R v FAH[2016] QCA 122

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  The appellant was convicted in the Children’s Court at Southport after a two day trial of two offences of armed robbery, in company, with personal violence.  He has appealed against his conviction on the grounds that the verdict of guilty was unreasonable and against the weight of evidence, and that he was impermissibly cross-examined as to why he had not revealed to investigating police the manner in which he had come into possession of a stolen mobile telephone.
2. The issue at trial was whether the Crown proved beyond reasonable doubt that the appellant was one of the two offenders involved in the commission of the offences on the night of 2 July 2013.  Amongst the property taken by the offenders was a mobile phone which the appellant admitted that he had used to make a telephone call at 12.02 am on 3 July 2013.

The trial

3. The two complainants gave evidence that they were walking at Kirra on the Gold Coast sometime after 10.30 pm on 2 July 2013 when they were robbed by two men they did not know.  Both complainants said that one offender had a gun and the other had a baseball bat, the complainants changed the direction they were walking when they first saw the offenders, and the offenders then approached them from behind.  The female complainant said that the offenders were approaching quite quickly, yelling and swearing, saying that they had a gun and telling the complainants repeatedly to get down.  The female complainant said that the gun was silver with a bit of a rectangle on top of the barrel, but she could not see the grip.  She looked straight down the barrel and saw silver in it.  She was not familiar with guns and could not identify what type of gun it was but described it as “like a [sic] old kind of style gun”.  She thought it was about 20 centimetres.  The male complainant described the the gun as “[s]ilver-ish” and “small.  Just – enough to hold in one hand.”  Both complainants said that the offenders told the complainants not to look at them.
4. Both complainants said that one of the offenders hit the male complainant on the head with the baseball bat and the male complainant fell to the ground.  The male complainant said that one of the offenders stomped on his head, something was poked in the back of his neck, and the offenders demanded he hand over his mobile phone.  In cross-examination the complainant was asked whether, from what he could see of the gun, it did not look to be a child’s toy; he answered, “No, not … from what I could tell”.  He was asked whether it was plastic and he answered, “didn’t seem … no.”  The female complainant said that one of the offenders pushed her on the ground face down.  She saw the offender with the baseball bat stomping on the male complainant’s head.  The offenders demanded money but the complainants only had a $2 coin between them, which the male complainant said he threw at the offenders.  When the offender stomped on the male complainant’s head, the female complainant panicked and told the offenders to take her phone.  One of the offenders held the gun to her face, threatened her, told her not to look at him, and held the gun at the back of her neck, pushing aggressively.  She threw her phone.  The offender with the baseball bat picked it up.  In cross-examination the female complainant agreed that she thought that the gun was real, and she felt that it was metal and heavy; it left a mark on her neck where it had been pushed against her.  She agreed that it could not have been a little plastic cowboy gun.  The complainants said that the whole episode occupied less than two minutes.
5. Both complainants described the offenders as being dressed in black, aged around 20 or in their early 20s, and having Australian accents.  Both complainants said that the offenders were wearing a black hoodie with the hood up and with a bandana or balaclava over the face.  Neither complainant could describe the offenders’ facial features.  The female complainant said that they had dark skin, a big build, and were taller than her.  The male complainant said that they were about the same height as him (about 6 ft), were “somewhat stockier”, and from “what I could tell” were reasonably heavily built.  The female complainant said both offenders were all dressed in black and she could not see any logos or anything.  The male complainant agreed that the offenders were completely in black; when he was asked whether there were signs of any other colour on them at all he answered, “not that I could tell”.  A police officer gave evidence that when he spoke to the complainants on 2 July 2013 the female complainant said that the offenders were “dark skinned, approximately 180 centimetres tall, both wearing black tracksuit pants, both wearing black hooded jumpers and wearing a bandana or ski mask or a motorcycle windbreak like a face mask”.  A police officer gave evidence of a police record which described the appellant as being 16 years and eight months old, 175 centimetres in height and having a slim build and olive complexion.
6. The male complainant said that after the robbery he and the female complainant ran to a nearby hotel and borrowed a telephone to call the police.  Whilst the complainants were on the phone, police officers arrived.  A police officer gave evidence that at around 11.30 pm he and another officer were waved down by the complainants near the hotel.
7. Police officers gave evidence of the results of a search of the place where the appellant resided on 6 July 2013.  Police found the male complainant’s mobile phone on the bed in the appellant’s room.  They found two black hooded jumpers in a basket at the end of the bed.  One jumper had “UFC” in white on it and the other had “Adidas” in red or orange.  A toy gun was also found in a shoebox at the end of the bed.  In another bedroom police found two pairs of black track pants, one pair with red piping and the other a Nike brand, two red and white patterned bandanas, and a black and orange patterned bandana.  The toy gun was tendered in evidence.  It was not shown to the complainants when they gave evidence.
8. The appellant gave and called evidence.  The appellant said that he went to a party at a house in Currumbin at about 8.20 pm on 2 July 2013.  He found out about the party on Facebook; it referred to an “open house party”. He had arranged to meet a friend, at the party but the friend did not go.  The appellant did not know anyone at the party.  He overheard a man asking a few girls if they wanted to buy a phone.  He looked at it and bought it for $150.  The appellant did not know the man who sold him the phone.  He described him as a “tall, white, older bloke” with a tattoo on his neck.  The appellant said that once he got the phone he used it.  He put his SIM card in it.  He turned the phone on, it had one per cent charge in the battery and it turned off after five minutes.  He caught a taxi to Burleigh Heads and went to his friend’s house on Currumbin Creek Road.  He met his friend and charged the battery.  The appellant then said he used the phone from just after midnight, when the battery was charged.  He denied that he was involved in the robbery of the complainants.
9. In cross-examination, the appellant was asked to identify the time when the man offered to sell him the phone.  He answered:

“It was around about 10.30.  No.  Actually, it was a bit later.  I don’t know.  I didn’t have a look.  I didn’t look at the time.”

10. The appellant agreed that he did not ask the man where he had got the telephone from.  The appellant was not interested and just wanted to buy it for $150.  The appellant could not recall the address or whereabouts of the house where he bought the phone, except that it was in Currumbin Valley a kilometre or a few hundred metres past the rock pool.  The prosecutor put to the appellant that he did not know the name of the man who sold him the phone.  The appellant replied that his name was “Daniel Dylan” and he was from Tweed.  The prosecutor put to the appellant that in evidence-in-chief the appellant did not nominate who sold him the phone.  The appellant said that it was in his statement.  The prosecutor put to the appellant that he had said, “I didn’t know the male who was selling it”.  The appellant said that he did know his name and it started with D; “I know his name started with D.  Daniel or Dylan.”  When the prosecutor suggested that the appellant thought that he had bought the phone at about 10.30 pm, the appellant replied that it was a bit later than that, it was “around about nearly 11” because the appellant arrived at his friend’s place “about just after 12” at which point the appellant charged the phone.
11. The appellant’s friend gave evidence that he recalled a time in 2013 when a party was advertised on Facebook sometime after his birthday in mid-June.  He arranged to meet the appellant at the party at about 10.00 pm.  He did not go because the appellant rang him and told him that it was not worth going.  The appellant subsequently arrived at his house with a new phone which the appellant charged.  In cross-examination he could not remember the date of the party, who was having the party, or the address of the party (other than that it was at Currumbin Valley).  He had not kept a copy of the Facebook invitation to the party.  The appellant had not asked him for a copy of it.  He said that the appellant arrived at his place at roughly 11.00 pm.  He had no idea where the appellant was before then.

