FEDERAL COURT OF AUSTRALIA Clarke v The Queen [2000] FCA 807 Fox v General Medical Council [1960] 3 All E R 225 CDJ v VAJ (1998) 197 CLR 172 PETER SURYA CLARKE v THE QUEEN A 101 of 1999 GALLOP, RYAN and WHITLAM JJ CANBERRA 26 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 101 of 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: PETER SURYA CLARKE Appellant AND: THE QUEEN Respondent JUDGES: GALLOP, RYAN and WHITLAM JJ DATE OF ORDER: 26 JUNE 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal against convictions be dismissed. 2. The appeal against sentence be allowed to the extent that the sentence imposed for the offence of assault occasioning actual bodily harm is set aside. 3. In substitution therefor the appellant be sentenced to three years imprisonment to be served concurrently with the sentence for armed robbery. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 101 of 1999 DISTRICT REGISTRY ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: PETER SURYA CLARKE Appellant AND: THE QUEEN Respondent JUDGES: GALLOP, RYAN and WHITLAM JJ DATE: 26 JUNE 2000 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT 1 This is an appeal against convictions and sentence on one count of armed robbery and one count of assault occasioning actual bodily harm. On the first count, the appellant was sentenced to seven years imprisonment and on the second count to five years to be served concurrently with the first sentence. The learned trial Judge fixed a non-parole period of two years to date from 26 December 1998. 2 It is not disputed that the appellant entered the premises of the Westpac Bank at Petrie Plaza, Civic in the Australian Capital Territory at approximately 2.30 pm on the afternoon of 23 November 1998. He there wrote on the back of a withdrawal slip the words "listen, give me $10,000, cash or this person's life is your responsibility". He then approached from behind a female customer, Ms Amie Fitzgibbon, who was depositing on behalf of her employer money in cash and cheques. As Ms Fitzgibbon was dealing with the teller, the appellant grabbed her from behind, extending his right arm over her shoulder and held a knife to her throat. As Ms Fitzgibbon turned to obtain a view of her assailant, the knife scratched or cut the left side of her neck. A further scratch or cut was inflicted when the appellant reached forward to place on the teller's counter the withdrawal slip containing the demand to which we have already referred. The appellant had earlier made an oral demand of the teller to "give me the money" which had been reinforced by Ms Fitzgibbon's saying, "he's serious". The teller, Ms Wilson, noticed blood coming from a wound on Ms Fitzgibbon's neck and moved from her teller's station to activate the hold-up alarm. Ms Wilson then walked to the desk occupied by her supervisor, Ms Jeffrey, and advised her of what was happening. Ms Jeffrey then moved to Ms Wilson's teller's station. As she arrived there, she noticed the written demand and heard the appellant say to Ms Fitzgibbon words to the effect "I'm sorry, I didn't mean to hurt you". The appellant then said to Ms Jeffrey "just give me the money". Ms Jeffrey started to count out money which prompted the appellant to say, "just give me what you've got". Ms Jeffrey then passed to the appellant some loose notes and "flats" of ten notes each of various denominations. She estimated that she passed over about $200 in $5 notes, $200 in $10 notes, $400 in $20 notes and about $1,000 in $50 notes. The appellant then put the knife into a bag which he was carrying and left the Bank premises taking the money which had been passed to him by Ms Jeffrey. He was followed at a "respectful distance" by a male employee of the Bank, Mr Southwell, who observed him get into a taxi on London Circuit. The taxi then left the area and, after first directing the driver to proceed to Belconnen, the appellant changed his instructions and asked to be taken to Canberra University where he left the taxi. 3 On the next day, police executed a search warrant at premises at Hawker where the appellant was then living and found a green bag containing a knife in a plastic container and a cardboard backing on which the knife had apparently been mounted when originally purchased. About $1,800 in cash was found in a briefcase and the police also found in a suitcase, amongst a large collection of other documents, a Commonwealth Bank passbook which recorded that a cash deposit to the credit of the relevant account had been made on that day, 24 November 1998. 4 The appellant did not dispute the occurrence of the events which we have just recounted. His defence was that he had committed the actions attributed to him as a result of duress applied by four men whom he encountered in the vicinity of the Bank. The appellant gave evidence that, in November 1998, a charge against him of assault on two girls near Hornsby in New South Wales in about July 1998 had been dismissed by a Magistrate on the basis that he had no case to answer. Before the dismissal of those charges, the appellant said, an unidentified man had accused him in August 1998 at the Belconnen Interchange of having assaulted a 15 year old girl and had struck him on the jaw. On two earlier occasions, the appellant said, the same man had insulted him in crude sexual terms. 5 As well, the appellant claimed to have been punched and injured at the Private Bin nightclub on 25 October 1998. He reported that incident to the police and considered that his complaint had been insufficiently investigated. The police, he said, explained their inaction by saying that his assailants were the same people "who shot up the police station at Lakemba". Constable Whitaker and Detective Constable Johnsen denied any knowledge of a statement to that effect having been made to the appellant. 