Reported Decision : 151 A Crim R 452 New South Wales Court of Criminal Appeal CITATION : R v Jacobs and Mehajer [2004] NSWCCA 462 HEARING DATE(S) : 8/9/04 JUDGMENT DATE : 20 December 2004 JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 349; Kirby J at 355 DECISION : Appeal by Mehajer; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed.; Appeal by Jacobs; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed. CATCHWORDS : Criminal law - murder - robbery in company with infliction of grievous bodily harm - robbery in company with wounding - joint criminal enterprise - common purpose - constructive murder - conditional indemnity given to witness in exchange for evidence - consciousness of guilt - grounds pertaining to directions to jury - ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 - ss 164, 165 Evidence Act 1995 - s 18 Crimes Act 1900. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Bromley v The Queen (1986) 161 CLR 315 Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 Gilbert v The Queen (2000) 201 CLR 414 Gillard v The Queen (2003) 78 ALJR 64 Hui Chi-Ming v The Queen [1992] 1 AC 34 Johnson v The Queen [2004] HCA 15 Longman v The Queen (1989) 168 CLR 79 McAuliffe v The Queen (1995) 183 CLR 108 M v The Queen (1994) 69 ALJR 83 Markby v The Queen (1978) 140 CLR 108 Matusevich v The Queen (1977) 137 CLR 633 Osland v The Queen (1998) 197 CLR 316 Pearce v The Queen (1998) 194 CLR 610 Pollitt v The Queen (1991-1992) 174 CLR 558 R v Baartman [2000] NSWCCA 298 R v Bell (1987) 8 NSWLR 311 R v Brougham (1986) 43 SASR 187 R v Burke [1983] 2 NSWLR 93 R v Button; R v Griffen (2002) 54 NSWLR 455 R v Chen [2002] NSWCCA 174 R v Chen (2002) 130 A Crim R 300 R v Clough (1992) 28 NSWLR 396 R v Crowley [2004] NSWCCA 256 R v Crozier NSWCCA 8 March 1996 R v Downs [1985] 3 NSWLR 312 R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 R v Elliott and Hitchins (1983) 9 A Crim R 238 R v Foster (1995) 78 A Crim R 517 R v Gutierrez [2004] NSWCCA 22 CASES CITED : R v Hearne (2001) 124 A Crim R 451 R v Henning NSWCCA 11 May 1990 R v Horsey (1862) 3 F & F 287; 176 ER 129 R v JB [1999] NSWCCA 93 R v Johnston [2004] NSWCCA 58 R v Kalinowski; R v Timbury (1930) 31 SR (NSW) 377 R v King [2004] NSWCCA 20 R v Kyriakou & Ors (1987) 29 A Crim R 50 R v Leoni [1999] NSWCCA 14 R v McGarrity NSWCCA 10 June 1994 R v Mills NSWCCA 3 April 1995 R v Mohan [1967] AC 187 R v Ngo [2003] NSWCCA 82 R v Paek [1999] NSWCCA 184 R v Randell and McAlister [2004] NSWCCA 337 R v Serne (1887) 16 Cox CC 311 R v Shannon Foster NSWCCA 7 April 1995 R v Sharah (1992) 30 NSWLR 292 R v Simpson [2001] NSWCCA 534 R v Spathis and Patsalis [2001] NSWCCA 476 R v Spedding NSWCCA 11 December 1997 R v Stewart (2001) 124 A Crim R 371 R v Stokes and Difford (1990) 51 A Crim R 25 R v Surridge & Anor (1942) SR (NSW) 278 R v Tangye (1997) 92 A Crim R 545 R v Villar and Zugecic [2004] NSWCCA 302 Saraswati v The Queen (1991) 65 ALJR 402 Smith v Desmond [1965] AC 960 Tripodi v The Queen (1961) 104 CLR 1 Webb & Hay v R (1994) 181 CLR 41 Regina PARTIES : John Lou JACOBS Mazin MEHAJER FILE NUMBER(S) : CCA 2004/1902; 2004/2215 D Arnott (Crown) COUNSEL : J. C. Papayanni (Jacobs) I Lloyd QC with C Pike S Kavanagh (Crown) SOLICITORS : Jeffreys & Associates (Jacobs) S E O'Connor LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70227/02; 70074/02 FILE NUMBER(S) : LOWER COURT Studdert J JUDICIAL OFFICER : - 104 - IN THE COURT OF CRIMINAL APPEAL 2004/1902 2004/2215 WOOD CJ at CL SPERLING J KIRBY J Monday 20 December 2004 Regina v John Lou JACOBS Regina v Mazin MEHAJER Judgment 1 WOOD CJ at CL: The Appellants appeared for trial before Justice Studdert, and a jury, in April and May 2003, on three counts, charging them with: (a) The murder of Shane Cole; (b) Robbery in company with infliction of grievous bodily harm upon Shane Cole; and (c) Robbery in company with wounding of Shane Phillips. 2 Each offence is alleged to have occurred on 3 March 2000, at Colies Cafe Leumeah, of which business Shane Cole was the owner. 