New South Wales Court of Criminal Appeal CITATION : REGINA v. STONES [2000] NSWCCA 341 revised - 30/08/2000 FILE NUMBER(S) : CCA No. 60554 of 1999 HEARING DATE(S) : Thursday 3 August 2000 JUDGMENT DATE : 29 August 2000 PARTIES : REGINA v. STONES, Lee JUDGMENT OF : Foster AJA at 1; Dunford J at 2; Greg James J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0223 LOWER COURT JUDICIAL Latham, DCJ. OFFICER : COUNSEL : Crown: R.D. Cogswell, SC. App: C.V. Jeffreys (Sol.) SOLICITORS : Crown: S.E. O'Connor App: C.V. Jeffreys CATCHWORDS : Criminal law - appeal - verdict asserted to be unsupported by the evidence - identification - reliability - role of jury - no basis for doubt. LEGISLATION CITED : Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Appeal Act 1912 Fleming (1998) 158 ALR 379 Giam (1999) 104 A. Crim. R. 416 CASES CITED: M (1994) 181 CLR 487 Jones (1997) 191 CLR 439 Henry (1999) 46 NSWLR 346 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60554 of 1999 CORAM: FOSTER, AJA. DUNFORD, J. GREG JAMES, J. TUESDAY 29 AUGUST 2000 REGINA v. LEE STONES JUDGMENT 1 FOSTER, AJA. I agree with the judgment of Greg James, J. 2 DUNFORD, J: I agree with Greg James, J. 3 GREG JAMES, J: The appellant was convicted on two counts after pleas of not guilty following a trial in the Sydney District Court on 19 July 1999. 4 Count one was:- "That he on 29 April 1998 at Turramurra in the State of New South Wales, being then armed with an offensive weapon, to wit, a knife, did rob John Thearle of certain property, namely, a quantity of jewellery and a sum of money." 5 Count two was:- "That he on 29 April 1998 at Turramurra in the State of New South Wales, did allow himself to be carried in a conveyance, namely, motor vehicle bearing registration number GKR 603 knowing that the conveyance was taken without the consent of Alexander Johnston, the person in lawful possession of the said conveyance." 6 The maximum penalty for the armed robbery offence was 20 years penal servitude and for the motor vehicle offence, five years penal servitude. Both sentences are now to be as understood as sentences of imprisonment consequent on the passing of the Crimes Legislation Amendment (Sentencing) Act 1999. 7 On 26 August 1999, the appellant was sentenced as follows:- "Count 1 Minimum term of four years and six months penal servitude to commence on 5 January 1999 and to expire on 4 July 2003. Additional term of two years and six months to commence on 5 July 2003 and to expire on 4 January 2006. Count 2 Fixed term of one year penal servitude to commence on 5 January 1999 and to expire on 4 January 2000." 8 The appeal is brought on the ground that:- "There has been a miscarriage of justice in that the verdicts of the jury:- (a) are unsafe and unsatisfactory as it was not upon the whole of the evidence, open for the jury to be satisfied beyond reasonable doubt that the accused was guilty." 9 Leave to appeal is also sought on the ground that the sentences imposed are, in all the circumstances, excessive. 10 The ground of appeal asserted in respect of conviction invokes s.6(1) of the Criminal Appeal Act 1912 which requires:- "… the appeal to be allowed if the court is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence … or that on any other ground whatsoever there was a miscarriage of justice." 11 Since the decision in Fleming v. The Queen (1998) 158 ALR 379 and that of this court in The Queen v. Giam (1999) 104 A. Crim. R. 416, the formula "unsafe and unsatisfactory" which does not reflect the precise bases referred to in the section, is preferably to be avoided and it is appropriate to identify the ground of appeal or basis for miscarriage with some degree of particularity. 12 The written and oral submissions of the appellant presented by Mr. Jeffreys with his customary skill and diligence, identify the basis upon which it is contended the appeal should be upheld and assert that "the jury ought to have entertained a reasonable doubt about the appellant's guilt" (Regina v. M (1994) 181 CLR 487; Jones v. The Queen (1997) 191 CLR 439). Such a submission contends that the evidence properly considered in the context of a jury's advantage at trial is inadequate or lacks credibility such as to support the verdict. Such a submission contends that an appellate court upon consideration of all the evidence would, properly directing itself, experience a doubt as to the guilt of the appellant in concluding that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. 13 It was the Crown case that a two-door Toyota motor vehicle, registration GKR 603, mustard in colour, was stolen at some time after about 6.00 pm on Saturday 25 April and before 6.00 am the following day. When the vehicle was located by police on 29 April approximately a half an hour after the robbery involved in the first count, it contained items including a knife consistent with having been used in the robbery, and also two newspapers, one dated 26 April on which was found the thumb print of the appellant and one dated 29 April. Subsequently, that vehicle (although mistakenly identified as a Datsun) was noted by a witness, Mr. Herbert, as transporting away from the jewellery shop, at which premises was committed the second of the offences charged, persons Mr. Herbert had seen running past him, he having seen them earlier in the vicinity of the jewellery shop. 14 There were in that vehicle, in addition to the objects to which I have referred, documents including an envelope in the name of David Cowan. Mr. Cowan was the subject of a theft when his bag was stolen in the Manly area on 26 April at about 2.00 pm. Subsequently, to police he identified Paul Edgar as the thief. The man, Paul Edgar was shown by photographs provided to us to bear a degree of resemblance to the appellant. Indeed, it was contended that when Mr. Thearle, the victim of the robbery, attended a line-up (which did not include the appellant) he was suspicious about a person to the end of the line of men present which person was apparently the person Paul Edgar. 