by Hansen in the early hours of the morning;

2. the fact that at 5 am Hansen parked the car a distance of some 50 metres from the complainant’s house;

3. the appellant’s preparedness to get into the driver’s seat on Hansen’s instruction, ready to assume the role of driver;

4. the implausibility of his not seeing Hansen wearing a balaclava and armed with a bar;

5. his reaction of starting the car once he heard Hansen yelling;

6. his conduct in driving from the scene once Hansen returned, with balaclava and bar;

7. his remaining in Hansen’s company, with the reward of drugs; and

8. his drug addiction as a motive for offending.

4. The jury was entitled to reject the exculpatory parts of the appellant’s interview and act only on the inculpatory passages. But the fact that they rejected parts of what the appellant said because, for example, it was inconsistent with the complainant’s description of events, or because they found it inherently improbable, could not actually advance the Crown case. It was not suggested that there was anything in the way of an Edwards^[1] lie to demonstrate a consciousness of guilt.  And although the jury might not, as a general proposition, regard the appellant as a witness of credit, they had still to consider whether the Crown had excluded all reasonable hypotheses consistent with innocence.

5. The hypothesis raised by the appellant in his interview was that he and Hansen were giving the latter’s car a test run after working on it all night. When Hansen pulled over and asked him to drive, he was not aware that Hansen intended to commit any crime, and formed no suspicion of anything untoward occurring until he heard Hansen yelling. His response of driving away at speed was the result of fear of what Hansen might have done. An obvious variant on that hypothesis, given the background, is that the excursion was not an innocent one, but, from the appellant’s perspective, was carried out in the hope of procuring drugs: an illegal activity, but not one necessarily involving a burglary.

6. Of the points made for the Crown and enumerated above, those numbered 1, 2, 3, 7 and 8 would be consistent with a scenario in which the appellant expected Hansen to try and obtain drugs, and took the instruction to be ready to drive as reflecting some concern about the safety of the enterprise. Points 5 and 6 are consistent with the appellant’s claim that he was alarmed by the sound of Hansen yelling and responded accordingly.

7. The only one of the Crown indicia which would unequivocally point away from that scenario to one in which the appellant should have known that Hansen planned a burglary is what is described as the implausibility of his not seeing Hansen in a balaclava and holding a bar.  But the inference that the appellant saw Hansen with those items cannot, in my view, be safely drawn; although it might have been, had they been travelling in a sedan.  The vehicle was a utility.  It was quite possible that Hansen retrieved the balaclava and bar from its tray unknown to the appellant, before the latter got out of the vehicle and walked around its rear to see Hansen already walking away.

8. I do not, with respect, think that there is anything in the complainant’s evidence which would assist the jury in drawing one inference rather than another. She said that as she “flew down the road to go to the cop shop”, Hansen’s vehicle was reversing out of a driveway about half a football field length from her property. If that account was right, it provided less support for the Crown’s case than did the appellant’s version: that the vehicle had already been turned and was facing back the way it had come; in position for a quick getaway. When the complainant initially referred to seeing the vehicle reversing out of the driveway, she said that in it were Hansen and “another driver”. When she subsequently spoke of seeing Hansen and “the other driver” in the car, she may simply have been referring back to her earlier term for the second man, rather than meaning to indicate the appellant was then the driver.

9. More to the point, even if it were to be concluded in each of those instances that the complainant’s evidence did conflict with the appellant’s account in his interview, so that what he said was to be rejected, it would not assist the Crown in proving what the appellant’s state of mind was when he waited in the car for Hansen or, as was necessary, in excluding beyond reasonable doubt all reasonable hypotheses other than guilt. Accepting in its entirety the complainant’s evidence of what the appellant did by way of driving away, it is at least as consistent with a concern, having heard yelling, that Hansen had done something dangerous or criminal as it is with foreknowledge of a burglary.

10. In my view, it is entirely possible, perhaps probable, that the appellant was sitting in the driver’s seat of the car waiting to drive Hansen away at speed because he knew that Hansen had walked away with the intent of committing burglary. But nothing makes that inference inevitable. It is also rationally possible that he was in that position under the impression that Hansen had gone to buy drugs or, alternatively, that he was simply not sufficiently alert to consider the matter. Events thereafter were equally consistent with the conduct of someone aware, after the event, that an offence had taken place. The Crown could not, on the limited evidence it had, exclude hypotheses in which the appellant would be innocent; or, at any rate, innocent of aiding a burglary.

