Reported Decision : (2002) 135 A Crim R 32 New South Wales Court of Criminal Appeal CITATION : Regina v David James Dodd [2002] NSWCCA 418 FILE NUMBER(S) : CCA 60011/02 HEARING DATE(S) : 3 October 2002 JUDGMENT DATE : 11 October 2002 PARTIES : Regina David James Dodd JUDGMENT OF : Meagher JA at 1; Sully J at 2; Sperling J at 76 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/61/0061 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : W. Dawe QC - Crown I. H. McClintock SC - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant LEGISLATION CITED : Crimes Act 1900 (NSW) Festa v The Queen [2001] HCA 72 Domican v The Queen (1992) 173 CLR 555 CASES CITED: R v Sorlie [1925] 25 SR (NSW) 532 R v Taliai (NSWCCA, 11/4/97, unreported) Azzopardi v The Queen [2001] 205 LR 50 DECISION : Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed IN THE COURT OF CRIMINAL APPEAL 60011/02 MEAGHER JA SULLY J SPERLING J Friday 11 October 2002 REGINA v DAVID JAMES DODD Judgment 1 MEAGHER JA: I agree with Sully J. 2 SULLY J: Between 13 and 16 August 2001 the appellant, Mr. Dodd, stood trial before Judge Nield and a jury in the District Court at Bathurst. The appellant was tried upon a charge of having robbed, whilst armed with an offensive weapon, namely a knife, one John Weldon. The robbery was alleged to have taken place at Orange on 25 August 2000. An offence of this kind contravenes section 97 of the Crimes Act 1900 (NSW); and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. 3 On 16 August the jury found the appellant guilty as charged. He was subsequently convicted and sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months. The appellant now appeals against his conviction; and applies for leave to appeal against his sentence. 4 Nine grounds of appeal against conviction have been notified. Before dealing with them, it is appropriate to point out that it was not controversial at the trial that Mr. Weldon had in fact been robbed at knifepoint in his own home at Orange on 25 August 2000. Neither was it controversial at trial that there had been two assailants; that both had been male Aboriginals; and that one of them had been a juvenile named Brian Thomas Whitton with whom the victim Mr Weldon was well acquainted. The only issue of substance at the appellant's trial was whether or not he had been correctly identified as the other assailant. 5 The juvenile assailant was dealt with in the Children's Court. He was, as it would seem, unwilling to give evidence against the appellant; and he was not called at the appellant's trial. 6 The appellant himself gave no evidence at his trial. He made no out-of-Court inculpatory admissions; although he did protest his innocence in out-of-Court statements to the investigating police officers. There were no fingerprints, DNA samples; or other similar physical evidence capable of connecting the appellant with the robbery. Ground 1 7 The ground is: "A miscarriage of justice occurred in that the trial judge failed to adequately warn the jury of the dangers of relying on the evidence of resemblance and identification in the circumstances of the case." 8 Ten witnesses, either police or lay, were called at trial. Only two of them were crucial to the Crown case on the issue of identification of the appellant. They were the victim, Mr. Weldon, and a Miss Kerry Newman. 9 On the day of the robbery Mr. Weldon gave the investigating police a description of the older of the two assailants. Mr. Weldon described that assailant as being a male Aboriginal aged about 30 years; 5 feet 5 inches or 5 feet 6 inches in height; wearing a white cap with a peak, a black shirt, a black jumper and black track-suit pants. 10 Four days after the robbery, that is to say on 29 August 2000, the investigating police showed Mr. Weldon a compilation of 18 photographs, spread over 6 pages, of Aboriginal males. Mr. Weldon was asked whether he could identify from those photographs either or both of the people who robbed him. Mr. Weldon immediately identified the juvenile, Brian Whitton, with whom he was acquainted. Mr. Weldon continued to look at the photographs and chose a photograph as that of the second assailant. This was a photograph, in fact, of the appellant. Mr. Weldon told the police that he was 80 percent sure that the man whom he had thus identified had been the second assailant. He said that the only difference between what he saw in the photograph and his recollection of what he had seen 4 days earlier was that the person shown in the photograph had more stubble on his face on 25 August than he appeared to have in the photograph. 11 In his evidence at trial, Mr. Weldon explained his choice of the appellant's photograph in this way: "I looked through the photos and I wasn't too sure but I made sure it was him after I went through them again." 12 In his evidence at trial Mr. Weldon gave evidence identifying certain articles of clothing that were put before him by the Crown Prosecutor. Some of the clothing, thus identified by Mr. Weldon while giving evidence, had not been referred to by him in his statements given in the immediate aftermath of the robbery to the investigating police. As to these omissions, Mr. Weldon said that he had been "too nervy and shaken up" at the time, so that he had simply not recollected those particular characteristics. 