6 The appellant's recollection of 23 November 1998 was that he was accosted by four men all significantly larger than himself and wearing predominantly sporting clothing. They surrounded him and reminded him of the incident at the Private Bin by asking "Peter, how did it feel being beaten up?" They also said, the appellant claimed, that he was well known to them and pointing in the direction of the Westpac Bank, that they wanted him to go to a bank and do an armed robbery. According to the appellant, when he adverted to the possible presence of security guards, he was told if he saw them to "ask for permission ..... Tell them you're going to do this." Then, the appellant claims, the men gave him the knife in a plastic scabbard and mounted in a cardboard carton and instructed him to put it in his bag. It was the same knife, he says, which he later used in the robbery. On the appellant's version, one of his assailants then hit him on the back of his head as "an indication that they're quite serious" and he was told that they knew his family was in Tasmania and threatened that "next time", he would not just be beaten up, but "they'll use a weapon - I'll be stabbed." Finally, in this context, the appellant testified that the men told him to go and pushed him gently into the Bank. 7 The appellant then said that, after entering the Bank, he followed two security guards and said to them "I'm going to do a robbery", to which one of them replied "okay". As he acknowledged, the appellant then carried out the robbery as described by the Crown's witnesses. 8 By his Notice of Appeal as amended by leave on the first day of the hearing of his appeal, the appellant, who appeared in person, relied on the following grounds: "(a) Appeal on convictions/verdict by jury (i) the jury's verdict was unsatisfactory, unsafe and unsound. (ii) the conduct of the trial perceived objectively in its totality has caused a serious miscarriage of justice or a substantial wrong has occurred. (iii) evidence consistent with the testimony of the appellant which if accepted is corroborative of the appellant's defence and/or testimony at the trial, also affecting the veracity of certain Crown witnesses was not presented at the trial and/or unfairly or unlawfully suppressed at the trial and sentencing. (iv) the trial judge erred in failing to give proper directions to the jury. (v) the trial judge failed to highlight the inconsistencies of certain Crown witnesses evidence to the jury. (vi) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory and unjust because of the negligence or impropriety of the Australian Capital Territory Director of Public Prosecution in failing to produce to the Court or jury all the relevant evidence and/or obtain all the relevant evidence and/or disclose all the relevant evidence to the defence. (vii) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory unjust because of the negligence or impropriety of the Australian Federal Police to conduct proper investigations to obtain all the relevant evidence and/or disclose all the relevant evidence particularly when these matters were raised by the defendant in various Court proceedings. (viii) the verdict of the jury and judgment of convictions entered into on that verdict was unsafe, unsatisfactory and unjust due to ineffective legal representations. (b) Appeal on sentence (i) the sentences imposed by the trial judge was and is manifestly excessive so as to manifest errors of law/fact/principle. (ii) the trial judge failed to properly exercise his discretion in the imposition of the said sentences in accordance with law. (iii) the sentences imposed by the trial judge was and is against the evidence and the weight of evidence." 9 In his attack on the jury's verdict the appellant concentrated essentially on matters which he said had been improperly introduced into evidence or had been wrongly withheld as a result either of breaches by his own legal representatives of their professional duty or some misfeasance on the part of the police or the prosecuting authorities. Some of these matters can be disregarded without further examination because, as explained by the appellant, they went to the credibility of the testimony of Crown witnesses whose evidence he ultimately accepted as truthful. Appeal against conviction 10 In essence, the appellant contends that the jury did not have available to it all the evidence which would have tended to support the principal features of his exculpatory account of events which were his intimidation by four unknown men and the permission or consent which he claimed had been given to him by security guards inside the Bank to proceed with an armed robbery. The testimony of the Bank employees who gave evidence tended against the presence of security guards in the premises when the appellant entered but was not uniformly emphatic. Ms Wilson under cross-examination by Mr Everson of Counsel for the appellant testified as follows: Mr Everson: "Have you ever seen security guards in the Westpac Bank whilst you've been there?" Ms Wilson: "Yes." Mr Everson: "They're not employed by Westpac though are they?" Ms Wilson: "No." Mr Everson: "But clients of the bank, commercial clients of the bank often arrange for security guards to accompany the takings from a business and for them to be deposited at the bank?" Ms Wilson: "That's correct." Mr Everson: "Is that a common occurrence?" Ms Wilson: "We do have a couple of