11. I would allow the appeal, quash the conviction and enter a verdict of acquittal.

12. MORRISON JA:  The appellant, Robert John Reynolds, has appealed from his conviction on 20 March 2013 for the following offence: that he entered a dwelling with intent to commit an indictable offence in the dwelling, the entry was by means of a break, the offence was committed at night, while armed with an offensive weapon.  The appellant had entered a plea of not guilty and was convicted after a two day trial.

The nature of the alleged offence

13. The case against the appellant was that he was a party to the offences on the basis of s 7 of the Criminal Code (Qld), in that he went by car to the complainant’s house, with the person who actually entered the house and committed the burglary while armed with a metal rod.  Further, while that person was committing the offence the appellant remained in the vehicle, but as driver, and then drove the vehicle when they left.  The Crown’s case was that the appellant knew what the primary offender (Hansen) intended when he left the vehicle to go to the house.

Issues raised on the appeal

14. The initial ground of appeal was that having regard to all the evidence the conviction was unsafe and unsatisfactory. Leave was sought, and granted, to add three additional grounds of appeal as follows:

1. Ground 2 – that a miscarriage of justice had resulted from the admission of inadmissible evidence namely:

1. that Matthew Hansen [the primary offender] had “implicated” the appellant in the offences; and

2. of other offending committed by the appellant on the same morning;

2. Ground 3 – a miscarriage of justice has resulted from the failure of the learned trial judge to give proper directions to the jury in relation to the use they may make of the evidence the subject of ground 2, once admitted;

3. Ground 4 – that the learned primary judge failed to give a proper direction to the jury as to the drawing of inferences.

15. Ground 4 was only raised at the commencement of the hearing, but the respondent did not oppose the grant of leave to add it.

Nature of the offences

16. The female complainant lived alone in a caravan, with her dogs, at Lowood. The caravan could be accessed from the road by a driveway. On the evening of 8 June the complainant went to sleep leaving sliding doors on the side of the caravan closed, but unlocked. At about 5.00 am the next morning she awoke to find a man inside her caravan and at the foot of her bed. He was wearing a balaclava but notwithstanding this the complainant recognised him as a person she had met once or twice before.  He was carrying a steel bar somewhere between 30 and 40 centimetres in length.  He was aggressive and demanded money and pills.  When she reached for her phone he warned her to leave it alone.  She gave him a bag which had some Oxycontin tablets in it.

17. Once the intruder had the bag he then left the caravan and went out to a car. She lay there for a brief second or two and then became worried that if he discovered there were only a couple of tablets in the bag he might come back. As a consequence she left to get in her car to go to the police.

18. As the complainant was getting into her car she saw the other vehicle reversing out of a driveway^[2] and taking off.  She described it as “… backing out like really quick … and took off down the road”.  At that point she was able to identify that the person who had been in her room and had taken the bag was in the car and another person was driving.  She also recognised that the car which was being used belonged to the person who had been in her room.

Subsequent events involving the complainant

19. The complainant gave evidence that she drove straight to the local police station, but no police officers were present. She rang the police and then became scared that Hansen might come looking for her, so she drove away from the police station. She drove to somewhere near the middle of Lowood and parked there, near some street lights. Her evidence was that she then saw the vehicle she had previously seen reversing quickly out of a driveway. She described it in this way:

“I seen him and the - the other driver in the car coming out of Walters Street past Emily’s and stopping there, and then they turned left - like really fast, and then they turned right and nearly lost it on the corner, and I followed so I could try and get the number plate, but then they turned their lights out when it got down near the river and I thought; I aint going down there any further because it was, you know, nearly getting too dark.”

Course of the trial

20. There were only two witnesses at the trial, namely the complainant and a police officer involved in conducting an interview with the appellant. The essential features of the evidence of the complainant, who was not cross-examined, were as outlined above. Significantly for present purposes, the complainant’s evidence in three respects was not the subject of any challenge. They are:

1. Her evidence that the vehicle in which Hansen and the appellant were seen, reversed quickly out of a driveway and then took off down the road; and

2. A short time later the complainant followed that vehicle in an attempt to get a number plate; and

3. Her evidence that when she saw the vehicle “… I seen him [a reference to Hansen] and the – the other driver in the car coming out of Walters Street …”.