13 Miss Newman, the other critical Crown witness, gave evidence that on 25 August 2000 she had driven her car, which was a blue Escort with the registration number WEB.205, to her local shopping centre. She said that while there she had been asked to give a lift to two males, one of whom was Aboriginal and the other white. She described the Aboriginal as having been skinny, about 5 feet 6 inches in height and about 25 years of age. She described the other person as having been white, plump and about 5 feet 5 inches in height. She said that the men had told her that they wanted to go to a particular address but wanted to pick up someone else at a house in Richards Place. According to Miss Newman she had driven the two men to the Richards Place address; whereupon the Aboriginal male had got out of the car and gone into the house at that address; and presently another Aboriginal male had come out and said that he would thereafter drive Miss Newman's car. This latter Aboriginal was described by Miss Newman as being male, with a shaven head, of stocky build, about 5 feet 8 inches in height, and wearing a dark track-suit. According to Miss Newman, the vehicle was driven to a house in Sir Neville Howell's Place, where one of the males got out and went inside and then came back out. The vehicle was then driven to Miss Newman's home; and the Aborginal male who had been driving the car asked if he and his companions could borrow the vehicle. Miss Newman said that they could; and having dropped her at her home, they then went off in the car, returning it to Miss Newman about half-an-hour later. 14 Having given this version of relevant events to the investigating police, Miss Newman travelled with the police to the house in Richards Place of which she had spoken in her statement. These premises were 4 Richards Place, and they were the premises at which the appellant was then living with his family. 15 On 28 August 2000 the police invited Miss Newman to look at the compilation of 18 photographs to which I have earlier referred. Miss Newman identified a photograph of the appellant as the photograph of the Aboriginal male who had driven her motor vehicle after he had been picked up at 4 Richards Place. 16 It is convenient and useful to commence the examination of the merits of Ground 1 by noting the following propositions stated by McHugh J in a comparatively recent decision of the High Court of Australia: Festa v The Queen [2001] HCA 72: "54 Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed. 55. Positive-identification evidence has often proved to be unreliable. This court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried. 56. Unfortunately, another class of evidence is sometimes called 'circumstantial identification evidence'. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence. 57 When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence." 17 It seems to me that when Mr. Weldon told the investigating police that the appellant's photograph depicted the older of his two assailants, he was making a positive identification of the accused. Mr. Weldon was telling the police, as it seems to me, that the person shown in that photograph was the person who had actively participated in robbing him at knifepoint. Mr. Weldon's initial statement that he was 80 per cent sure that such was the fact, whatever that statement might have actually been intended by Mr. Weldon to convey, does not seem to me to convert his identification into something other than direct positive identification evidence. That being so, there was a need for an appropriate direction complying with the requirements established by the decision of the High Court of Australia: Domican v The Queen (1992) 173 CLR 555 at 561-562. 18 It seems to me that the evidence given by Mr. Weldon in connection with the physical characteristics and clothing of the older of the two assailants was circumstantial identification evidence. If Mr. Weldon's evidence of characteristics and clothing were accepted, there was established thereby a body of evidence capable of being linked by other relevant evidence to the appellant in particular. It seems to me that the present case is one in which it would have been appropriate to have extended the Domican direction to embrace the evidence of Mr. Weldon as to the characteristics and clothing of the particular assailant. It seems to me that it would have been cumbersome, and potentially confusing to the jury, to have attempted too nice a differentiation between positive identification, and circumstantial identification, evidence. The practical approach of the Crown at trial was to place before the jury a composite body of evidence consisting, relevantly, of Mr. Weldon's photograph identification and of Mr. Weldon's other circumstantial identification, of the appellant. In those circumstances, it seems to me that a proper Domican direction ought to have been given in connection with Mr. Weldon's evidence. 19 The evidence given by Miss Newman seems to me to fall into a different category. Her photographic identification of the appellant did not purport to be an identification of somebody who had been a party principal to the armed robbery of Mr. Weldon. Miss Newman's photograph identification was circumstantial identification evidence so far as concerned proof linking the appellant to the armed robbery. What Miss Newman was saying was that the person depicted in the photograph was the person who had borrowed her car in the circumstances earlier herein narrated. There was other circumstantial given at trial by other witnesses to the effect that Miss Newman's car had been seen in the vicinity of Mr. Weldon's home at or about the time of the carrying out of the armed robbery. All of that evidence, too, seems to me to have been circumstantial identification evidence. None of the circumstantial identification to which I have latterly referred seems to me to have called for a Domican direction. It did call for some careful directions about the credibility of Miss Newman, but that was a matter requiring to be dealt with in a way that did not entail a precise application of the Domican principles. 