R v Sinden[2015] QCA 280

SUPREME COURT OF QUEENSLAND

[1] HOLMES CJ:  The appellant, Derek Sinden, also known as Shanika Sinden, pleaded guilty before a jury to seven counts of fraud and one of attempted fraud, but stood trial on one count of robbery with personal violence or, in the alternative, stealing, and two further counts of fraud, involving transactions at, respectively, Subway and JB Hi-Fi.  Shiva Goonatilleka, who on the Crown case was the appellant’s accomplice in the frauds, gave evidence against her, and she was convicted of the count of robbery with violence and the fraud count involving JB Hi-Fi.  The appellant appeals her convictions by the jury on the ground that the guilty verdicts were unreasonable and on grounds that the trial judge erred in failing properly to direct the jury on three matters:  discreditable conduct, the approach to be taken to Goonatilleka’s evidence as an accomplice, and evidence of flight.

The evidence

[2] On 12 January 2014, an elderly woman, Ms Margaret Baker, returned from shopping at the Toombul shopping centre to her unit at Melton Road, Nundah.  According to Ms Baker the walk from the shopping centre to her house, depending on the traffic, took her about ten minutes.  (From an exhibited aerial photograph, the shopping centre’s north-eastern exit appears to have been about 280 metres from Ms Baker’s unit.)  After checking her letterbox, she continued along the driveway.  Something then happened which she could not recall; she found herself sitting on the ground with blood running down her face.

[3] A neighbour who came to Ms Baker’s assistance noticed that her eyebrow was bleeding and her left arm (on which she had been carrying her handbag) was swollen around the wrist.  Ms Baker had in fact suffered a fracture of her left wrist and a facial fracture with some brain bleeding, but it was not possible to say that the injuries were caused by an assault, as opposed to a fall.  A swab taken from the driveway contained a mixed DNA profile indicating two contributors, one of whom was Ms Baker; the other was neither the appellant nor Goonatilleka.

[4] Ms Baker still had her shopping trolley with her, but her handbag was gone.  She described it as a small bag, with wooden handles, made from a basket weave material.  Among other things, it contained a wallet, some Panadol Osteo tablets she had bought, an American Express card and a Commonwealth Bank credit card.  Later that day, a number of transactions were made by someone using those cards.  Ms Baker identified relevant transactions from her credit card statement as including those at Terry White Chemist, Coles, Target, Vodafone, a shoe shop named Aldo, JB Hi-Fi, Hungry Jack’s and Subway.  All of the counts of fraud and the count of attempted fraud with which the appellant was charged related to the making of purchases using Ms Baker’s credit card that day.

[5] Under cross-examination, Ms Baker agreed that she could not say how she came to be on the ground; she might have fallen or she might have been struck by someone.  She did not remember hearing anyone running behind her, or, in particular, the noise of a rustling plastic bag.  She conceded that she had once previously fallen; a couple of years earlier she had tripped on an uneven pavement near the shopping centre and had fallen to her knees.  She agreed that she had a history of hypertension, but it was controlled by medication.

[6] It was formally admitted that both the appellant and Ms Baker had left the Toombul shopping centre at 12.50 pm that day, Ms Baker through the exit on the north-eastern side of the shopping centre and the appellant through an exit on the southern side.  A neighbour of Ms Baker’s saw a woman answering her description walking alone and pulling a shopping trolley along Melton Road near her block of units.  The appellant was staying with Shiva Goonatilleka at a unit in Nundah in Hows Road, close to the Toombul shopping centre.  The aerial photograph indicates that the centre's southern exit was about 460 metres from Ms Baker’s unit, with the Hows Road unit about 480 metres further on.  Like Ms Baker’s unit, it was to the north of the shopping centre.  A pedestrian taking a direct path to the Hows Road unit would have used the north-eastern exit and walked slightly to the left and then straight ahead along Kreutzer Street, whereas to reach Ms Baker’s unit entailed walking a block to the right of that exit and travelling along Melton Road, which ran parallel to Kreutzer Street.