3 The Appellants, who had each been arrested on 15 October 2001, were convicted of all three offences. They were sentenced by his Honour on 2 October 2003 as follows: Mehajer Imprisonment for 18 years with a non-parole period of 13 years and 6 months, each commencing on 30 July 2003 for the offence of murder, and a concurrent fixed term of 5 years for the offence of robbery in company with grievous bodily harm. A fixed term of 4 years imprisonment was imposed in respect of the offence of robbery in company with wounding to commence on 30 January 2003. The effective overall sentence was accordingly one of 18 years and 6 months with a non-parole period of 14 years. Jacobs Imprisonment for 16 years and 6 months with a non-parole period of 12 years 6 months for the offence of murder, and a fixed term of imprisonment for 5 years for the offence of robbery in company with grievous bodily harm, each to commence on 15 April 2002. A fixed term of imprisonment for 4 years was imposed for the offence of robbery in company with wounding, commencing on 15 October 2001. The effective overall sentence was one of imprisonment for 17 years with a non-parole period of 13 years. FACTS Sightings in the Vicinity of the Cafe Prior to the Offences 4 It was the Crown case that the Appellants, John Jacobs and Mazin Mehajer, went to the vicinity of the cafe during the early part of the afternoon of 3 March 2000, either to case the premises, or to look for Mr Cole, who was a known supplier of drugs. Two men were seen by Kelly Rideout, from her office, walking down from Hollylea Road a laneway behind the cafe at about 1:45PM, an unusual time she said, for people to be in that area. She described them as having been 23 to 25 years of age. One she said was stocky, 170 to 175 cms in height, Italian or Lebanese in appearance, with short hair, and wearing board shorts down to the knees, a white singlet and wrap around sunglasses. The other man was also wearing shorts. 5 Later that afternoon, at about 4 PM she saw those men in the back lane again walking towards Hollylea Road, although she said that they were now accompanied by a third man. James Spry, who was with Kelly Rideout at this time, also saw these men. One he described as fairly big fellow with a Middle Eastern or olive complexion, who was about 6 feet tall, in his early to mid twenties, with black hair, and who was wearing olive green knee length shorts and a white singlet. The other two men were shorter, but he had no further recollection of their appearance. He said that he had seen these men earlier that afternoon, he thought at about 3:15 PM, walking along the road in the direction of the Red Rooster restaurant. 6 Roxanne Cassar who was with Ms Rideout and Mr Spry, also saw these men, after Ms Rideout drew attention to their presence. She similarly recalled that one of them was aged between 20 and 30 years, was about 5 foot 8 inches in height, stocky with streaked light brown hair, and wearing cargo shorts or something similar. 7 The three men were also noticed by Jeffrey Bond, the owner of a squash and tennis racquet repair business, which was located near the cafe. He said that he saw them in the laneway at about 3:30 PM. He recalled that one was wearing a singlet and looked like he had been "working out". He said that they were "pretty big", "strongish" men and thought that they looked "Mediterranean or possibly Arabic". 8 That it was Jacobs and Mehajer who had been the first two men who were seen in the area, during the early afternoon, and that it was each of them, together with an indemnified witness, Christian Painter, who had later joined them, the Crown contended arose from the following circumstances: (a) Painter's evidence that during the afternoon, Mehajer, who he knew as "Mez", had picked him up, in his car, some time after he had finished work at 2 PM, intending that they would go to the gymnasium. Mehajer introduced him to another man, who he did not know, as "John". They drove via the freeway to Leumeah, and stopped near the Red Rooster where they had something to eat. As they passed the Colies Cafe, either Jacobs or Mehajer said "nobody there yet". While waiting, he said, he made a telephone call to a friend (Darren Gough), which was fixed by call charge records to have been made at 4:17 PM. (b) Jacob's evidence at trial, firstly, that Mehajer had picked him up in his car, and had driven him and Painter to Leumeah, where they had driven past the cafe, and had then spent some time at the Red Rooster, before returning to the vicinity of the cafe; and secondly, that he had been wearing long board shorts while Mehajer had been wearing three-quarter length shorts and a T-shirt; (c) Evidence of telephone calls having been made between services used by Jacobs and Mehajer at 11:35 AM and 1:01 PM on 3 March 2000, but not thereafter; (d) Evidence of calls having been made by Mehajer to Painter's mobile at 1:24 PM, 1:25 PM, 1:31 PM, 1:38 PM and 2:46 PM; (e) Evidence that Painter's mobile phone had been used at 2:40 PM, and had been picked up by a tower which would have placed him as still being in the Bankstown area, at the time. His next call was the one placed at 4:17 PM to Mr Gough. 