20 The basic principles which were established by the decision in Domican are well known; but having regard to the way in which the present appeal was argued, it might be useful to re-state them. The basic propositions are these: "Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." [173 CLR, 561, 562] 21 Later in the joint judgment from which the foregoing quotation has been taken, there occurs a further passage, not so frequently referred to as the earlier one, but amplifying to some extent what the basic principles are intended to achieve. The joint judgment says: "………………… (T)he adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification – not by reference to other evidence which implicates the accused." [173 CLR, 565] 22 The appellant put to this Court, both in writing and orally, submissions criticising trenchantly the detail of the summing up insofar as it dealt with the identification evidence that had been adduced at the trial. The thrust of the appellant's submissions was, precisely, that the case was one in which the Domican principles had to be applied; and that what was actually said in the summing up fell very far short of doing what the proper application of those principles required to be done in the instant case. In evaluating those criticisms, this Court is, as it seems to me, necessarily at something of a disadvantage. This Court has not seen or heard the relevant witnesses. It has no way of getting any real appreciation, not only of what was actually said as recorded in the summing up transcript, but as to the way in which it was said, a consideration which might be of very great significance in a particular case. In such a context, it is always useful to remember some propositions for which there is authority of long-standing in this Court. It is useful for present purposes to advert in particular to two of them. 23 In R v Sorlie [1925] 25 SR (NSW) 532 at 539 the following principles were approved: "…………………… but in the great majority of cases where no exception is taken to a summing up at the time of its delivery it is because the counsel or the advocate for the accused, listening to it, does not detect anything unfair or misleading. The practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged." And later, in the same report: "Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice." 24 When his Honour Judge Nield came to sum up in the present case, and to deal in particular with the identification evidence, his Honour began by charging the jury in the following terms: "Now, I should tell you, members of the jury, that, although this case is primarily an identification case, there is other evidence other than strict identification evidence. Now I want to tell you something about identification evidence. Identification evidence is evidence that may be unreliable. I am not saying that the evidence in this trial is unreliable. I am saying that in an identification case, identification evidence may be unreliable." 25 His Honour then isolated, and discussed, ten factors: [1] The incidence in normal life of mistaken identification of one person by another in the street. His Honour expanded this particular point by saying to the jury: "So, that is why, members of the jury, identification evidence may be unreliable. I want you to understand that I am not saying the evidence in this case is unreliable, I am not saying that identification evidence is necessarily unreliable, I am saying to you that identification evidence may be unreliable and I am telling you, members of the jury, that because identification evidence may be unreliable, you should look at the identification evidence with great care." [2] His Honour then embarked upon a canvass of a number of particular matters to which the jury should have regard. His Honour prefaced his canvass by telling the jury this: "Now, members of the jury, there may be many factors to be taken into account when considering identification evidence. I can think of a number, counsel have referred to a number, I am sure you can think of a number. I propose to tell you some of the factors that I consider to be appropriate and proper to be taken into account when considering identification evidence. Now I do not want you to think that I am giving you an exhaustive list. If there are other factors or considerations that you consider proper to take into account, then take them into account." His Honour then drew the attention of the jury to the need to consider how long Mr. Weldon and Miss Newman, respectively, had known the person being identified. His Honour canvassed briefly the evidence in that regard; pointing out, clearly and fairly as it seems to me with respect, that neither Mr. Weldon nor Miss Newman had any substantial prior acquaintance with the appellant. [3] The length of time for which the relevant witnesses had the person being observed under observation. His Honour told the jury, clearly and fairly as I think with respect, that in the case of Mr. Weldon it was probably 15 or 20 minutes; and in the case of Miss Newman it was probably minutes rather than hours. [4] His Honour's fourth point concerned "the circumstances in which the witnesses had the person under observation" . There followed material occupying a page and a half of transcript. His Honour concentrated upon the position of Mr. Weldon. His Honour invited the jury to consider, among other things, whether Mr. Weldon's attention, in the circumstances in which he unexpectedly found himself, might not have been