clients that use that service." Mr Everson: "Right. And they use either Brambles or Armaguard, don't they?" Ms Wilson: "And there's another firm, MIL I think it's called." Mr Everson: "MIL, all right. Now, what I want to suggest to you - I'm going to suggest to you something that - this man, the accused in the trial says happened on the day and that is that whilst this robbery was going on there were two guards in the bank in that area. What do you say to that proposition?" Ms Wilson: "I didn't see them." Mr Everson: "Right, you also didn't see Mr Clarke leave the bank though, did you? Ms Wilson: "No." Mr Everson: "When you tell the jury that you didn't see the security guards do you mean by that that you deny that there were any there or do you mean that, "Well they could have been there but I didn't see them?" Ms Wilson: "They could have been there but I didn't see them." 11 Ms De Veau, who prosecuted for the Crown, asked Ms Jeffrey in the course of her evidence-in-chief about the possible presence of security guards. That passage of evidence was in these terms: Ms De Veau: "Ms Jeffrey, aside from the alarm button that can be activated by tellers and aside from the security camera, do you have any guards that are employed by the bank? Ms Jeffrey: "No, ma'am." Ms De Veau: "Are there occasions where there would be guards coming into the bank?" Ms Jeffrey: "There are other occasions, yes." Ms De Veau: "And do they come into the bank to accompany large deposits?" Ms Jeffrey: "Some are, yes." Ms De Veau: "What other circumstances?" Ms Jeffrey: "Our cash delivery." Ms De Veau: "How often does that happen?" Ms Jeffrey: "Our cash delivery? It happens twice a week." Ms De Veau: "And those - what companies do those guards normally work for?" Ms Jeffrey: "Brambles." Ms De Veau: "What about the other ones that would accompany the cash deposits?" Ms Jeffrey: "Brambles and Armaguard." Ms De Veau: "Do those guards that come to your bank on those occasions usually wear a uniform?" Ms Jeffrey: "Yes, they do." Ms De Veau: "Are there any guards that you know of that come to your bank that don't identify themselves as guards or don't wear uniforms?" Ms Jeffrey: "I'm not aware of any." Ms De Veau: "Are you familiar with all of the guards that have that role in coming to your bank?" Ms Jeffrey: "I'm familiar with a few of the Brambles' gentlemen but the Armaguard gentlemen, no, I'm not." Ms De Veau: "What about by way of recognition in terms of, "I've seen him before and he's got a uniform on, I know who he is"?" Ms Jeffrey: "Yes, yes." Ms De Veau: "Did you see any guards during the time that the armed robbery was being conducted?" Ms Jeffrey: "No, ma'am, I didn't." Ms De Veau: "Either inside the bank building or outside it? Ms Jeffrey: "No, ma'am, I didn't." Ms De Veau: "What about in the 15, 20 minutes beforehand?" Ms Jeffrey: "No, I can't say that I was aware of any security guards in the branch. Not that they were there, I don't know, I didn't see them." .................. ................... Ms De Veau: "Did you see any security guards outside the building?" Ms Jeffrey: "I wasn't looking for any, but no, I didn't see any." 12 The only cross-examination of Ms Jeffrey on the possible presence of security guards was directed first to the possibility of their having entered or left through a door on the left leading to a foyer which gave onto a lift. She replied: "I believe that they would not be able to be let in there because there is an alarm code on that door to the bank and you'd have to have a special alarm code to get into the bank." 13 Ms Jeffrey's cross-examination concluded with this passage: Mr Everson: "You told the jury in your evidence-in-chief that there are security guards that make a cash delivery twice a week?" Ms Jeffrey: "Yes, sir. Mr Everson: "You can indicate to his Honour if you think the answer to this next question may impact upon the security arrangements at the bank, but does it happen at the same time every day?" Ms Jeffrey: "I don't wish to answer that sir." Mr Everson: "All right. Well, was there a cash delivery on the day of the robbery?" Ms Jeffrey: "There would have been, yes." Mr Everson: "Do you know what time it was? Ms Jeffrey: "To tell you the truth, no, but it's usually of a morning." Mr Everson: "Okay. Is your evidence concerning the security guards to this effect? First of all, you didn't see any security guards at or about the time of the robbery?" Ms Jeffrey: "No, sir, I didn't." Mr Everson: "And secondly, there could have been some there but you didn't see them?" Ms Jeffrey: "Yes, that could be quite the case." Mr Everson: "Do security guards go behind the counter into the area where the bank employees are situated? Ms Jeffrey: "Only on cash delivery or cash taking away." 14 In re-examination Ms Jeffrey indicated that if security guards had been making a cash delivery at the time when the security cameras were operating they would not have been photographed because they would have been out of camera range unless walking into or out of the Bank. 15 Ms Kininmonth, the manager of the Petrie Plaza branch of the Bank gave this evidence-in-chief: Ms De Veau: "Did you see any security guards in the area of the bank?" Ms Kininmonth: "No, not where I was sitting." Ms De Veau: "I understand it's the normal practice that security guards would accompany a cash delivery to the bank?" Ms Kininmonth: "That's right." Ms De Veau: "Had there been one that day? Ms Kininmonth: "I couldn't recall." Ms De Veau: "Do you recall whether there was one around the time of the armed hold-up? Ms Kininmonth: "At the time I wasn't aware that there was one, I think there may have been some delivery or collection, I'm not sure, that's not actually an area that I manage solely, so I couldn't say." 16 Ms Kininmonth was not cross-examined in relation to security guards. 