9 This evidence was relied upon to support Painter's evidence, and to exclude him as having been the man who had been in the company of Jacobs at the time of the first observations. It may be noted, at this stage that there was an obvious conflict between the evidence of Painter and Jacobs as to which of them Mehajer had picked up first, as to who it was who had given the directions to Leumeah, and as to who it was who made the observation "He's not there". To that conflict I will return. Mehajer, in his evidence, denied having been anywhere near the cafe, at any time, so that there was a stark conflict between his evidence and that of Jacobs and Painter. 10 In summary then, it was the Crown case that Jacobs and Mehajer had cased the premises in the early afternoon, in the expectation of robbing Mr Cole of the drugs which he kept at the cafe, and/or of the money that he would be likely to have on his person; and that they had later returned with Painter and waited for his return before implementing their plan. 11 That the premises were known as a place from which drugs were sold, and that Mr Cole was a known drug supplier emerged from evidence given by Shane Phillips, and also by Brendan Denning who had spoken to the deceased at the shop, and by phone on 3 March, with the intention of buying some marijuana and speed from him. His wife Robyn Cole said that on that day the deceased had paid $3000 to $4000 to Adam Ballard for moneys owing in respect of previous dealings, that he had purchased 8 oz of Amphetamine from him, and that he had then sold half of those drugs to a man named Dennis for $500, which he had placed in his wallet. 12 Additionally there was some evidence from Mr Cameron and Mrs Cole to the effect that after the killing, some amphetamine was found in a plastic bag on the serving counter at the cafe; and from Mr Kent and Mr Casey that the deceased had earlier that day sold something "for recreational use" in a bag to Mr Kent, who had accidentally left it at his place of work across the road from the cafe, and who had then arranged for a workmate, Mr Casey, to give it to the deceased, who was to come over to collect the package with the intention of it being returned to him. Mr Casey said that the deceased had collected the package at about 4:50 PM. Mr Phillips also said that he had been accustomed to buying cannabis from him, while Mrs Cole gave evidence confirming his drug dealing. Another witness Herbert Taru also gave evidence of seeing cannabis at the cafe, and of occasionally buying that substance from him. 13 Bronwyn Reeley who worked at the cafe gave evidence that the cafe, which was located in a light industrial complex, usually operated between about 7:30 AM and 2:30 PM, and that she had locked up that day at about 3 PM, taking with her the money from the day's sales for safe keeping overnight, as was her usual practice. The Commission of the Offences 14 Shane Phillips gave evidence of having met the deceased at about midday and of having initially planned to help him with some tiling work at the cafe. They changed this plan so that Mr Phillips could help the deceased clean out his garage, and restock the cafe with the soft drinks that had been stored in the garage. He borrowed some casual clothes from the deceased and after smoking some very poor quality marijuana, which left him unaffected, he helped to clean out the garage and to load the soft drink into the deceased's car. 15 By his estimation, they left for the café at about 4 PM after receiving the keys from Mrs Reely who had been asked to take them over to the deceased after closing the shop. Mr Phillips left his Nokia mobile phone in the middle console of the car, on top of his clothes, while he carried the boxes of soft drink into the café. The deceased, he said, had been carrying his own mobile phone which he left on the serving counter. The deceased had with him his wallet and three gold chains, which he was wearing around his neck. 16 After moving all of the boxes inside, Mr Phillips, who was standing at the door, found it being pulled from his hands and saw a man with a knife. He backed into the café. This man, he described as being a bit taller than his own height of 6 foot, muscular, with dark brown collar length hair, clean shaven, with light brown skin, and of Lebanese appearance. He was about 26 years old and wore knee length black shorts with a T-shirt and yellow singlet with a white "USA" and the number 17 printed on it. This man, on the Crown case, was Mehajer. The knife which this man carried, Mr Phillips said, had a 130 mm blade with a single edge and a curved point. 