focused more upon the knife with which he was being threatened than upon the facial characteristics and details of the person who was doing the threatening. What his Honour actually said does not seem to me to be unfair; and its emphasis, so far as one can judge from the bare written word, was broadly favourable, rather than broadly unfavourable, to the appellant. [5] His Honour next drew the jury's attention to "the distance between the witnesses and the person being observed during the time of observation" . It was not submitted by the appellant that there was anything factually incorrect or otherwise unfair about what was actually said by his Honour in connection with this point. [6] The same can be said about his Honour's sixth point which had to do with the available light at the time of the alleged identifications. [7] His Honour next adverted to the question whether there was "anything about the person observed by the witnesses which was impressed upon the witnesses" . His Honour indicated that he would have more to say to the jury at a later point during the summing-up. [8] His Honour returned briefly to an earlier point concerning "the state of mind of the witnesses" . His Honour contrasted, briefly but clearly, the respective positions of Mr. Weldon and Miss Newman; the former likely to have been "scared, in fear of his life, you may think, at least from the point of time when the knife was shown to him"; and saying of Miss Newman that "you might think that there was no real emotional position with her" . It was not submitted that there was anything in this passage that was either unfaithful to the evidence, or unfair in its tenor. [9] His Honour briefly referred again to the matter of the length of time taken by each purported identifying observation of the appellant. [10] His Honour returned to the point concerning the comparison to be made between the description given of the assailant and the actual description proper to the appellant. As to that, his Honour told the jury, but very briefly, that they had seen the appellant in Court, and that they could easily enough decide for themselves whether his appearance matched, at least generally, the description that had been given of the assailant. 26 His Honour drew together the things that he had been saying in the foregoing points by instructing the jury as follows: "So, members of the jury, take into account those factors when you look at the identification evidence, remembering, as I have said, look at the evidence with care, great care because identification evidence may be unreliable. I want you to understand I am not saying that it is unreliable in this case, I am not saying that it is necessarily unreliable, all I am saying is that it may be unreliable and, because it may be unreliable, look at the evidence and consider it with great care." 27 His Honour then drew the attention of the jury to certain "differences in the evidence", especially as contended for by counsel at trial for the appellant. His Honour told the jury that they should consider whether it is not the case that sometimes "when different people look at the same thing they might see different things in what they see or they might remember different things about what they saw". His Honour then proceeded for some time to deal with aspects of the evidence of Miss Newman. It is convenient to return in connection with Ground 2 to the appellant's complaints about these passages in the summing-up. 28 His Honour then turned to the evidence that had been given by Mr. Weldon. His Honour referred to Mr. Weldon's age, to the fact that he had been alone in his home; and to the fact that everything "went well until something happened and he was confronted by the older man holding a knife upon him". His Honour commented: "Thereafter, you might think, his capacity to remember what was happening in the order and sequence and in clear detail might not have been as good as it might have been had he not been threatened by somebody with a knife." 29 His Honour then pointed out in a lengthy passage the differences and deficiencies, as between Mr. Weldon's description, in his first statement to the police, of his assailant, and subsequent refinements which he had made to that initial description. His Honour noted, correctly with respect, that there were in fact differences and deficiencies, and his Honour then commented in a lengthy passage which I propose to quote in detail for the reason that it was submitted for the appellant that the effect of what was said undermined "the thrust of the defence case". "Well, members of the jury, the human memory is not infallible, the human memory does not record like a computer or a tape recorder or a camera. The human memory does not record everything that is seen, that is heard, or that is done in the same order and sequence, like a computer, which stores everything perfectly for ready retrieval, or like a tape recorder that records everything on a magnetic tape that is spoken into the microphone for perfect and ready retrieval, and it is not like a camera that, when a photograph is taken, records everything within the focal length so it can be seen for evermore. The human memory is not like that at all. The human memory is fallible, the human memory jumbles up things, the human memory does not remember every little piece of thing and, if you want an example of that, just think what was the person alongside of you yesterday wearing. Now you sat alongside that person all day yesterday, and I will be surprised if any one of you can remember what the person alongside of you was wearing yesterday. You will remember what I was wearing because I