[7] When the appellant left the shopping centre, she was wearing a white shirt and black leggings and was carrying a black bag and a white plastic shopping bag.  Soon after, at 1.12 pm, she could be seen on closed circuit television footage at the bus stop at the shopping centre, about 280 metres from the Hows Road unit, wearing a black hat, black shirt and white pants and carrying a black bag.  By then, she was with Shiva Goonatilleka.  It was admitted that the appellant and Goonatilleka travelled by bus to the city, where they went to an Officeworks store, the David Jones store, a pharmacy in the Myer Centre and a shoe shop in Queen Street, where they were served by a Ms Begg.

[8] The case against the appellant on the counts to which she pleaded not guilty (robbery or stealing and the Subway and JB Hi-Fi frauds) was largely founded on the evidence of Shiva Goonatilleka.  Mr Goonatilleka said that in January 2014, the appellant, who was known to him as Shanika Sinden, stayed with him at his Hows Road unit for about a week.  On 12 January 2014, she came running into the unit in an excited state, saying that she had just snatched a handbag and that it might hold money they could use to buy drugs.  The handbag had two handles and was made of a woven material.  Inside it were a packet of Panadol Osteo and a purse containing credit cards with a PayPass facility.

[9] Goonatilleka suggested that they go shopping using the credit cards.  He and the appellant travelled by bus into the Brisbane city centre.  The two went to a number of shops including Target and Officeworks and used the credit card to make purchases which, according to Goonatilleka, the appellant had said she could, through her connections, exchange for drugs.  Goonatilleka was asked about a transaction at Subway; he said that they had not been at Subway, only at Hungry Jack’s.  In relation to the JB Hi-Fi purchase, Goonatilleka gave evidence that he went to the store alone while the appellant was at another shop, but it was at the appellant’s instigation that he had bought a portable hard drive.  The last of their transactions was at Vodafone, where the appellant used one of the credit cards to purchase a phone.

[10] Ms Begg, a sales assistant at the Aldo shoe store, which also carried a line of jewellery, gave evidence of assisting a person answering the appellant’s description with a choice of jewellery, while an accompanying man, apparently of Indian descent, paid for the purchases with a credit card.  The Crown also adduced evidence in the form of CCTV footage from some of the relevant stores: Terry White Chemist, in which both the appellant and Goonatilleka could be seen; David Jones, in which again both the appellant and Goonatilleka could be seen carrying out a transaction by credit card which was declined, resulting in the attempted fraud charge; and JB Hi-Fi, in which only Goonatilleka could be seen.

[11] After their shopping excursion, the two returned to Nundah.  According to Goonatilleka, as they walked towards his unit, they saw an elderly woman walking a dog.  The appellant pulled her cap down over her eyes, and, saying that she hated dogs and would meet him at home, ran to the other side of the street.  Later she explained to him that she thought it might have been the woman from whom she had taken the handbag, who lived around the area.  That evening, they exchanged the items they had bought for drugs.

[12] In cross-examination, Goonatilleka admitted that he had told a number of lies in his original police statement.  He had falsely claimed that the appellant had left his unit on the night of the shopping excursion; that he had not seen the Panadol Osteo until he came home in the afternoon of 12 January and saw it sitting on his bed; that it was the appellant who had asked him to go shopping; that she had made a purchase of food at Hungry Jack’s; and that it was not until they reached the city that he became suspicious about the cards and was then told by the appellant that they were stolen.

[13] In his statement to police, Goonatilleka had said that on their arrival home on 12 January, he had asked the appellant why she ran away on seeing the old woman walking her dog and the appellant had responded that she was “scared of dogs”.  Cross-examined about the difference in his evidence, Goonatilleka said that he had “slightly” altered the facts when he spoke to police.  He had also on different occasions made and denied a claim that the appellant the following day had informed him by telephone that she had snatched another handbag.  Goonatilleka denied, however, that it was he who had taken the handbag from Ms Baker, although he agreed that it was his decision to go shopping and that he was the one who, on most occasions, used the cards.

[14] Goonatilleka denied that he had been told when initially arrested that it was for stealing, saying that he was informed it was for using the credit cards.  However, the investigating officer confirmed in his evidence that he had told Goonatilleka he was under arrest for stealing, although in the event, he was charged with fraud, not stealing.

[15] The appellant did not give evidence.

Failure to direct the jury in relation to discreditable conduct and other offences

[16] It was submitted that the trial judge should have given a general propensity warning in relation to three aspects of the evidence:  the evidence of drug use by the appellant; her pleas of guilty to a number of the fraud counts and the evidence led of those matters at the trial; and her alleged threat to Goonatilleka.