Ground 1: the verdict of guilty was unreasonable and against the weight of evidence

12. This ground of appeal requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether upon the whole of the evidence it was reasonably open to the Court to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged.^[1]  If the Court harbours a reasonable doubt about the appellant’s guilt, it will only be where the jury’s advantage of seeing and hearing the evidence can explain the jury’s different conclusion that the Court may decide that no miscarriage of justice has occurred; if, after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a verdict based upon that evidence.”^[2]
13. Under this ground of appeal, the appellant emphasised that neither complainant identified the appellant as one of the offenders; there were differences between the complainants’ descriptions of the offenders and the appellant’s description; the clothing found by police and shown in photographic exhibits differed from the clothing of the offenders as described by the complainants and neither complainant was asked to comment about the photographic exhibits; the toy gun in evidence differed from the complainants’ description of the gun used by one of the offenders and neither complainant was asked to comment about the toy gun in evidence; and the appellant’s account about how he came into possession of the stolen phone was supported by the evidence of the appellant’s friend.  The appellant argued that it was not put to the appellant’s friend that his evidence was untrue or mistaken, so that his evidence should be more readily accepted.^[3]  The appellant argued that the Crown case did not exclude a reasonable hypothesis consistent with innocence that the appellant came into possession of the phone in the way he described in evidence.  The appellant argued that the other circumstances relied upon in the Crown case were not probative of the identity of the appellant as one of the offenders.
14. I accept the respondent’s argument that it was reasonably open to the jury to find the appellant guilty upon the whole of the evidence.
15. The jury, having seen and heard the appellant giving evidence, were in a better position than is this Court to assess his credibility and the reliability of his account.  At least on paper the appellant’s evidence seems unpersuasive.  His evidence about the party and his purchase from a stranger of a mobile phone was very vague and general, and what the jury could regard as equivocations and inconsistencies in cross-examination also could be taken into account.  In these circumstances, it could not be said to have been at all unreasonable for the jury to reject the appellant’s account in its entirety.
16. Assuming both that the party mentioned in the evidence took place on the night the offences were committed and that the appellant attended that party, the appellant’s friend’s evidence did not support the appellant’s account that he acquired the stolen phone at the party.  That is so because the appellant’s friend could not give any admissible evidence, and he did not give any evidence, that the appellant was in fact at the party when the offences were committed or at any time after they were committed.  Furthermore, whilst the appellant’s friend said that the appellant rang him and told him not to bother going to the party, the appellant’s friend did not specify the time when that conversation occurred, and his evidence that he had planned to meet the appellant at the party at 10 pm makes it seem more likely that the conversation occurred before rather than after 10 pm.
17. Indeed one aspect of the appellant’s friend’s evidence was capable of supplying some support for the Crown case.  The appellant’s friend’s evidence was that the appellant arrived at his house with the phone at roughly 11.00 pm.  The evidence in the Crown case which suggested that the offence occurred shortly before 11.30 pm (see [6] of these reasons) seems likely to be more reliable than the appellant’s friend’s estimate.  The jury could accept the appellant’s friend’s evidence that the appellant arrived with the phone at roughly 11 pm on the footing that it was an honest estimate and that the word “roughly” allowed for a margin of error of up to about 30 minutes.  If so, the jury could regard that as a further ground (in addition to the grounds mentioned in [15]) for rejecting the appellant’s evidence that he did not arrive at his friend’s house until after 12.00 pm and for finding that the appellant was in possession of the stolen phone within a very short period of time after the offences were committed.
18. The jury could therefore conclude that there was no explanation in the evidence, consistent with the appellant’s innocence of the charges, about how the phone came to be in the appellant’s possession within about 30 minutes, or an even shorter period of time, after it was stolen.  In Bruce v The Queen^[4] the High Court held:

“Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused.  Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation.  It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enable the inference to be drawn.”