21. Those three aspects of the evidence are important because they are contrary to the version of events given by the appellant in his police interview. According to that account Hansen drove the vehicle to the street where the complainant lived, did a u-turn and “pulled up on the side of the road”.  It was at that point that Hansen asked the appellant if he would drive, at which point the appellant left the passenger seat, walked around the back of the vehicle and got in the driver’s seat.  The appellant’s version of events was that Hansen had “… already walked, started walking down Annette Road …”, and then “… turned right into a driveway ah there was a caravan and a couple of cars”.  The appellant heard yelling and identified that the yelling involved Hansen.  At that stage “… I did start getting a bit worried, didn’t know what was going on. … If there was gonna be a fight, so I’ve umm started the car. … Umm as soon as I’ve started the car he’s come running out up towards the passenger seat …”.

22. The appellant’s version of events included that Hansen was wearing a balaclava when he came running out, with his hood still on, and he was carrying a steel bar. Hansen told the appellant to drive away, which he did. His description was that he “just took off”, and he was “grinding through the gears -- … like I’m a good driver but I was … grinding through the gears”. The appellant’s version of events in the police interview was that they then spent some time driving to the Warrego Highway, and at one point pulled over to the side in order to inject some drugs.  After that they then drove to a scrap steel yard where the appellant and Hansen loaded various items into the back of the utility.

23. As can be seen from the recitation above there were two areas of contradiction between the evidence given by the complainant, and the version of events given by the appellant in his police interview. First, as to the position of the vehicle when they drove off after Hansen had been in the house. The complainant’s evidence was that she saw the vehicle in a driveway and it reversed hurriedly out and sped off. The appellant’s interview asserted more than once that the vehicle was parked out on the road, with him in the driver’s seat, and the engine switched off until the point at which he heard yelling and became worried about what was happening. No part of his account suggested a move into a driveway at any point.

24. The second aspect is less clear, but still open. According to the appellant’s version in the police interview, he became angry shortly after they had driven away from the caravan, and insisted that Hansen resume driving. According to that version of events Hansen was the driver thereafter. The complainant’s evidence appears in this passage:

“I went straight to the police station and there was no police there, and I rung them from there – ‘cause I drove around the back, and I rung the police and then I got scared ‘cause I thought he'd come looking for me, so I drove out again. I rung the police and they told me to stay there and I said, ‘I’m not staying here’ I said, ‘‘cause it’s all in darkness.’ And so I drove off and parked down in Lowood just where the street lights were, in the middle of town but down a little bit further, and I seen him and the - the other driver in the car coming out of Walters Street past Emily’s and stopping there, and then they turned left - like really fast, and then they turned right and nearly lost it on the corner, and I followed so I could try and get the number plate, but then they turned their lights out when it got down near the river and I thought; I aint going down there any further because it was, you know, nearly getting too dark. … So I just quickly turned around, went back and I sat outside the newsagent and a lady was just opening up the newsagent … early and I was telling her about it.”

25. When the complainant said “I seen him”, that seems plainly to be a reference to the same person she referred to in the phrase “I thought he’d come looking for me”, which was a clear reference to Hansen. Therefore one understanding of her evidence is that when she saw the vehicle on that occasion the appellant was still the driver.

Ground 4 – failure to direct as to the drawing of inferences

26. This ground was added only at the commencement of the hearing, but leave to amend was not opposed by the respondent. The contention is that the appellant was convicted on the basis of circumstantial evidence, there being no direct evidence linking him to the offence or establishing his knowledge. In those circumstances the contention is that a circumstantial evidence direction was necessary, dealing with how the jury should approach the drawing of inferences. In particular the contention is that the established rule is that in a substantially circumstantial case “guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances”.^[3]

27. It is right to say that the case against the appellant was substantially based on circumstantial evidence. The only evidence that established he had any involvement in the events leading up to Hansen’s entry into the caravan, and afterwards, came from the appellant’s responses in his record of interview. He denied any knowledge of what Hansen intended to do, that being the critical element for the purpose of establishing that he was a party to the offence under s 7 of the Criminal Code (Qld).  Therefore his guilt had to be established by means of inferences that could be drawn from other available circumstances.

28. The only part of the learned primary judge’s summing up which touched on the question of inferences was in these terms:

“So, how do you use the testimony and the Exhibits? Well, some evidence may directly prove a thing, for example, Ms Brown told you about things that happened to her from the witness box. Photographs and other things put into evidence as Exhibits may also tend directly to prove the facts. But in addition to facts directly proved by the evidence, you can also draw inferences from facts which you find to be established by the evidence. If you are satisfied that one thing happened, it might be right to infer that something else occurred. That will be the process of drawing an inference from facts.