17 Mr Southwell, the operations supervisor at the Petrie Plaza branch of the Bank, said that he observed the appellant from the time when he entered the Bank's premises and recalled that he "appeared to be by himself and interacting only with the customer and the two staff in front of him" and had no contact with any other person before leaving the Bank. Mr Southwell was cross-examined about his evidence at the committal hearing in April 1999 when he said that, at the time of the incident on 23 November 1998, he was not aware of the presence on the Bank's premises of any security guards. His cross-examination on that matter concluded with this passage: Mr Everson: ".....And then over the page Mr Clarke asks you this question "Because you saw the defendant who appeared to be filling in a form at the counter as we described in photograph number 4 of the Australian Federal Police and still you didn't see any security guards?" and then you answered this way, "I think at the time they walked in we may have just had a clearance or something. Brambles or Armaguard may have been leaving". Who were the "they" you were referring to?" Mr Southwell: "It may have been the security guards that do cash runs from time to time at the branch." Mr Everson: "So where you've said, "I think at the time they walked in" you're referring to some security guards, were you?" Mr Southwell: "I would have been, yes." Mr Everson: "The next answer that you gave was, "I didn't take particular notice of regular occurrences". Do "regular occurrences" or by that answer and your reference to "regular occurrences" did you include in that the presence of security guards in the bank?" Mr Southwell: "That would be what I consider a regular occurrence, yes." 18 After re-examination about the possible presence of security guards, the learned trial Judge sought to clarify Mr Southwell's evidence and the transcript records this exchange: His Honour: "I'm afraid, Mr Southwell, I'm somewhat confused about times, so I wonder if you could help me. The matter that Mr Everson put to you seemed to involve some questions about did you remember seeing some security guards there at the time the robbery occurred or shortly thereafter and you had apparently told the magistrates, "no" or that you didn't recall it or something. Then at a later stage you said, "I think at the time they walked in", are we talking about the same time or are we talking about some other time?" Mr Southwell: "Okay, well, let me clarify. [At] the time of Mr Clarke's questioning I got a little bit confused myself. However, what had happened was at the time of the robbery, and if we are talking about at the time of the robbery, no, I do not and do not recall seeing any security guard of any description at the branch at that time. When pressed at the committal hearing as to whether there were any security guards present, there were at some stage that morning security guards come in and that was prior to that and I suggested at the time that they may have been there. No, I don't specifically recall seeing them. I didn't pay that much attention to their being there because it is quite common, but I am quite certain that at the time of the robbery and certainly as Mr Clarke was leaving I saw no security guard either in the branch or outside of the branch. When pressed as far as whether they were there or not, look, they may have been there when he first walked in. At some stage that morning I recall some sort of a delivery, drop off, collection, but whether it was when Mr Clarke was there at the beginning or whether it was prior to that, I'm not too sure, as again, I didn't pay that much attention to that at that time." 19 In support of his contention that the jury had been denied relevant exculpatory evidence, the appellant tendered as further evidence on the appeal a body of documents which were marked for identification. It is convenient to examine each of those documents in order to evaluate their effect on the appellant's appeal against conviction. 20 The documents marked "MFI 1" contained a letter from the Director of Public Prosecutions ("DPP") advising the appellant's Legal Aid solicitor that no photographs were taken by a security camera in the Bank premises before the hold-up alarm had been activated. The same collection of documents contained a memorandum dated 26 March 1999 in which Ian Corey, the Security Manager for Brambles Security Services advised that a delivery had been made to the Petrie Plaza Branch of the Westpac Bank between 2.18 pm and 2.23 pm on 23 November when two of that firm's employees were recorded as having been on the premises. That record was in the form of a running sheet kept for the delivery trucks for that day by a third crew member. 