[17] Evidence of a threat emerged in the course of cross-examination, when defence counsel asked Goonatilleka the following question and received the following answer:

“Is there something that you can tell this jury that would make them believe that it’s this occasion that you’re telling the truth, given all your previous lies?---Yes, there is.  The reason that I told the prosecutors that it was not – that the evidence I gave was incorrect was because Shanika had threatened - - -”

Before the answer was completed, defence counsel objected.

The jury and the witness were sent out and counsel expressed concern about the answer, saying that he feared that the trial was at the “same position we were at previously”.  (It appears that there had been an earlier mistrial because of something Goonatilleka had said.)  Counsel did not ask for the jury to be discharged, but when the trial judge asked whether he considered it was a matter which could be dealt with by an appropriate direction, he answered that he did not know how he could undo what had been done; the matter would remain in the jury’s minds.

[18] The trial judge adjourned.  She returned to say that she considered what had occurred was not so prejudicial that a trial could not proceed.  Her Honour indicated that once the evidence was finished she would ask defence counsel what directions he considered appropriate.  She enquired whether there was anything further; defence counsel responded that that was a “sensible approach”.  He indicated his intentions, which were to review the various matters which Goonatilleka accepted as lies in his police statement and to put to him that on two specific occasions in meetings with the prosecutor he had made no mention of being threatened.  He took that course; Goonatilleka admitted the lies and accepted that on those two occasions he had not made any claim of being threatened.

[19] No direction warning the jury against propensity reasoning was sought at the trial, so it is necessary for the appellant to demonstrate both that it should have been given and that it is “reasonably possible” that the failure to give it may have affected the verdict.[1]

[20] The appellant contended that a miscarriage of justice arose for these reasons.  The evidence of drug use consisted of Goonatilleka’s statement that the appellant intended to (and did) exchange the goods bought for drugs.  That contained not only an indication of prior drug use but a suggestion that she had criminal connections.  The threat by the appellant could be taken as indicating a predisposition towards violence, which was highly prejudicial in the context of a trial for an offence of robbery with violence.  Evidence of other fraudulent purchases had been relied on as similar fact evidence: the appellant pointed to a passage in the prosecutor’s address where he referred to the transaction which Ms Begg had witnessed (in which the appellant made selections while Goonatilleka undertook the purchase) as negating any suggestion that the appellant was merely a spectator, and to a more general reference to the two being involved in a venture of which there was video evidence.  The trial judge had not explained the purpose and limits of the evidence of other frauds, despite the High Court’s stipulation to that effect in Roach v The Queen.[2]

[21] The appellant also in this context submitted that she was further prejudiced by the lack of a Markuleski[3] direction, which should have been given; it was said that the significance of its omission was evidenced by the acquittal on one count.

Discussion

[22] The evidence of Goonatilleka as to the appellant’s expressed intention to exchange for drugs the property obtained through the credit card use was plainly relevant and admissible in establishing a dishonest intent on her part.  The trial judge mentioned that evidence, without further comment, in summarising the evidence generally.  She might well have given a direction that the jury should not infer from the appellant’s drug use and dubious connections any general criminal disposition.  However, the prosecutor had not made any submission about the matter in his address.  In that circumstance, the appellant may have been better served by silence on the point, so that the jury were not reminded of, and did not have any occasion to focus on, her drug use and the milieu in which she operated.  Counsel on the appeal accepted that the omission to give a direction in this respect was not of itself sufficient to occasion a miscarriage of justice, but submitted that it should be considered cumulatively with the other aspects of prejudicial evidence.

[23] The suggestion of a threat by the appellant was, because of the interruption of Goonatilleka’s answer, left entirely unclear as to its form or object.  For all the jury knew, the appellant might have threatened self-harm, or a response to Goonatilleka well short of violence.  More importantly, defence counsel dealt with it by suggesting that it was yet another of Goonatilleka’s lies; a proposition which may have held some attraction for the jury, given that Goonatilleka admitted he had failed to mention it on two previous occasions.  Counsel for the prosecution said nothing about the matter.  That being so, to tell the jury that the threat should not be taken as an indication that the appellant had a tendency to commit violent offences would, in my view, have actually disadvantaged the appellant by tending to confirm it as having occurred and by giving a colour to the threat, as one of violence, which it did not necessarily possess.