For example, suppose that when you went to sleep it hadn’t been raining, and when you woke up you saw rainwater around. The inference would be that it had rained while you were asleep. However, you can only draw reasonable inferences and your inferences must be based on facts you find proved by the evidence. There must a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.”

29. That passage is one of several directions which are commonly given in circumstantial cases. The other two are those which cover the following:

1. That guilt should not only be a rational inference, but should be the only rational inference that could be drawn from the circumstances;^[4] and

2. That if there is any reasonable hypothesis consistent with innocence, the jury’s duty is to acquit.^[5]

30. No doubt a summing up can give that direction in a variety of different words, but one sensible form is the following:

“Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence.  It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard.  Both direct and circumstantial evidence are to be considered.

To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.

If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.”

31. The learned primary judge made no comment which would satisfy that requirement. The vice lies particularly in the fact that the jury was not told that guilt (in this case, knowing in advance that Hansen, while armed, was going to break into someone’s house and steal goods) had to be the only rational inference that could be drawn from the circumstances. If there was a competing inference consistent with innocence, their duty was to acquit.

32. Some short examination of the facts demonstrates why that would have made a difference. On the evidence given in the police record the appellant went in the car driven by Hansen but did not know where they were going. There is no suggestion that he knew the complainant, or anything about any of the persons living at or nearby where the complainant lived. It is true that when Hansen stopped the car he asked the appellant to take the driver’s seat. At that point Hansen walked or jogged off and turned into the driveway which turned out to be that of the complainant. However, given the history of drug use of Hansen and the appellant, one possible explanation of Hansen’s activities (at least looking at it from the appellant’s point of view) is that Hansen was going to get drugs from a friend or dealer. A second hypothesis (again looking at it from the appellant’s point of view prior to the occurrence of the offences) is that Hansen was meeting someone for purposes other than the commission of offences. The possible hypothesis (there maybe more) were alive because the only account relating what took place prior to the complainant being involved in the events, came from the record of interview, in which the appellant denied any prior knowledge of Hansen’s intent to commit the offences. As the learned primary judge pointed out in her summing up, that denial of knowledge cannot be turned into evidence from the interview that the appellant did, in fact, have knowledge of the offences.

33. The absence of the appropriate direction has the consequence that the jury, when considering the evidence, were not considering it from the point of view that if they inferred prior knowledge on the part of the appellant (that is, the foundation of guilt as a party to an offence) that inference must be the only rational inference that could be drawn from the circumstances.

34. In light of this conclusion, the conviction cannot stand and should be set aside.

35. However, what follows the setting aside of the conviction depends upon resolution of ground 1, namely that the conviction was unsafe and unsatisfactory. I now turn to that matter.

Was the verdict unsafe and unsatisfactory?

36. Shortly put the question before this Court is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[6]

37. In carrying out this task the court is required to make an independent assessment of the evidence, both as to its sufficiency and quality.^[7]

38. The central issue at the trial was not whether the appellant was the driver of the vehicle at the relevant time, nor whether Hansen acted in the way described by the complainant in her evidence. Indeed the complainant was not cross-examined on any aspect of her evidence. The central issue in the trial was whether the appellant knew what Hansen intended to do when he left the car and went to the complainant’s caravan. It was common ground that if the appellant’s awareness of Hansen’s intention was only formed after the event, that would be insufficient.

39. A review of the evidence available to the jury reveals a number of essential features, including the following:

1. The complainant’s evidence identified that a man she knew as “Matty” was discovered by her standing inside her caravan at about 5.00 am on the particular day; the appellant’s version in his police statement accepted that he and Matty (known to the appellant as Matthew Hansen) had driven to a spot about 50 metres from the complainant’s driveway some time after 3.00 am on that day;

2. The appellant’s version was that Hansen had driven to the vehicle to the street in which the complainant lived, at which point he did a u‑turn and pulled up at the edge of the road on the opposite side to the complainant’s caravan; Hansen then asked if the appellant could drive;

3. The vehicle was a dual cab ute; it had two seats in the front, and three behind that but still in the same cabin;

4. The appellant got out of the passenger side, walked around the back of the ute, and got into the driver’s seat; he saw Hansen walk or jog down the road and turn right into a driveway where there was a caravan;

5. The appellant saw that Hansen had his hood up, but saw nothing in his hands;

6. The appellant said that shortly thereafter he could hear Hansen yelling, at which point he became worried because he didn’t know what was going on, and there may have been a fight;