21 The first photograph which the security cameras had taken after the hold-up alarm had been activated recorded the time as 2.27 pm. Had the Brambles Security Service record been admitted into evidence, it would have tended to establish that the security guards had been present in the Bank for five minutes but had left before the appellant commenced the robbery. An attempt was made on behalf of the Crown at the trial to introduce that record into evidence through Detective Constable Johnsen but Counsel for the appellant objected to its reception. The relevant passage from the transcript of the trial records: Ms De Veau: "Constable Johnsen, overnight you made some further inquiries in relation to this matter? Const. Johnsen: "Yes, I did." Ms De Veau: "You made some inquiries with Brambles Security?" Const. Johnsen: "Yes." Ms De Veau: "You understand that they sent a team to the bank twice on 23 November 1998?" Const. Johnsen: "Yes." Ms De Veau: "Once in the morning?" Const. Johnsen: "Yes." Ms De Veau: "And a further team of three people attended the bank that afternoon?" Const. Johnsen: "That's correct." Ms De Veau: "You understand that one man remained in the car?" Const. Johnsen: "In the truck." Ms De Veau: "In the truck?" Const. Johnsen: "Yes." Ms De Veau: "And the other two security guards entered the bank?" Const. Johnsen: "Yes." Ms De Veau: "Do you understand that they have a process where they log in and log out to their control centre by radio?" Const. Johnsen: "My understanding is that the third person in the truck maintains a log of times arrived, time departs from the bank, or from their destinations." Ms De Veau: "And have you been advised that on the afternoon of 23 November.....? Mr Everson: "I object, your Honour. This is hearsay. This is what someone who is not giving evidence has told this constable." His Honour: "I think that is right, is it not, Ms Crown?" Ms De Veau: "It is, your Honour. At this, however, it is the best evidence and if it is objected to I cannot press it, but I take it no further." 22 That passage makes it clear that a conscious decision was made on behalf of the appellant to exclude evidence which would have fixed with precision the times between which two security guards were present in the Bank. Doubtless, that was done because it was perceived to be more advantageous to the appellant to preserve the uncertainty created by the other evidence as to whether the presence of any security guards coincided with the entry of the appellant and the commission of the robbery. 23 The documents marked "MFI 2" and "MFI 3" comprised respectively a report of a psychological assessment of the appellant dated 2 June 1999 by Ms Barrelle, a clinical psychologist and a report dated 21 June 1999 from Dr Lucas, a psychiatrist, addressed to Mr Craig Everson, who was then Counsel for the appellant. Those reports were apparently referred to the learned trial Judge during a pre-trial consideration of the appellant's fitness to plead. There is nothing to indicate that they were introduced into evidence or otherwise brought to the notice of the jury. The only reference to the appellant's mental health in the course of his Honour's charge to the jury was in the context of the defence of duress and was favourable to the appellant. His Honour said: "Now, I should explain to you that the mental health of the accused is not an issue in this trial save to the extent to which the accused state of mind may be relevant to the issue of whether he committed acts constituting the offences set out in the indictment as a result of the threat made by these people that he says were outside the bank. The mental health or state of mind of the accused is not relevant to the alternative formulation of would a person of ordinary firmness have yielded to the threats in the way that he did? That is an objective test based upon your understanding of what - or your judgment, I should say, of what you think an ordinary member of the community of ordinary firmness of mind would have done in the circumstances, or in particular, whether such a person would have yielded to the threats in the way that the accused did?" We do not regard either of these reports as assisting the appellant's appeal against conviction. 24 The document marked "MFI 4" is a transcript of a bail application on 10 December 1998 by the appellant before Higgins J. It contains evidence by Detective Constable Johnsen in the form of a summary of the circumstances of the alleged offence at the Westpac Bank. That summary diverges in some minor respects from evidence given at the trial. Counsel for the appellant at the trial, advisedly we consider, did not seek to make use of those discrepancies in the course of cross-examination. In the context of the defence as it was conducted as a whole, cross-examination on those lines would not have assisted the appellant. 25 The document marked "MFI 5" is a transcript of a further application by the appellant for bail which was heard by Higgins J on 23 April 1999. That has been pointed to by the appellant on appeal as containing an assertion by him that his actions at the Bank had not been voluntary or intentional and as foreshadowing his case, which he believed would be corroborated by evidence from the security cameras, that two security guards had been present in the Bank at the time of the robbery. The appellant was not cross-examined at trial to the effect that his account of having been accosted outside the Bank by four men was a recent invention. Rather, the whole account was challenged as inherently implausible. Although it was put to the appellant that the account was fabricated to sustain a defence of duress, that was said to have occurred upon the appellant's realising that the police had his fingerprints and a sample of his handwriting on the note of demand. In these circumstances, self-serving statements by the appellant after the event and before trial would not have been admissible to fortify his defence; see eg Fox v General Medical Council [1960] 3 All E R 225 at 230. 