[24] The evidence of other fraudulent transactions that day was evidently relied on by the Crown as demonstrating a modus operandi as between Goonatilleka and the appellant and was also admissible as evidence of the appellant’s control, jointly with Goonatilleka, of the stolen cards at the time of the denied transactions.  The trial judge in summing up did in fact advert to the Crown’s reliance on the role played by the appellant in selecting items for purchase even if not herself holding the credit card.  The only issue, then, is whether the jury should have been warned against reasoning towards guilt of the contested offences from the appellant’s evident tendency to commit offences of the kind.

[25] The other offences first came to the jury’s attention when the appellant pleaded guilty to them on arraignment in their presence.  In his address, defence counsel relied on those pleas as the appellant’s admission to having committed those offences, contrasting them with the others for which she denied guilt. The point was that by her pleas the appellant had accepted responsibility where appropriate and thus could be taken similarly to have denied guilt only where appropriate.  The jury might properly have been warned not to assume guilt from a conclusion that the appellant had committed other offences of the kind; but the effectiveness of such a warning would be considerably muted by the fact that they ought also to be told that they were entitled to have regard to that evidence as demonstrating a consistent pattern of conduct in use of the credit cards.  In addition, to tell the jury that they should not regard those pleas and the evidence about those offences as pointing to guilt on the contested counts might have distracted them from counsel’s point, that the guilty pleas were indicative of innocence on the contested charges.

[26] The fact that the jury acquitted on one count is a strong indicator that they were not in fact subject to any improper propensity reasoning.  I do not consider that there was a significant possibility that the failure to give a warning affected the verdict.

[27] As to the Markuleski point, this was not a situation in which one would infer that the jury acquitted because it disbelieved the Crown witness in relation to one count, a disbelief which might then lead to a reasonable doubt as to accuracy in respect of other matters.  To the contrary, the jury presumably acquitted because they accepted, or at least were caused to have a reasonable doubt by, Goonatilleka’s evidence that they had not gone to Subway, notwithstanding the existence of a relevant transaction in that store.  There is no reason to think, then, even if a Markuleski direction were warranted, that the appellant was prejudiced by its omission.

[28] No miscarriage of justice was occasioned by the failure to give the identified directions.

The failure to give an accomplice direction in respect of Goonatilleka’s evidence

[29] The trial judge gave the jury the following caution about acting on Goonatilleka’s evidence:

“Before you act on his evidence, you should consider whether you are satisfied of his reliability, accuracy and honesty.  You should take into account the prospect that Mr Goonatilleka may have been motivated to say certain things because of his own involvement in these circumstances.  You should have regard to what Mr Goonatilleka stood to gain, or thought he stood to gain, by giving evidence against the defendant.  If there is no independent evidence confirming the evidence of Mr Goonatilleka, you would be right to be very wary of acting on it.”

That direction was read to counsel before the trial judge gave the summing up; neither demurred or sought any other direction.

[30] It was submitted that an accomplice direction should have been given, cautioning that it would be dangerous to convict and alerting the jury to the bad character of the witness Goonatilleka.  In addition, given that there had been cross-examination of Goonatilleka as to his motive to lie (to avoid being charged with stealing the handbag) it was submitted that the jury should have been given a direction akin to that suggested in the Queensland Supreme and District Courts Benchbook[4] as apposite where a complainant is accused of lying.  The jury should have been told that if they rejected the proffered motive it did not follow that the witness was telling the truth.  In addition, in order to explain what it was that Goonatilleka had to gain, the jury should have been reminded about his possible motive to lie: to avoid being charged with robbery.

[31] Once again, because no different direction was sought – indeed, the direction given was the product of discussion with counsel – it is necessary for the appellant to demonstrate a miscarriage of justice: that the contended-for directions should have been given and that the failure to give them may have affected the verdict.