15 Mr. Herbert gave evidence that around midday on a day in April 1998, while at work, he noticed two men. He described one man as about 5' 8" tall, stocky build, short dark hair, moustache and aged in his early twenties. He was wearing jeans and carrying a grey calico coloured rucksack. The other man he described as aged in his early twenties, short blond hair, and unshaven. He wore a distinctive royal blue coloured top with white marks on the sleeves, jeans and wraparound sunglasses. 16 Several minutes after first observing the two men, Mr. Herbert saw the man wearing the distinctive royal blue coloured top in a jewellers located on the upper level of the building. A few minutes later in a different part of the complex, Mr. Herbert observed the other man running with his rucksack in front of him. Mr. Herbert went to a nearby bakers and on his return he again saw the man in the distinctive royal blue coloured top. This man made a comment to Mr. Herbert regarding the time and Mr. Herbert observed his face for "a matter of moments" from a distance of less than a metre. He observed the man get into the mustard coloured Datsun motor vehicle. The man he had previously seen carrying the rucksack was already seated in the driver's seat of the motor vehicle. Mr. Herbert observed the facial profile of the man in the passenger seat before he saw the car drive off along Gilroy Lane towards Eastern Road. Mr. Herbert noted the vehicle registration number. 17 On 18 August 1998, Mr. Herbert attended Hornsby Police Station where he viewed a video of photographs. He identified the person pictured in photograph six as the taller man wearing the distinctive royal blue coloured top who he saw in the passenger side of the vehicle. The identification video and a video of Mr. Herbert watching the video were played to the jury. 18 John Anthony Thearle gave evidence that he owned Turramurra Jewellers situated at 2/1296 Pacific Highway, Turramurra. On 29 April 1998 at about 1.00 pm, a man ("the first man") came in and enquired about gold chains. Mr. Thearle spoke with the first man from a distance of 60 centimetres across the showcase. The first man was wearing navy blue tracksuit trousers, a red t-shirt with the Nike insignia at the top. 19 The first man left the shop and was next seen by Mr. Thearle about five minutes later to walk past the rear of a shop with another man, "the second man". Mr. Thearle saw both men look into the front window of the jewellers for a period of three to five minutes. Mr. Thearle said that for a period of a minute or two, he observed the face of the first man from a distance of five metres. The two men moved off after and shortly after they both returned and entered the jewellers. The first man produced a knife tucked into his trouser waist and pointed it towards him. The first man grabbed the witness and said, "where is the cash?". When the first man was unable to open the cash register, he threatened the witness with the knife. The witness opened the registry and took out $425. Following a further threat, the witness opened the safe and the first man took items from it. After making a further demand for cash, the first man cut the telephone line and the two men left. The witness estimated the men were in the shop about 10 to 15 minutes and that during some of the time he was face to face with the first man. 20 Mr. Thearle gave a further description of the first man. He added, inter alia, that the man was "about six feet tall, short copped hair, a very bony angular face, thin, he had blemishes on his cheeks, he was unshaven, sort of day, two days growth perhaps". He said his hair was "dark underneath with sort of unbleached highlights". He said his complexion was "pale, slight tan". He also gave a further description of the second man. 21 He drew a sketch of the knife used in the robbery which he gave to police. In his evidence he gave a description of the knife. Mr. Thearle viewed the video of photographs at Hornsby Police Station on 15 August 1998. He identified photograph number six as the first man. At the line up at Hornsby Police Station on 26 June 1998 to which I have referred he did not make a positive identification. 22 In cross-examination, Mr. Thearle accepted that in his evidence given at the earlier trial and before a magistrate in committal proceedings, he said that the first man was in the jewellers before the woman customer entered the jewellers. 23 Mr. Thearle stated in his examination in chief that he later observed the two men looking into the shop window from outside for a period of three to five minutes. In cross-examination, Mr. Thearle accepted that he did not make reference to this observation in his statement dated 29 April 1998 or when he gave evidence in the previous trial. 