17 He was forced to the floor by this man who said to him "Don't touch the knife. I will use it". He felt the knife against his throat. He heard a lot of noise, hurried footsteps, and sounds "like things collapsing…like if something was going through a box or going through some shelves." He heard somebody ask, "Where's the money? Where's the cash?" He heard the deceased, whose voice sounded laboured as if he was in pain, say that his wallet was in the console of his car. Someone said "There's more. Where is it?" He also heard the man standing over him ask the deceased, "Where's the stash, I'm cutting your friend's throat here". 18 The man who was standing over him also asked him where the money was? He replied that he did not know, he had only come in to assist his friend for the day. He was told to crawl toward the deceased. He began to do so but froze when he reached the front counter. 19 He said that he could hear noises coming from the back of the café, which were consistent with a struggle occurring. He thought there were two or three voices. At one stage he heard the words "Yalla yalla", which in Arabic can mean "hurry up". 20 He began to get scared and tried to take a look at the deceased, but was kicked to the face. He heard someone say "No. Don't", and then realised that the assailants were leaving. He could feel blood on his face and beneath him. He saw the deceased lying on his back, in an awkward position. The deceased did not respond when he spoke to him, and he noticed that he had a cut to his face, and that his head looked to be "caved in". 21 Painter gave evidence in the trial acknowledging his presence at the cafe at the time when the robberies took place, and when the deceased and Mr Phillips were attacked. His evidence was in some respects consistent with that of Mr Phillips, and in other respects inconsistent with it. It differed significantly from the account given by Jacobs, which is summarised later in these reasons. 22 Painter claimed that his involvement had been unplanned and minimal, and that he had not used any violence, himself. 23 He said that after walking back towards the cafe from the Red Rooster, either John (Jacobs) or Mehajer had said "they're back". He saw that there was a car pulled up in front of the café. It was his account that Mehajer went into the café first, followed by John, and then by himself. Mehajer grabbed the "taller man with a goatee and black hair" (Phillips), who was made to lie on the floor. John was holding a small man at the back of the cafe, who was sitting on the ground. Mehajer gave him some car keys and told him to have a look in the car. John stood over the other man (the deceased) who was sitting on the floor towards the back of the shop. 24 He said that he went outside and took a mobile phone from the car. When he returned the two victims were in the same positions. Mehajer was at the back of the shop conducting a search, while John was standing between the two men on the floor. When one of them (Phillips) made a movement as if to get up or to have a look, John kicked him in the head and told him not to move. He heard someone say "where's your money?" and heard the deceased reply that he did not have any. 25 As Mehajer returned from the back of the café he punched the other man (the deceased) to the back of the head, with a "pretty strong" blow, which caused him to slump to the ground. He did not see him move again. 26 As they drove away there was a discussion about the phone and gold necklaces that had been taken. John had one phone, and he kept the other one, which he later gave to his girlfriend Tennelle Mitchell. He said that he did not see any knife at the scene, and that he had only seen the deceased punched once. The punch he thought had followed the kick to Mr Phillips. 27 Painter accepted in cross-examination that he had initially given an induced statement to the Crime Commission, which subsequently sought and obtained an indemnity for him. Later, he accepted, he had indicated that he no longer wished to give evidence against the Appellants, after which he and his brother were charged with an offence of perverting the course of justice. He later agreed to co operate by giving evidence. He eventually pleaded guilty to the charge of perverting the course of justice. That matter was dealt with in closed court and on 29 October 2001 he received a suspended sentence, as did his brother, in the expectation of him adhering to his agreement to give evidence. His indemnity in relation to the March 2000 offences was conditional upon him telling the truth at the trial. He denied having taken up the belief of the Crime Commission that he had only been incidentally involved and to have then woven a story around that by placing Jacobs in his shoes. 