7. At that point, because he was worried, the appellant turned the engine on;

8. At about that point, according to the appellant, Hansen came running towards the passenger seat, with a  balaclava on and his hood pulled up; he had something wrapped around his hand and was carrying a metal bar;

1. Hansen told him to drive away which he did, describing it as “I’d started the car and then just took off”, and that he was “grinding through the gears”;

10. According to the appellant’s police interview, shortly after that he pulled up and insisted that Hansen take over as driver again, and got angry with Hansen, insisting that he be taken home, to which Hansen responded by assuring him that it was alright and to calm down;

(k)On the appellant’s version, thereafter Hansen drove and they headed to the Warrego Highway, where they pulled up and injected some drugs, possibly some of those taken by Hansen in the incident at the caravan;

(l)The complainant’s evidence was that after the car had exited from a driveway and driven off she drove straight to the police station where she rang the police, and then drove into Lowood and parked; at that point she saw Hansen and “the other driver in the car coming out of Walters Street …”, at which point they did a fast left turn and then a right turn and nearly lost it on the corner, and she followed to try and get the number plate but gave up and turned around and went back at a particular point; I have commented previously that this particular piece of evidence was capable of being understood by the jury as meaning that the complainant had identified the appellant as the driver on that occasion.

40. The crown case highlighted the implausibility of the version given by the appellant in his police interview. According to the appellant’s version he had not realised anything was amiss until the point at which Hansen came running back to the car after having walked or jogged into the driveway where the caravan was. In other words, his version was that he did not know what Hansen intended to do prior to the event, and that lack of awareness was affected by his tiredness (having been awake for two or three days straight) and the effects of drugs he had taken.

41. The implausibility included the following matters which were highlighted to the jury:

1. The appellant’s history as a drug user could be considered to give him a motive to be involved in Hansen’s conduct;

2. It was implausible that Hansen and he would decide to take the vehicle for a test drive (as stated in the appellant’s interview), having worked on it to repair it, at 3.00 am in the morning, especially having been awake for at least two days;

3. The appellant was able to detail a number of places and routes that had been taken on that ride, but asserted he was falling asleep when they arrived at the complainant’s street at about 5.00 am;

4. Having turned the car in a u-turn and pulling up 50 metres from the driveway to the complainant’s caravan, there was no rational explanation for Hansen’s request that the appellant drive the vehicle, unless it was the case that the appellant knew what was going to happen next;

5. The appellant saw Hansen jog off towards the driveway leading to the caravan, with his hood up; but at the same time the appellant asserted that he didn’t see anything of a balaclava or steel rod until Hansen came running back to the car;

6. The Crown highlighted the implausibility of an innocent explanation accompanying Hansen’s leaving the car at that hour of the morning, and moving into the driveway leading to the caravan, unless the explanation was an offence was about to be committed and the appellant knew it was;

7. Something was made of the fact that it was inherently implausible that Hansen would have stopped on the way up the driveway to put on his balaclava, and that it was more likely done earlier than that;

8. The Crown highlighted the inconsistency inherent in the version which had the vehicle parked on the edge of the road with its engine off, then the appellant hearing yelling and becoming worried and at that point starting the car because he did not know what was going on inside;

1. When Hansen returned he was carrying a 40 centimetre metal rod and it was suggested to the jury that it was unlikely that the appellant could have missed the fact that Hansen had it when he ran off towards the caravan;

10. The Crown also highlighted the fact that even on the appellant’s own version in his police statement, the appellant knew that something had happened or was happening in the caravan at a point before Hansen’s return, and at that point the appellant started the car as though in readiness to drive off; it was put that the reason he didn’t drive off was because it was likely he knew what Hansen was doing.

42. On the defence side the two primary approaches in terms of what was said to the jury was that the appellant’s willingness to speak to the police bespoke innocence in terms of knowing what Hansen intended to do; in other words, he had been caught up in Hansen’s activities unknowingly, and wished to explain his position. The second aspect was to emphasise the reaction of the appellant in the aftermath of the actual events. His anger about being involved, insistence that Hansen drive, and that he be taken home, were all referred to as indications of evidence which spoke against the appellant having known beforehand what Hansen intended to do.