19. The particular inferences which could be and should be drawn fell to be decided in the context of all of the circumstances upon which the Crown relied in proof of its circumstantial case against the appellant.  As to the relevant circumstances, it is true, as the appellant argued, that there were some apparent differences between the complainants’ descriptions of items found in the bedroom occupied by the appellant and the appearance of those items in photographs tendered in the Crown case.  Such variations are to be expected in a case where the complainants were surprised, aggressively confronted and assaulted and where the events occurred very rapidly.  The same circumstances might reduce the weight which could be attributed to their evidence.  Another factor diminishing the weight to be attributed to some of the circumstances is that many of those items are likely to be found in many family homes.  Even so, some weight could be attributed to the appellant’s possession not long after the offences were committed of items which generally accorded with the complainant’s descriptions of each item of clothing worn by the offenders and of a toy gun which closely matched the descriptions given by the complainants of a gun brandished by one of the offenders.
20. The most significant item is the toy gun.  The toy gun accords with the male complainant’s general description of the gun he saw.  More importantly, it closely accords with the female complainant’s description of the gun pointed at her by one of the offenders in four respects: first, the toy gun has the appearance of a pistol of a bygone era; secondly, in all but the grip it is generally silver in colour; thirdly, it has “a little bit of a rectangle on the top of the barrel…”; and fourthly,  the length of the gun from the muzzle end of the barrel to the handle is about 20 centimetres. (As to the last point, an additional four or five centimetres is added to the overall length of the toy by the handle and adjoining part between it and the barrel, but the female complainant’s evidence was that she did not see the grip.  That is unsurprising; it is likely that the handle was invisible to the female complainant whilst the gun was held by the offender.  Thus her estimate of 20 centimetres seems a very accurate estimate of the toy gun’s length.)  The combined effect of those four points makes it seem that the gun described by the female complainant bears a quite remarkable similarity with the toy gun found in the appellant’s room.
21. The toy gun is light.  Even without handling the toy, a close inspection reveals that it is a toy made of plastic and is unlikely to be very heavy.  But from a metre or so that is not at all obvious.  The plastic is rigid.  Bearing in mind the complainants’ evidence that they were threatened with what they were obviously meant to think was a real gun, their evidence that they believed that a metal gun was pressed against their necks is readily understandable even if that gun was in fact a toy gun made of rigid plastic rather than metal.
22. There is one point in the female complainant’s description which could be regarded as differing in a material way from the appearance of the toy gun.  There is a solid disk of silver coloured hard plastic which blocks all but a small part of the muzzle of the barrel, the diameter of which is about 1.5 centimetres.  There is only a very small circular hole in the centre of the disk, it is possible to look only a very short distance into the barrel through that hole, and the inside of the barrel seems dark rather than silver.  Thus the female complainant’s evidence that she saw silver when she looked into the mouth of the gun barrel does not accurately describe the muzzle of the toy gun.  It must be borne in mind though that my description is based upon a close examination conducted without any distractions.  This discrepancy could reasonably be regarded as insignificant in light of the small hole in the centre of the muzzle and the strong impression of a silver colour created by the silver colour of the barrel and of the disk in the muzzle, especially when regard is also had to the female complainant’s evidence of her unfamiliarity with guns and the very stressful circumstances in which she found herself.
23. The trial judge brought to the jury’s attention the matters upon which the appellant relies as weaknesses in the Crown case, including the answers by the complainants in cross-examination to the effect that they believed that the gun used was definitely not a toy gun.  The trial judge directed the jury, that:

“in a circumstantial case such as this one, 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 can be drawn from the circumstances.  If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty.  And this follows from the requirement that guilt must be established beyond reasonable doubt.”

24. Primarily because of the evidence of the appellant’s possession of the stolen phone very shortly after the commission of the offence, and also taking into account the presence in the appellant’s bedroom of a toy gun with a remarkably close resemblance to the female complainant’s description of the gun pointed at her and (less significantly) items of predominantly black clothing which resembled the offenders’ clothing as described by both complainants, it was reasonably open to the jury to conclude that, notwithstanding the evidence of the appellant and his friend, the prosecution had proved beyond reasonable doubt that the appellant was guilty of the offence.