wear the same uniform every day, but I bet you do not remember what the person alongside of you was wearing yesterday. Now, that is because, members of the jury, it was not important for you to remember the clothes. Now, now it was not important for Mr. Weldon to remember the larger of the two men, he knew the other one, he had been there two or three times before, he knew the other one, but it was not important for him to remember the larger of the two until he pulled out the knife. And then when he pulled out the knife, you can imagine Mr. Weldon's feeling threatened, in fear of his life, doing his best to take note of what was happening around him, to record it because he was being confronted by people who are robbing him while threatening him with a knife. He was bound to make a report to the police, he was bound to know that the police would ask him to describe these people. And he left out of his description two identifiers. He left out the older man had stubble on his face. Now it was not as though he was beared, as I am, and two of you are, or wearing a moustache, as one of you is. He had stubble on his face. He left out the fact that the right pocket of the track pants was torn. Well, members of the jury, the Crown says all that is explicable, and the Crown says in relation to the stubble on the face, the moment he saw the photograph of the accused he said, 'but then he had stubble on his face'. So, you might think, members of the jury, whether you do or not is for you to decide, even though he did not mention it on the 25th, he did so four days later on the 29th, when he saw the photograph of the accused, and it was not the photograph that he first identified, he went through them carefully, he identified Mr. Whitton first, went through the photographs, identified the accused, and said 'but he had stubble on his face then'." 30 Having read and considered the relevant portions of the summing-up, I am wholly unpersuaded that the learned trial Judge failed to do anything that was properly required of his Honour by the Domican principles. It does not seem to me that a fair reading of the entirety of the relevant passages can justify a proposition that what the trial Judge did was, effectively, to undermine "the thrust of the defence case". I do not think that the jury can have been left in any doubt of the paramount importance to the Crown case of Mr. Weldon's evidence; of the need to scrutinise that evidence with care, bearing in mind that it might well be unreliable for reasons readily understood; and of the need to take into account that there were undoubtedly differences and discrepancies which needrd to be kept carefully in mind when making a fair assessment of the reliability of Mr. Weldon's identification evidence, whether direct or circumstantial. 31 The written submissions put in for the appellant contend that "his Honour should have warned the jury of the dangers of cross-racial identification". The written submissions refer to a decision of this Court: R v Taliai [NSW CCA, 11 April 1997, unreported]. I have read the relevant portions of the judgment of Sheller JA, who delivered the principal judgment. There is nothing in what is there said to suggest that it is a fixed and immutable principle that in a case of the present character it must always be assumed that there has been some danger of cross-racial identification, with a concomitant need to given some specific directions on that topic. 32 I would not uphold Ground 1. Ground 2 33 The Ground is: "A miscarriage of justice occurred in that the trial judge failed to warn the jury of the dangers of relying on the evidence of Kerrie June Newman." 34 Miss Newman was undoubtedly a problem witness at the appellant's trial. She had a daughter, - whose whereabouts at the time of trial were unknown, - who was, at the relevant time in August 2000, very friendly with the juvenile assailant. There could be no doubting, on any reasonable view of the versions given by Miss Newman to the investigating police, that much of what she told the police was demonstrably false, and had been fabricated in an attempt to exculpate the juvenile offender from any participation in the knife-point robbery of Mr. Weldon. His Honour, as seems to me to be clear on a fair reading of what his Honour actually said on the point, twice distinctly told the jury that they might well consider that there was much of what Miss Newman had said upon which they could not safely rely. The impression that I have from the bare transcript is that the way in which his Honour expressed himself probably conveyed unmistakeably to the jury his Honour's own view that, save for one aspect of her evidence, Miss Newman was a person whose evidence could not be relied upon safely by the jury. 35 The exception to that general approach to Miss Newman's evidence was put by his Honour to the jury as follows: "Members of the jury, in so far as Miss Newman's evidence is concerned, the Crown relies primarily upon the fact that she took police to the address of the accused, 4 Richards Place. She took the police there and said that that was where she picked up the man, who you know to be the accused. The photograph of the man that she picked up there, was identified by Mr. Weldon as being one of the two armed robbers, the older of the two. The Crown Prosecutor relies primarily upon Miss Newman's evidence in so far as it relates to her having taken the police to the address at which she said she picked up the accused, who drove her car away." 36 In my opinion, a fair reading of the entirety of the relevant portions of the summing-up demonstrates that his Honour did all that was to be expected of him in the matter of warning the jury, as it was certainly necessary to warn them, of the unreliability of most of what Miss Newman had said; but focussing the attention of the jury upon that one particular aspect of her evidence which had not been shown to have been simply fabricated; and which, if accepted, gave circumstantial strength to what was, otherwise, the Crown case. 37 I would not uphold Ground 2. Ground 3 38 The ground is: "A miscarriage of justice occurred in that the trial judge failed to direct the jury as to the significance of the alleged threat by the appellant to Kerrie June Newman and as to how the jury might use the evidence in their determinations." 