26 The application for bail on 23 April 1999 was stood over generally with liberty to restore it to the list on not less than 24 hours notice to the Crown. It was relisted before Higgins J on 9 June 1999 when the psychiatric report from Ms Barelle discussed in para 23 above, was put in evidence. The document marked "MFI 6" is a transcript of the hearing on 9 June 1999. In the course of that hearing, the appellant foreshadowed that before his trial he would issue a subpoena to compel production of what he called a "videotape". There is no independent evidence that any security camera in the Bank made a video-recording, as distinct from a series of still photographs, of the events of 23 November, although Higgins J in an obvious reference to the still photographs loosely referred to the "video". In the course of the same hearing, the appellant outlined part of his prospective defence as being that his actions were not voluntary and articulated his concern to establish the presence in the Bank of two security guards. In the course of his submissions to Higgins J, the appellant said: "..this case is one of the most peculiar armed robbery cases ever. Now, it might not matter coming up from me but from your Honour's experience, as well as the learned prosecutors experience, nobody would commit an armed robbery on video camera without any attempts to cover or conceal his identify or his face. No armed robber of my calibre, given the fact that the affidavit has stated what my qualifications are, would have done it that way. It is not irrational. It shows that - it points out that there are certain things that the prosecution does not know so far that we are not going to disclose yet until the trial and I am very keen to present this at the trial, that the law is not heavily favourable towards the prosecution. ........ I intend to go to trial and basically try to prove that I am not this kind of person. Evidence from the psychological report has shown that I am not a violent person. ....... .......I had no suicidal intentions. I feared for my safety." For the reasons explained in para 25 above, those pre-trial statements by the appellant would not have been admissible as part of his defence. Nor did they foreshadow clearly or at all the alternative defence of consent arising from the security guards' alleged approval of the appellant's intimation that he was about to commit a robbery so as to make it incumbent on the Crown as a matter of fairness to call evidence from those security guards. As we perceive it, that alternative defence emerged for the first time after the Crown had closed its case and in the course of the appellant's evidence-in-chief. 27 The document marked "MFI 7" is a transcript of proceedings in the Magistrates Court on the 19, 20, and 21 April 1999 after which the appellant was committed for trial. It contains a reference to the report by the appellant of having been assaulted at the Private Bin nightclub, but the veracity of that report was never put in issue at the trial and, in any event, as we have already explained, evidence of previous consistent statements at the committal proceedings or otherwise were inadmissible at the appellant's trial. 28 A transcript of a hearing on 5 March 1999 again before Higgins J on an application for bail was marked "MFI 8". In the course of that hearing duress was foreshadowed as a defence and it was suggested that the appellant had been shown to be "highly reluctant" in committing the offence. The same transcript records character evidence testifying that the witnesses did not regard the appellant as a "person who would willingly and voluntarily commit such an offence." Presumably as a result of a conscious decision of the appellant and his advisers, no character evidence to that or any other effect was adduced at trial. The transcript of 5 March 1999 does not assist the appellant's attack on his convictions. 29 A transcript of a pre-sentence directions hearing on 31 August 1999 contains a reference by Mr Everson of Counsel for the appellant to a possible application for leave to call fresh evidence. That proposed fresh evidence was not further identified and, if confined to the matters discussed above, would not have assisted the appellant. 30 The final document in this collection, marked "MFI 10", was a transcript of a bail application before Crispin J after the appellant had been convicted. In the course of that hearing the appellant reiterated his assertion that there had been two security guards on the premises "when the whole thing happened". However, the only evidence bearing on that issue which has been shown to have been available to the appellant, was that discussed in para 20 above. That is clearly not "fresh evidence" in the sense used in the relevant authorities. The discretion to receive further evidence on appeal has been explained by the majority of the High Court in CDJ v VAJ (1998) 197 CLR 172 at 195-204. The appellant has failed to make out a case for the exercise of the discretion in this case and the tender of the documents marked for identification is rejected. 