[32] The appellant’s counsel referred to the Victorian Court of Appeal decision of R v He & Bun,[5] in which it was said that where a witness was an accomplice the trial judge was required as a matter of law to give an accomplice warning – that is, a warning that it was dangerous to act on his evidence in the absence of cooperation – even if the defendant had specifically disavowed any need for it.[6]  The court noted the existence of authority to the effect that where an accomplice warning was required as a matter of law to be given and was not, there was a miscarriage of justice and that the proviso should not be applied unless there was substantial evidence implicating the defendant apart from the evidence of the accomplice.[7]

Discussion

[33] He, in my view, is of little assistance here, because in this State, section 632 of the Criminal Code provides that a judge is not required by any rule of law to direct a jury that it is unsafe to convict on the uncorroborated testimony of one witness[8] and precludes a judge from suggesting that the law regards any class of persons as unreliable.[9]  The trial judge of course retains the right to make comments on the evidence given in the trial as he or she thinks appropriate in the interests of justice,[10] but it cannot be said that the judge in this case was obliged as a matter of law to give an accomplice warning.

[34] And there is a difficulty for the appellant in the notion of Goonatilleka being an accomplice in the robbery.  It was not the Crown case, nor was it the defence case: the premise on which Goonatilleka was cross-examined was that he alone may have committed the theft of the handbag.  There was no evidentiary basis on which the trial judge could properly have directed as though he were an accomplice in that offence.  Indeed, it plainly would have been prejudicial to the appellant to suggest that they had acted together in it.

[35] Goonatilleka was clearly enough an accomplice in the fraud offences, but the trial judge could not, in light of s 632(3), properly have instructed the jury that it would be dangerous to convict on his evidence purely because he was an accomplice.  The direction the trial judge did give alerted the jury to the need to consider Goonatilleka’s possible motivation.  That direction was given in a context in which defence counsel in his address had invited the jury to infer that the relevant motive to lie was to avoid being charged with stealing.  The trial judge reprised that submission in summarising the defence address later in her summing up.  In my view, there was no risk at all that the jury, when the trial judge cautioned them to consider Goonatilleka’s motivation because of his own involvement and what he stood to gain by giving evidence, would have been under any misapprehension as to the nature of the suggested motivation.  There was no evidence of Goonatilleka’s bad character apart from his involvement in the fraud offences – it was not suggested, for example, that he had any criminal record – so there was really nothing to be added in that regard.  The direction given was entirely appropriate and properly recognised as such by defence counsel.

[36] No authority suggests that in any case where a motive to lie has been proposed, a trial judge is required to give a direction to the effect that the jury should not, if they rejected it, necessarily conclude that the witness was truthful.  A direction of that kind may be appropriate in some cases, for example where a complainant gives evidence of sexual offences and the question of motive to invent allegations is raised.  Thus in R v Van Der Zyden,[11] where the prosecutor in his closing address emphasised the absence of any motive on the part of the complainants to lie and implicitly invited the jury to accept their evidence in the absence of a demonstrated motive, this Court observed that it would have been appropriate for the trial judge to direct the jury along the lines that there might have been a motive of which the defendant was not aware and that the absence of proof of it did not mean that the complainant was truthful.  In the present case, however, the prosecutor in his address had said nothing about the suggested motive to lie.  The direction for which the appellant now contends was not called for, and no miscarriage of justice resulted from its absence.

The failure to direct concerning flight

[37] In his address, the prosecutor had reminded the jury of Goonatilleka’s evidence about the explanation the appellant gave him for her reaction to seeing the old lady walking a dog: that she might have been the person that she had attacked.  (That statement, if accepted as having been made, was an admission to the robbery.)  The prosecutor continued,

“Remember he talked about the attempts at disguise.”

The trial judge outlined the relevant evidence but did not make any comment about it and, in summarising the prosecutor’s submission, simply reminded the jury of his point, that Goonatilleka’s versions of the event given to the police and in his evidence were essentially the same.  The appellant contended that the reference to disguise was a clear suggestion of a form of flight and that the trial judge should have directed that her conduct might be attributable to reasons other than consciousness of guilt; for example, her fear of dogs.

Discussion

[38] This was not a case in which any explicit reliance was placed on the appellant’s behaviour as indicating a consciousness of guilt.  At the highest, the prosecutor’s passing reference to an attempt at disguise might have been construed in that way.  A direction by the trial judge making it clear that the evidence could be used as indicating a consciousness of guilt, with the attendant cautions, could only have given substance to what was, at most, hinted at, to the disadvantage of the appellant.  And so far as the reference had been made by the prosecutor to an attempt at disguise, it would not have been a very compelling suggestion that the appellant had found it necessary to pull her cap down over her eyes because of her fear of dogs.  The proposed direction was not necessary and would not have assisted the defence.