39 It is, once again, convenient to begin by quoting from the summing-up: "The Crown also relies upon the fact that Miss Newman said that the accused confronted her on 26 August and threatened her, and, in the course of what the accused said, he referred to bringing police around there. She denied of the accused having done that, but the fact is Miss Newman had taken police to the accused's address. The accused must have become aware of it because he confronted her on the evening of 26th and mentioned the fact to her that she had brought police around there. It is for you, members of the jury, to decide whether there was a confrontation between the accused and Miss Newman, in which a threat was made to her, and in which reference was made of the fact that she had brought police around to his address." 40 The essential contentions of the appellant are most conveniently summarised in the following extract from the written submissions of the appellant: "45 There were at least three possibilities concerning the evidence. Firstly that the incident did not take place and was part of an attempt by the witness to bolster her credibility and damage the appellant. The second that the incident did take place but that an innocent man was angered by the false allegation against him and was reacting in the manner described and the third was that the conduct was an admission as it was actuated by consciousness of guilt." 41 Miss Newman was extensively cross-examined at trial. It was not put to her, - as ought to have been done had such been the allegation, - that this particular meeting with the appellant had not taken place. Two points only seem to have been raised, and then briefly, by the cross-examiner. The first point was that the actual words attributed by Miss Newman to the appellant had not in fact been used by him. The second point was that, if the appellant had indeed used the words attributed to him by Miss Newman, then what he was saying involved so serious a threat to her safety that it was, to say the least, odd that she had not reported the meeting to the police until a couple of days or so after the meeting allegedly took place. 42 I think, nevertheless, that his Honour, having introduced at all in the summing-up the topic of the alleged meeting between Miss Newman and the appellant, ought to have given the jury some assistance as to how they might properly use that evidence. I think that it has to be acknowledged that there was a blemish in the summing-up by reason of his Honour's failure so to assist the jury. 43 The question then arises whether it is appropriate for this Court to set aside the verdict of the jury upon the basis that the particular blemish actually caused a substantial miscarriage of justice. 44 I am wholly unpersuaded that the appellant has demonstrated that there was any actual and substantial miscarriage of justice by reason of this particular blemish. I am strengthened in that view by the consideration that the appellant's counsel at trial, although asking, - albeit none too clearly, if I may say so with respect, - for some redirection or other in relation to this particular part of the summing-up, did not in any way suggest to the trial Judge that there needed to be amplifying directions that would give the jury proper assistance as to how they might use any facts found by them in connection with this particular meeting. 45 I would not uphold Ground 3. Ground 4 46 The Ground is: "A miscarriage of justice occurred in that the trial judge failed to direct the jury as to the significance of evidence that the accused had shaved and the manner in which they might use such evidence in their determinations." 47 There was evidence given in the trial by police officers who had gone to the appellant's home with a search warrant on 25 August. Part of the police evidence as to the course of their search of the appellant's home concerned the alleged finding in the bathroom of the premises of evidence that the appellant had very recently shaved. 48 His Honour told the jury very early in the summing-up that they could accept that the police had found "whiskers, the said stubble in the basin of the sink in the bathroom of the accused's home, with soap and a disposable razor there and water splashed about, because it was never suggested to [the relevant police witness] that he did not find those things". His Honour said that he would return later to this particular topic. 