31 We have carefully examined the transcript of the learned trial Judge's charge to the jury and can discern nothing which supports the contention in ground (a)(iv) of the notice of appeal that there was a failure to give proper directions. In the course of his oral submissions on the hearing of the appeal, the appellant referred to the effect on the trial of "publicity in the media" but we consider that the following passage from his Honour's charge adequately directed the jury to disregard anything which they had seen, heard or read except in the course of the trial: "Of course, it is your duty to try the accused fairly and in accordance with the evidence. This means that your verdict must be reached by a fair and objective appraisal of the evidence presented during the course of this trial. It would be quite wrong to take into account anything that you might have read in a newspaper or heard discussed on some social occasion either about this case or about other cases involving banks. And if either or any of you are aware of any such information or allegation you must conscientiously try to put them out of your mind." 32 The appellant complained in the course of his submissions on the hearing of the appeal that his assertion that he had "deliberately created a trail leading to himself" had not been put to the jury. However, the learned trial Judge expressly reminded the jury of that assertion when he said in the course of his charge: "He [Counsel for the appellant] also relies very heavily upon the failure of the accused's attempt to hide his face, his handwriting or his fingerprints. Whatever may have been the utility or lack of utility in leaving a trail or failing to conceal his movements Mr Everson would point out that he certainly has not done it. You would expect a well educated person with some background in law to be able to cover his tracks. He explains his failure to complain to the police in terms of his lack of trust and he points out that this is not a fact finding inquiry." 33 Nor have we been able to find in the transcript of his Honour's charge any direction to the effect that the Crown had asserted that the appellant's account of having been subjected to duress by four unknown men was a recent invention. The omission of any reference to that matter is consistent with an understanding, indicated at para 25 of these reasons, that no such assertion was made by the Crown in the course of the trial. 34 It is true that the learned trial Judge did not refer in detail in the course of his charge to the discrepancies in the evidence of various Bank employees as to whether security guards had been present in the Bank at the time of the robbery. We have fully recounted that evidence at paras 10 to 18 of these reasons. His Honour did advert to that evidence when he charged the jury to this effect: "Well, Mr Everson [Counsel for the appellant] pointed out the position of the guards. The evidence, I think, from the accused was clear, that guards were there, they came in after he had written the note, he spoke to them and told them what he was going to do and they said, "Okay". The evidence of the bank officers was that no-one other than Mr Southwell, apparently, saw guards. Mr Southwell's evidence was that they had come in at some stage that day - I think, in the morning and in the afternoon. I do not think he went so far as to give any evidence about whether they were there at the time or not. ...... Now, there are, remember, other matters that have been urged upon you. In particular, Mr Everson has urged upon you the proposition that this has really been a bit like a jigsaw puzzle in which some pieces were missing. We have not had all of the photographs taken by the security cameras, we have not had all of the people that may have been in the bank at the time called to give evidence. Presumably not all of the staff have been called, presumably not all of the customers in the bank have been called. If there were security guards there they have not been called." 35 Even if the view be taken that those remarks did not highlight, in a way sufficiently favourable to the appellant, the inconsistencies in the evidence as to the presence or absence of security guards, that, we consider, was adequately rectified when the jury returned after retiring to consider their verdict and asked a series of questions in relation to the effect of the evidence about security guards. His Honour responded to those questions by saying first: "Ladies and gentlemen, I will deal with your questions together if I may because they all relate to the security guards. The evidence of the accused, you will recall, was that there were security guards and he told them he was going to commit a robbery and they said okay. The evidence of the other bank officers save for Mr Southwell whose evidence I will come to in a moment, was simply that they did not see any security guards there. Mr Southwell's evidence unfortunately is somewhat contradictory and you may think somewhat confused." 36 His Honour then recounted the effect of the cross-examination of Mr Southwell by Counsel for the appellant. That cross-examination, as extensively recounted by his Honour, included references to the evidence given by Mr Southwell at the appellant's committal in April 1999. The learned trial Judge then read to the jury a large part of the transcript of the cross-examination of Mr Southwell by Counsel for the appellant, including the whole of the exchange between his Honour and the witness which has been reproduced at para 18 of these reasons. His Honour then concluded his answer to the jury's questions by instructing them: "So, you make what you will of that evidence, ladies and gentlemen. I'm afraid I can't make it any clearer than Mr Southwell expressed it. It does appear, however, that he was saying he does not remember it but he was conceding the possibility. Now, then, this morning we heard some evidence from Detective Constable Johnsen to the effect that the records of one of the security companies indicated that there had been two visits to the bank that day, one in the morning and one at some stage in the afternoon. There was an objection taken to the evidence as to when that occurred and so we simply have no idea of the time save that there was one in the morning and one in the evening. The third question, "What action has been taken to obtain proof from Brambles?" I think is that nothing