24 In his examination in chief, Mr. Thearle stated that the first man had short cropped dark hair with "sort of unbleached highlights". He described the first man's complexion as "pale, slight tan". In cross-examination, Mr. Thearle accepted that in his statement of 29 April 1998 he described the first man's complexion as being of slight Lebanese appearance. He also accepted that when he gave evidence in the committal proceedings he described the first man's hair as "dark coloured short straight hair, dark hair on his arms". 25 In cross-examination, Mr. Thearle agreed that between the time of the robbery and attending a line up at the police station, he saw people in the street who he thought may have robbed him and this made him feel "jumpy". He accepted that in the previous trial he gave evidence that he was "being jumpy, paranoid". 26 Mr. Thearle also agreed in cross-examination that when he attended the line up on 26 June, he thought it was possible that a suspect would be in the line up. He was suspicious of the person at number six in the line up because he had a jaw line that resembled one of the robbers. Mr. Thearle agreed that at a previous trial he was shown a photograph of a person on the line up. On that occasion he could not say whether or not he was the man in the line up about whom he held suspicions. Mr. Thearle asserted that the person in the photograph was not the person he had suspicions about. Mr. Thearle said that his memory had changed to the extent it had become "sharper". 27 When, at the request of police, Mr. Thearle attended the second identification procedure, the video line up, he expected to see a robber. He viewed the whole video twice and then asked to look further at picture number six, which he viewed the picture for about 30 seconds. He then viewed picture number nine for about 10 to 15 seconds. He then viewed the whole of the video again and looked at picture number six for a further 28 seconds before he positively identified the man pictured in photograph six. 28 Mr. Thearle was cross-examined about his state of mind prior to attending the video line up. He agreed that in his cross-examination at the committal proceedings and when he gave evidence in the previous trial he had admitted that he held an expectation that one of the individuals on the video would be a robber. 29 Mr. Thearle initially informed the police that one of the robbers was wearing a red coloured t-shirt with a Nike emblem. In his examination in chief he said the offender was wearing the t-shirt when he came into the jewellers prior to the robbery. He was not able to say what he was wearing at the time of the robbery. He said he was able to distinguish the colour red from the colour blue. 30 In addition, there was evidence that Mr. Thearle gave a description of offenders to police shortly after the event, describing the first man as "six feet, slim build, short copped, brown to grey hair, thin face, 30-35 years old, Australian, dark complexion, very thin face and thin nose". Mr. Thearle positively identified photograph number six as the man who robbed him at a video parade on 15 August 1998 as had Mr. Herbert. 31 In addition to the critical evidence of Mr. Herbert and Mr. Thearle, there was other evidence including from Mr. Donald Cowan at the North Turramurra Bowling Club, describing persons who, having come to that Club, telephoned for a taxi and evidence from the taxi driver who took persons from that Club to Wynyard Railway Station. 32 The learned trial judge directed the jury, as far as the robbery offence was concerned, that:- "Unless the identification evidence is reliable, the thumbprint does not take you anywhere." 33 The appellant gave evidence denying his involvement in the robbery and asserting that he had been given a lift by a man who wanted to purchase heroin to Cabramatta in the vehicle which he did not, at the time he was driven in it, believe to be stolen. 34 His account involved an assertion that the stranger had not only driver him to Cabramatta but had given him $150 cash with which to purchase heroin and that he had gone to the premises of a heroin dealer alone with the money, purchased the heroin, but on his return found that the man and vehicle had disappeared. 35 It is perhaps sufficient to say that under the test of cross-examination, his account might well have been found by the jury to be wanting. 36 As to conviction, the sole ground argued was that upon a consideration of the whole of the evidence the court should be of the view that the jury ought to have had a reasonable doubt and for that reason the convictions should be quashed. The argument appeared to be put upon the basis that unless there could be satisfaction beyond reasonable doubt that the appellant was one of the persons seen by Mr. Herbert to be entering the vehicle shortly after the robbery, then his association with the vehicle would not be sufficient to support count two in the indictment. 37 It was put expressly that, having regard to the inconsistencies, particularly in the evidence of Mr. Thearle, internally, and the inconsistency between that evidence and the evidence of Mr. Herbert, considered in the context where there was no positive identification by others, including, in particular, Mr. Cowan from the bowling club and the taxi driver; where Mr. Edgar bore such a resemblance to the accused and where there had been what it was submitted was some doubt on the line up identification attendant on Mr. Thearle's rejection of those men in the line up as having been the robbers, that the conviction could not stand. Particularly is this submitted in the context of a description of the accused given by Mr. Cowan which made note of the scar on the left cheek of one of the persons he describes and some degree of confusion attendant upon the different coloured tops and the distinctively coloured backpack that it is said the robbers had with them. 38 The court was taken in detail to the evidence. In particular, the submission pointed to the timing involved and how little time was available to Mr. Herbert to make any dependable or reliable observation, this was particularly emphasised, since Mr. Thearle's evidence was, in some respects as I have remarked, apparently inconsistent. 