49 It is the case that, notwithstanding that his Honour told the jury that he would return to the topic, he did not in fact do so. This, too, was in my respectful opinion a blemish in the summing-up; but, as with Ground 3, I do not think that it could sensibly be contended that the blemish was of such a character as to entail that there was an actual and substantial miscarriage of justice at the trial. Ground 5 50 The Ground is: "A miscarriage of justice occurred in that the trial judge gave directions to the jury to ignore aspects of the defence address which were uncalled for, and inaccurate, and irreparably undermined the defence case." 51 In the concluding passages of his address to the jury, which has been transcribed and made available to this Court, the appellan'ts counsel at trial said: "You heard evidence from the police that when they attended the accused's house to execute the search warrant, he was doing a painting, an Aboriginal art work of an elder, or a mural or something. This is the same man who allegedly has done a vicious armed robbery on a 66-year-old man, come home, changed his appearance, sort of hidden his clothes and left the knife out in full view of everyone, and he's calm as you like doing a painting, some art work. Is that what you'd expect a guilty man to be doing? Not at all. If anything, it's consistent with innocence. If he'd done the offence, why would he go home? He's done it in broad daylight. There are obviously people around, witnesses. He's done it in broad daylight. You wouldn't be going home straightaway, would you? Why didn't he attempt to run when the police came to his house? There's no evidence that he's tried to run away or anything. He's just there. He's with his wife and two small children. 'I don't want my babies here while this is going on.' Fair enough. Gee, fair enough. So the wife and children leave the house and the search is conducted. Everyone's suspected of a criminal offence has a right to silence. Probably you're all familiar with that concept by T.V et cetera. David Dodd had a right not to say a word, but he cooperated with the police. He told them what he'd been doing. He also said to them, 'I've just got custody of my little fellow, just not long before'. Things are just starting to go well for him. He's going to risk all of that to do some stick-up with a 15-year-old boy for 50 bucks? Turn it up." 52 It was submitted strenuously for the appellant that the learned trial Judge had impermissibly commented as follows upon the foregoing passages: "However you must not speculate about anything and there is a big step between drawing a conclusion from proved facts to speculating about something. And let me give you an example, you were asked by the accused's counsel, 'why did the accused go home if he involved himself in the armed robbery', 'why did he not attempt to run if he had been involved in the armed robbery', 'why would he risk everything for $50'. Well members of the jury if you answered any of those questions you would be speculating. How can you possibly answer a question 'why would an armed robber go home after the armed robbery', well I can think of a number of answers to it, but everyone of them would be speculation. Why would the armed robber not attempt to run from police, well again, I can think of a number of reasons, but everyone would be speculation. And, members of the jury, as the judges of the facts you must not speculate about anything." 53 In my respectful opinion it was unfortunate, to say the least, that the learned trial Judge chose, while directing the jury as to the difference between speculation and the drawing of a rational inference, to illustrate his point by making such a use of rhetorical questions posed in the defence address. 54 It is submitted for the appellant "that there was nothing in the address of defence counsel that needed correction". Judging only from the bare written record, I agree with that submission. 55 It is submitted further that "if the trial judge were considering criticism of the defence address in his summing up he should have first consulted counsel for the defence in the absence of the jury. This course should have been adopted so as to allow – if it were appropriate – counsel to withdraw or modify any remarks himself rather than for the accused's client to suffer from his counsel's excess (if such were the case)". 56 I would not, as at present advised, accept that proposition in such bald, general terms. What is proper to be done in such matters in a particular criminal trial will always depend to some extent upon the course of that trial; the trial's atmosphere; and a prudent judgment by the trial Judge as to how any correction which is seen by him to be required can be made with the maximum of practical fairness and the minimum of practical fuss. I would agree, however, that in the circumstances of the present trial it would have been sensible for the trial Judge to have given a simple indication of what his Honour was proposing to say. To have heard counsel, might well have persuaded his Honour that the preferable approach was to choose examples not related in so disparagingly direct a fashion to rhetorical questions recently heard by the jury. 57 I think, however, that it is not possible to uphold reasonably the ultimate submission of the appellant that what his Honour said "……… would have irreparably damaged the appellant's case in the eyes of the jury by depriving his trial counsel's address of any relevant authority or credibility". I think, with respect, that such a submission vastly over-dramatises what actually happened. I am strengthened in that view by the consideration that counsel appearing at trial for the appellant did not seek any re-direction from the trial Judge. 58 I would not uphold Ground 5. Ground 6 59 The Ground is: "A miscarriage of justice occurred in that the trial judge failed to direct the jury in relation to the failure of the accused to give evidence." 