Ground 2: that the appellant was impermissibly cross-examined as to why he had not revealed to investigating police the manner in which he had come into possession of the stolen mobile telephone

25. The second ground of appeal concerns the following passage in the cross-examination of the appellant:

“Right.  You don’t know whose [house] it was though?---I know whose house it was.  It was an open house party on Facebook.

Don’t have the Facebook invite for us, do you?---No.  I don’t.

Didn’t save that?---No, Sir.  I didn’t.

No, because you knew by the 6^th of July 2013 the police were investigating these robberies that had occurred at Coolangatta?---Yes, Sir.

You didn’t think at that stage to show the police the Facebook invite to the party that you supposedly went to?---No. It didn’t come to my head to do it.  No, Sir.

Did it come into your head to do it within a week after knowing police were investigating these robberies?---No, Sir.

So the party that you were supposedly at on the night of these robberies which had a computer generated invitation – you didn’t think to advise the police of that?---No.  I didn’t.

Didn’t print out that invite at all?---No.

Didn’t bring the Facebook app up on your phone and show them, hey, look, this is the party that I was at at the time?---No, Sir.

You’re just making it up, aren’t you, Mr FAH, that you were at this party?---No, Sir.

Can I ask you, why didn’t you print out the Facebook invite and show the police?---Didn’t think of it.  Didn’t come to my head to print out Facebook - - -

Because you know that you’re being charged with two very serious offences?---Yes, I do, Sir.

And on your version you were four suburbs away at a party?---Yes.

Which there was an invite for?---Yes.

Which you had on your phone?---Yes.  It was an open house invite, Sir.

Never showed it to police?---No.

No.  That’s because you weren’t at the party?---I was, Sir.”^[5]

26. That evidence was given at about 2.30 pm on the second day of the trial.  The trial judge summed up to the jury between about 3.45 pm and 4.18 pm.  When the jury retired to consider their verdict, defence counsel asked the trial judge to remind the jury of the directions concerning reasonable doubt and that those directions encompassed the fact that no person was under an obligation to tell the police officer anything in relation to an offence and no inference could be drawn by the exercise of that right and nor could it lend weight to the prosecution case.  The jury was brought back and the trial judge gave the following directions:

“Now, first things first: there was one thing that I’ve been asked to just briefly point out to you.  You heard [the prosecutor] talk to you about the fact that Mr FAH didn’t tell police anything about the party at the time when he was picked up.  Under our law, there isn’t any obligation on anybody when they’re picked up by the police to give them an interview.  Under our law, they have a right to silence and, in fact, you might find that most solicitors worth their salt might advise clients not to speak to our police even if they have an innocent explanation that they wanted to provide.  And so you can’t use the fact that he didn’t speak to police as evidence against him.  It is for the prosecution to prove the case beyond reasonable doubt.”

27. The jury continued their consideration of the verdict on the following day and returned the verdict of guilty shortly after 1.00 pm

The parties’ arguments

28. It was common ground in the parties’ submissions that no adverse inference could be drawn against the appellant from his failure to show to police what the appellant said was a Facebook invitation to the party he said he attended, or to advise police of the invitation:

“To draw such an adverse inference would be to erode the right of silence or to render it valueless”, and “that incident of the right of silence means that, in a criminal trial, it should not be suggested, even by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt … Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable … the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence.  Such an erosion of the fundamental right should not be permitted.”^[6]