further - there is no further evidence available on that issue. There was, as you would recall, some questions asked by Mr Clarke about whether security guards were there during the course of the committal proceedings in April but there does not seem to have been any suggestion that any of them were told anything about the robbery at that stage. That seems to have been a matter which first emerged in the evidence of Mr Clarke, who was, of course, the last witness at the trial. Whatever the position, I am afraid, that all of the evidence that is available in this trial you now have and it is too late to supplement it now with any further evidence. So, you will simply have to do the best you can with what evidence you have." That instruction clearly identified for the jury the inconsistencies in those parts of the evidence concerned with the presence or otherwise of security guards. When it is read together with the remarks in the body of his Honour's charge to the effect that the burden of proof beyond reasonable doubt rested on the Crown throughout and that the appellant was entitled to the presumption of innocence unless and until his guilt had been established to the requisite standard, that supplementary direction was in no sense unfair or unfavourable to the appellant. 37 As to the appellant's contention that his conviction had been rendered unsafe as a result of "ineffective legal representations", we have already referred in paragraphs 22, 24 and 28 of these reasons to unexceptionable forensic choices made in the course of the trial. It has been repeatedly acknowledged in the relevant authorities that only in exceptional circumstances will an appellate court intervene to disturb a conviction on the ground that counsel for the accused made an error of judgment, overlooked some matter or even acted contrary to the accused's instructions. The relevant principles as distilled by Gleeson CJ in Birks (1990) 48 A Crim R 385 at 392: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." We have not been able to identify any respect in which Counsel who appeared for the appellant at trial could be said to have acted incompetently. Nor are we persuaded that anything which Counsel did was contrary to the appellant's instructions which seem to have evolved over the course of the pre-trial proceedings and during the trial itself. In any event, no dereliction which could conceivably be imputed to the appellant's Counsel could have involved or caused a miscarriage of justice so as to invite the application of Gleeson CJ's third principle. 38 For these reasons, the appeal against convictions must be dismissed. Appeal against Sentence 39 The appellant did not develop in any coherent way the grounds set out in his Notice of Appeal. His principal complaint was that he had been sentenced to a term of imprisonment. 40 The trial Judge gave the most anxious consideration to the evidence of everything that could possibly be said from a subjective point of view on behalf of the appellant. It is unnecessary to restate the effect of that evidence. His Honour found that the appellant was suffering from a genuine and severe psychiatric condition, which had led him to commit the offences. 41 However, the trial Judge emphasized the seriousness of the armed robbery offence. He referred to the effect of the crimes on the three women victims, especially Ms Fitzgibbon. Significantly, his Honour said: "I accept that he had no intention of cutting her throat, but in fact he did cut her throat with the knife, fortunately not in a manner which caused her any serious physical injury, though the extent of her psychological injury can readily be appreciated." 42 The trial Judge was, in our view, bound to impose a prison sentence in all the circumstances of this case. His Honour even regarded this case as one where the deterrent aspect of sentencing was very much diminished. The maximum penalty for the armed robbery offence is twenty-five years' imprisonment. It could not, in our opinion, be seriously suggested that the imposition of a term of seven years for the appellant's armed robbery offence was excessive. 43 So far as the other offence is concerned, the maximum sentence is five years' imprisonment. His Honour did not refer to this consideration, when sentencing the appellant to just such a term. It is well settled that the statutory maximum sentence is to be reserved for the worst type of case cognizable within the offence charged. Plainly the trial Judge did not regard the offence against Ms Fitzgibbon as the worst type of assault occasioning actual bodily harm. 44 The sentencing discretion must, therefore, have miscarried, and it is necessary to determine the sentence afresh. The offence against Ms Fitzgibbon was one of considerable gravity, even if not of the worst kind. We consider that in lieu of the sentence imposed on the charge of assault occasioning actual bodily harm, a concurrent sentence of three years' imprisonment should be imposed. 45 The orders of the court therefore are:- 1. The appeal against convictions is dismissed; 2. The appeal against sentence is allowed to the extent that the sentence imposed for the offence of assault occasioning actual bodily harm is set aside. 3. In substitution therefor the appellant is sentenced to three years imprisonment to be served concurrently with the sentence for armed robbery. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. Associate: Dated: 26 June 2000 The Appellant appeared in person. Counsel for the Respondent: Mr R C Refshauge Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 8 and 9 May 2000 Date of Judgment: 26 June 2000