60 Since the decision of the High Court of Australia in Azzopardi v The Queen [2001] 205 LR 50, this particular topic has been fraught with danger and difficulty for any Judge presiding over a criminal trial with a jury. 61 His Honour did in fact direct the jury as follows: "Now, members of the jury, his right to remain silent, as it is called, continued, it did not cease when he answered questions, it continued and it continued to today. Members of the jury, you might have wondered as to why the accused did not give evidence. Well, I will tell you. Our law does not require an accused person to give evidence, our law permits an accused person to give evidence, but does not require an accused person to give evidence. There may be many reasons why an accused person does not give evidence. I do not know why the accused did not give evidence, you do not know why he did not give evidence. I cannot speculate as to why he did not give evidence, you must not speculate as to why he did not give evidence. He has the right to remain silent in his trial. He has the right to say to the Crown Prosecutor 'you prove my guilt beyond reasonable doubt'. And, members of the jury, I want you to understand this, the decision by the accused not to give evidence in his trial must not be thought by you to suggest that he is, or believes himself to be, guilty of the offence with which he stands charged. It would be completely wrong for you to assume that or anything at all from the accused's decision not to give evidence in his trial." 62 In my opinion, those directions said all that needed to be said in the particular case. I am strengthened in that conclusion by the consideration that counsel at trial for the appellant did not seek any re-direction. Ground 7 63 The ground is: "A miscarriage of justice occurred in that the trial judge directed the jury in relation to inconsistencies in the identification evidence in a manner which assumed the guilt of the accused and thereby misled the jury." 64 The submissions, both written and oral, which were put in support of Ground 1, are relied upon by the appellant in support of this ground, also. 65 For the reasons given in connection with Ground 1, I am of the opinion that Ground 7, also, has not been established. Ground 7A 66 This ground was added, by leave, at the hearing of the appeal. The ground is: "A miscarriage of justice occurred because of the unbalanced nature of the summing-up." 67 I do not think that a fair reading of the entirety of the summing-up supports this ground. I repeat in that connection what I said previously about the complete inability of this Court to judge the summing-up otherwise than on the basis of the bare transcript of what was said. It is, I think, very significant in connection with this ground that counsel at trial for the appellant did not apply to have the summing-up withdrawn because of its perceived imbalance. The impression that I have from reading the transcript of the re-directions which were in fact sought, is that counsel at trial for the appellant was in no way diffident about asking for what he thought were appropriate re-directions. He was, from the appellant's point of view, best placed to form a judgment about the balance, or lack of balance, of the summing-up when heard in its entirety by somebody familiar with the course and atmosphere of the trial. 68 I would not uphold Ground 7A. Ground 7B 69 This ground was added by leave at the hearing of the appeal. The ground is: "A substantial miscarriage of justice occurred as a result of all of the factors outlined above and as a result of the conduct of the trial and summing-up generally." 70 For the reasons given in connection with Grounds 1 through 7A, I would not uphold this ground. The Application for Leave to Appeal against Sentence 71 The remarks on sentence are, with respect, clear and comprehensive. They itemise seventeen particular matters which were brought to account by his Honour in the course of deciding upon a particular sentence. I have read and considered the remarks on sentence. They seem to me to identify correctly all the relevant factors, both objective and subjective, in the appellant's particular case. The remarks stress, correctly, the objective gravity of the offence; and the aggravation of that gravity by reason of the fact that the offence was committed at a time when the appellant was at liberty on bail in respect of another matter; and was, as well, subject to a good behaviour bond given to him in respect of yet another matter. The appellant's criminal antecedents were extensive and bad; although it must be said that they did not involve offences of violence comparable to the knife-point robbery of Mr. Weldon in the latter's own home. Clearly, a significant sentence was called for. 72 His Honour found, correctly as I respectfully think, special circumstances. His Honour took them sufficiently into account, in my respectful opinion, when fixing a non-parole period. 73 There is, thus, no patent error in his Honour's approach to sentence. This Court cannot, therefore, properly interfere with the sentence unless it is prepared to hold that there was, nevertheless, some latent error; that is to say, that the end result achieved by his Honour shows on its face, and without more, that there was, somewhere or other, a miscarriage in the sentencing process. 74 It suffices to say that given the objective and subjective matters which are relevant to the appellant's particular case, I am wholly unpersuaded that there is any such latent error. Orders 75 For the whole of the foregoing reasons, I propose: [1] that the appeal against conviction be dismissed; [2] that leave be granted to appeal against sentence; [3] that the appeal against sentence be dismissed. 76 SPERLING J: I agree with Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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