29. The appellant argued that the clear effect of the cross-examination was to challenge the appellant’s credibility in relation to his explanation about how he came into possession of the phone by eliciting admissions that he had not earlier given that explanation to police; the explanation amounted to the real issue in the trial, so that “to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment.”^[7]  The appellant acknowledged that the re-directions to the jury were appropriate but argued that they were insufficient because they came after the conclusion of cross-examination, the addresses, and the entirety of the summing up; the directions were therefore too little too late, and the trial miscarried in a way which could not be remedied.  The appellant argued that it was relevant that the prosecutor’s conduct in asking the questions was deliberate and that those questions were seriously inappropriate.^[8]  The appellant argued that the court should take into account the seriousness of the admission of the inadmissible evidence, that it occurred in cross-examination of the appellant, and the likely ineffectiveness of the much later directions to overcome the impact of the error.  The Court was obliged to decide for itself whether the result of the error was a risk of a substantial miscarriage of justice.^[9]
30. The respondent argued that there was no evidence before the jury of any conversation between the appellant and police, that the passage to which objection was taken was short.  The prosecutor was legitimately entitled to suggest that the appellant’s account was a recent invention, to ask whether the appellant had a copy of or access to the invitation to which he referred in his evidence, and to explore what efforts, if any, the appellant had taken to obtain it or preserve it for provision to the court.  The respondent conceded that the additional suggestions in the cross-examination that the appellant should have told the police about the invitation or supplied police with a copy of it were inappropriate.  The respondent argued that those suggestions were limited to only three questions in the passage of which the appellant complained.  The respondent argued that it in any event the trial judge’s directions to the jury cured any misconception which the jury might have held about the issue, such that the impermissible questioning and the inadmissible evidence had no impact upon the verdict.

Consideration

31. The prosecutor’s questions about the Facebook invitation at the beginning of the relevant passage of cross-examination were permissible, but the balance of the passage, commencing with the question about the respondent’s knowledge that police were investigating the robberies, was inappropriate and designed to elicit inadmissible evidence.  I do not accept the respondent’s submission that only three of those questions were impermissible.  From the prosecutor’s first question about the police investigation, the whole point of that passage was to invoke the appellant’s failure to tell the police about the Facebook invitation or show the police the Facebook invitation as a way of impugning the credibility of the appellant’s explanation about how he acquired the stolen phone.  That explanation by the appellant was at the heart of the real issue in the case.
32. It also must be borne in mind, however, that this passage of cross-examination formed only one of the prosecutor’s challenges to the explanation.  More substantial grounds of challenge lay in the surprising vagueness in the appellant’s evidence and inconsistencies exposed in cross-examination, the circumstance that upon the evidence of the police and the complainants the mobile phone was not stolen until shortly before 11.30 pm when the appellant’s evidence and his friend’s evidence was that the appellant arrived with the phone at his friend’s place at about midnight or 11 pm, and the discovery at the appellant’s residence of a toy gun very closely resembling the female complainants’ description of the gun pointed at her and of clothing which generally resembled the clothing described by the complainants.
33. Defence counsel did not apply for the discharge of the jury and the trial judge gave the re-direction which defence counsel sought.  That was the last direction the jury heard before returning to consider their verdict the following morning.  The trial judge’s directions to the jury that they could not use the fact that the appellant did not speak to police as evidence against him and that it was for the prosecution to prove the case beyond reasonable doubt were strengthened by the trial judge’s statements that no-one was obliged to be interviewed by police, that there was a right to silence of the law, and that “most solicitors worth their salt might advise clients not to speak to our police even if they have an innocent explanation that they wanted to provide”.  Weight must be attributed to the trial judge’s evident view that the re-direction was sufficient to avoid any miscarriage of justice.^[10]  Having regard to the strength of the re-directions and the time when they were given to the jury, no sufficient ground appears for departing from the usual assumption that the jury acted on the trial judge’s directions.^[11]
34. For these reasons I am persuaded that the impermissible cross-examination of the appellant and the resulting admission of inadmissible evidence did not occasion the risk of a substantial miscarriage of justice.

Proposed order

35. I would dismiss the appeal.
36. PHILIPPIDES JA:  I agree with the reasons of Fraser JA and with the order proposed.
37. BOND J:  I agree with Fraser JA.