The unreasonable verdict ground

[39] It was submitted for the appellant that the robbery count relied on Goonatilleka’s evidence of admissions by the appellant and the fraud count on his claim that the appellant had instigated the relevant purchase from JB Hi-Fi.  The jury ought not to have accepted his evidence in either respect: he had lied on a number of matters and had an interest in implicating the appellant.  Only 20 minutes had passed between the appellant’s exit from the shopping centre by the southern exit and her return to the bus stop; it was suggested that that was not sufficient time to commit the offence.  Ms Baker had not heard any rustling noise behind her, notwithstanding that the appellant was carrying a plastic bag.

[40] It was possible that Goonatilleka had also been at the Toombul shopping centre; the CCTV footage obtained from the shopping centre was not the entirety of what was available for the relevant time period.  The jury could not have excluded as a reasonable possibility the prospect that some other person, possibly Goonatilleka, had committed the assault.  Another reasonable possibility which the jury could not exclude was that Ms Baker had suffered a fall and had her bag taken while she was incapacitated.  It was known that she had previously fallen and that she had a history of hypertension, and the medical evidence as to the cause of her injuries was equivocal.

Discussion

[41] There is no doubt that there was a very limited timeframe for the appellant to make the journey from the shopping centre to Ms Baker’s unit, thence to the Hows Road unit and onto the bus stop while changing a couple of articles of clothing.  The fact was, however, that between 12.50 pm and 1.12 pm Ms Baker’s cards were taken and came into the possession of the appellant and Goonatilleka, so that whatever the course of events, it plainly occurred at considerable speed on someone’s part.

[42] The jury could properly have ruled out the possibility of Ms Baker’s falling coincidentally with the appellant’s being close at hand to take her handbag.  If they considered that it was the appellant who had taken the bag, all the evidence pointed to her having followed Ms Baker for that purpose: Melton Road was not on any direct path back to the Hows Road unit, and the choice of an exit from the shopping centre in the opposite direction from the unit strongly suggested a concern not to be recorded on camera following Ms Baker.

[43] The jury could similarly rule out another extraordinary coincidence: that although the appellant had left the shopping centre at the same time as Ms Baker, Goonatilleka, independently of the appellant, had chanced on Ms Baker and robbed her.  The appellant was the obvious perpetrator of the theft, having left the shopping centre at the same time as Ms Baker.  It was implausible to suggest that a third person was involved: that person would have had to steal the bag, retrieve the cards and deliver them to the appellant and Goonatilleka so that they were at the bus stop with them 20 minutes after Ms Baker left the shopping centre.  The contributor to the DNA sample taken from the driveway was quite probably the neighbour who assisted Ms Baker.

[44] More importantly, the jury were entitled to act on Goonatilleka’s evidence if they found him credible.  The fact that he may not have been entirely frank with police in his first account was not remarkable and did not preclude acceptance of what he said.  By the time of trial, there was in fact nothing which he stood to gain by giving his evidence, having already pleaded guilty and been sentenced in respect of his part in the offending.  He was not a witness giving evidence pursuant to any undertaking under s 13A of the Penalties and Sentences Act 1991.  His evidence was not inherently implausible so far as it concerned the fraud offence.  It was supported as to the general nature of the appellant’s involvement in the use of the credit cards by the CCTV footage and Ms Begg’s account.  As to the robbery count, it was rendered more probable by the fact that the appellant had been at the shopping centre and left at precisely the same time as Ms Baker.  Goonatilleka’s account of a bag snatch accorded with the injury to Ms Baker’s left wrist, which was consistent with the handbag’s being forcibly pulled from her arm.

[45] The verdict was not unreasonable.

Order

[46] I would dismiss the appeal against conviction.

[47] PHILIP McMURDO JA:  I agree with the Chief Justice.

[48] PETER LYONS J:  I have had the advantage of reading in draft the reasons of Holmes CJ, with which I agree.  I also agree with the order proposed by her Honour.