43. In my opinion there was evidence which, if accepted by the jury could lead them to reject the version given by the appellant in his police interview, and conclude that he had the requisite knowledge. The participation by the appellant in the “test drive” at between 3.00 am and 5.00 am in the morning; taking over as a driver when Hansen asked him to, and at the same time Hansen left to walk towards the complainant’s caravan at about 5.00 am; the fact that the appellant saw Hansen walk or jog away from the vehicle with his hood up; the evidence as to how the car left the scene; the rapid reversing of the vehicle by the appellant once Hansen had ran out from the caravan and told him to drive away; the fact that on the appellant’s version he started the car when he heard Hansen yelling because he was worried about what might be happening, or what had happened; inferentially starting the car under those circumstances was to make a rapid exit; the fact that the appellant drove from the scene once Hansen was in the car and after the appellant had seen that he had a balaclava on and a steel bar.

44. Further, the implausibility of the appellant not seeing the balaclava and steel bar has to be judged in light of the circumstances when the vehicle was stopped by Hansen. It was a dual cab ute, whilst those items might have been retrieved from the rear tray, there was also a rear part of the cabin in which such items could have been stored. The appellant walked round the back of the ute to get to the driver’s door and whilst he would then have been on the opposite side of the vehicle to Hansen, nonetheless he saw Hansen walk or jog away from the vehicle, with his hood up, and for long enough to notice that he turned right into a driveway where there was a caravan and car.  On his version the sequence was that he got in the driver’s side after he saw Hansen go into the driveway.

45. An additional feature is the fact that the appellant and Hansen both had drug use as a feature of their life. The fact that money and pills were targeted in the theft (there was no challenge to the complainant’s evidence that that was what Hansen had referred to when he was in her caravan) is evidence tending to establish a motive for the appellant’s involvement in the offence.

46. The summing up to the jury, after the addresses by the counsel on each side, appropriately highlighted the matters of which the jury needed to be satisfied before convicting. Specifically the jury were cautioned that they could not use the fact that the appellant had had previous contact with the law, nor that he was a fairly heavy drug user. The limit of using the evidence of his use of drugs was carefully explained in terms of evaluating his evidence, but not as a basis for finding guilt. The appellant’s denial of knowledge of the offence was highlighted, as was his giving answers which might indicate his innocence.

47. The elements of the offence were neatly and appropriately summed up by the learned primary judge in these terms:

“You can only find the accused guilty of either of the offences if you are satisfied beyond reasonable doubt that when he was in the car waiting, he did so intending to help Matty, knowing that he was going to commit the offences in question.

If you are not satisfied that he knew that Matty meant to do these things or if you have a reasonable doubt about it, then you must find him not guilty.”

48. The contrasting positions between the Crown case and defence case were highlighted by her Honour, picking up matters raised by each of counsel in their addresses. At the same time her Honour emphasised that the appellant had to have full knowledge in order to be guilty.

49. In my view a jury, properly directed, could conclude that the appellant lead the requisite knowledge to result in a finding of guilt. I am not satisfied that this is a case where the conviction is unsafe and unsatisfactory.  In my view, on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant, contrary to the version he gave in his police interview, was aware beforehand of what Hansen intended to do at the caravan.

Grounds 2 and 3

50. In light of the findings above it is unnecessary to deal with grounds 2 and 3 of the appeal.

Conclusion and disposition

51. For the reasons given above the conviction should be set aside and the matter remitted to the District Court for retrial.

52. The orders that I would make are as follows:

1.Appeal allowed.

2.The conviction is set aside.

3.A retrial is ordered.

53. NORTH J:  The evidence at the trial has been set out by Morrison JA and canvassed by Holmes JA in their reasons.  It is unnecessary for me to repeat it.  The prosecution case against the appellant relied upon his admissions in the record of interview and the circumstances of the robbery sworn to by the complainant when she gave evidence.  Additionally the prosecution case relied upon the complainant’s evidence of the manner of driving of the get away vehicle and the evidence of who was driving the vehicle.

54. The foregoing underscores why the circumstantial evidence direction was necessary and the failure to give it occasioned a miscarriage of justice.^[8]  Therefore for the reasons given by Morrison JA I agree that the appeal should be allowed and the conviction quashed.

55. Not without hesitation I have concluded that the prosecution case cannot prove that the appellant was aware that Hansen was armed with a bar and wearing or in possession of a balaclava when he walked from the motor vehicle. The jury having seen the interview between the appellant and the police officer may have concluded that he should not be believed but the available evidence does not prove these matters. In the circumstances for the reasons given by Holmes JA I agree with the orders proposed by her Honour.