39 The challenge was essentially to the reliability of the evidence, not to honesty. In each case, the witness had expressed their personal view that their identification of the robber from the video pictures was "beyond reasonable doubt" or "100% accurate". 40 Whilst the appellant's account in evidence was not left to the jury as being so incredible as to amount to a lie showing consciousness of the guilt of the two offences charged, nonetheless, if it were put to one side as failing in itself even to raise a reasonable doubt, one is still left with the various accounts of Mr. Thearle and Mr. Herbert which are mutually supportive. I consider it would be in error to disregard entirely the association with the vehicle which, on the evidence of Mr. Herbert, was tied in so crucially with the robbery. Notwithstanding the submission that Mr. Herbert had in various episodes totalling five seconds, too limited an opportunity to make a reliable observation and that Mr. Thearle's evidence was unreliable because of the inconsistencies asserted, the different descriptions given within half an hour of the event to the police, the display of some doubt by him during the line up, having regard to the matters involving the clothing, an asserted willingness by Mr. Thearle to defend his description and the experience of courts that there have been, on occasions, errors in identification, I am not persuaded that the verdict in this case is attended by any real doubt. Except for one of the descriptions given by Mr. Thearle, all relevant descriptions given of the robber were entirely consistent, albeit, some features might have been omitted by individual witnesses. Mr. Herbert's account was powerful, notwithstanding the short and episodic nature of his observations. 41 Mr. Thearle was able to observe the robber for a period of some minutes. The distinction between the various descriptions given by him is only really of substance when distinguishing between Lebanese appearance and a dark complexion, dark coloured hair and brown to grey hair. The various observations and the association with the car are all mutually supportive of reliability of the witness' individual accounts. 42 The jury had the fullest opportunity to observe the evidence being given. There is no complaint as to the directions given to the jury and I do not accept that the witness' testimony in each case is impugned necessarily by the confidence attendant upon their identification individually of the same man whose fingerprint just happens to have been found on the newspaper in the stolen car. 43 I do not consider that the jury's verdict is attended by any doubt or lack of support in the evidence. 44 In my view, the appeal on conviction should be dismissed. 45 There was also an application for leave to appeal against sentence. It was contended that the sentence was manifestly excessive, having regard to the applicant having been 26 years of age at the time of the offence, and that it was his first time for sentence in the District Court. It was further contended that it was his first offence of violence if one disregarded his conviction for stealing from the person. 46 It was submitted that regard should be had to his drug addiction as at least prescribing a context which suggested a lack of prior planning. In this regard, of course, the stealing of the car and the evidence of Mr. Herbert and Mr. Thearle suggest some degree of planning on the applicant's behalf. Even for a drug addict, the robbery of a jewellery store involves some degree of planning. He apparently, to some extent, prepared for the robbery. 47 The challenge is only brought against the sentence for armed robbery. In addition to that sentence and the sentence for the offence of s.154A of the Crimes Act 1900, the prisoner had also appeared for sentence in respect of two further offences of larceny and common assault. It was in that context that her Honour came to impose the sentence of penal servitude for seven years, comprising a minimum term of four and a half years and an additional term of two and a half years, that she did in respect of the armed robbery offence. 48 She had regard to the guideline decision in Regina v. Henry (1999) 46 NSWLR 346 and, in particular, to those matters which, in her view and in the Crown's submission, properly took the appropriate sentence for that offence above those sentences to which that guideline related. There was no plea of guilty. A substantial amount was taken. The offence was committed whilst the offender was on a recognizance and the offence was committed in the light of other unlawful conduct for which her Honour was sentencing. 49 I see no error in the sentence passed by her Honour and, in any event in my view, that sentence was plainly within the range of appropriate sentences. I would grant leave to appeal on sentence but dismiss the appeal. 50 The orders I propose are: appeal against conviction dismissed; leave to appeal against sentence granted; appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.