28 Mr Phillips said that after the assailants left, he phoned Scott Cameron and then the triple-0 number. The call charge records show that the call to Mr Cameron was made at 4:52 PM, and that the 000 call was made at 4:58 PM. In the various accounts which he gave to Mr Cameron and to hospital staff, he made mention of "four blokes coming out of nowhere" and of seeing a knife and gun. 29 Mr Phillips was conveyed to Campbelltown hospital where he was treated by Dr Khan. He received three stitches above his right eye and five stitches below that eye. He was also found to have sustained bruising to his head and a scratch to the Adams apple. 30 The deceased was treated by a neurosurgeon, Dr Van Gelden, who found that he had suffered a widespread traumatic subarrachnoid haemorrhage, as well as a pulmonary oedema consistent with the aspiration of vomit while unconscious. He died on 10 March 2000. In the opinion of Dr Van Gelden, as confirmed by Dr Langlois who carried out the post mortem examination, the cause of death was blunt trauma to the head. Dr Langlois also found that the deceased had suffered abrasions to the back of the head, and blocks of bruising or grazing to the body, which were consistent with impact by footwear. 31 Dr Van Gelden said that the injury to the skull, which he thought had been the cause of death, was not the sort of injury which was sustainable from a fall because of its location. Some of the injuries seen at the post mortem, Dr Langlois said, were consistent with drag injuries. 32 Mr Cameron gave evidence to the effect that when Mr Phillips phoned him he had said "Four Lebs had bashed him". When he went to the cafe he said that Mr Phillips added: "Four blokes came out of nowhere and just hammered in, they had a knife and a gun…they were kicking into Colie and they were kicking into me, that blood is mine". 33 It was later found that Mr Phillip's mobile phone had been taken from the car, and that the mobile phone, which the deceased had left on the counter, had also been taken, as had his wallet and gold chains. 34 Detective Sergeant Hamshire went to the cafe at about 8:30 PM, and examined the crime scene. He noticed that the drawer of the cash register was open, and that it was empty. There were areas of blood spattering in the premises, as well as smear patterns in which there were partial shoe impressions. Some of these impressions were consistent with the shoes of Mr Phillips. No shoes were ever obtained from Jacobs or Mehajer for comparison. Shoes obtained from Painter and from Cameron Scott were not consistent with the impressions. 35 No fingerprints or DNA evidence was obtained to link either Appellant to the crime. Mr Phillips was not able to identify any offender from any of the photographs (including one of Mehajer), which were shown to him in January 2001 by police, who had not become alerted to the possible involvement of the Appellants until about June 2000. 36 About a week after the offences police created a Comfit picture using the description which Mr Phillips had given of the man who had forced him to the floor. Mr Phillips said that the Comfit picture was about 70% accurate, but he was not happy with the hair, although he could not pinpoint what was wrong with it. 37 Mehajer, it was established, was a man of Middle Eastern appearance, in his mid-twenties, with a solid build, who was about 185 centimetres tall, and who was clean-shaven with short dark hair. 38 The time of the commission of these offences was fixed as occurring between 4:41 PM when Mr Kent phoned the deceased and 4:52 PM, when Mr Phillips phoned Mr Cameron. Recovery of the Stolen Property 39 Although the mobile phone of the deceased was recovered, his wallet and necklaces were not. There was evidence of calls being made to his phone after the robbery at 6:23 PM and at 6:25 PM from the mobile of Lisa Walker, which was in the possession of Jim Hegarty (also known as Pearce, by which name he will be referred hereafter), each of which was answered. Pearce, who was described as looking like a bikie with tattooed arms, had in fact visited the cafe during the morning of 3 March and had spoken to the deceased there. He had been asked to go to the cafe by Ms Reely to pay a Telstra bill for her. He returned later to give her the receipt. 40 There were also calls made to the deceased's mobile at 5:28 and 5:46 PM, which Denning said had been made by him. Another associate of the deceased, Paul Franklin, tried to call him on his mobile between 4:30 and 5:00 PM to inquire about the purchase of some car parts. He said that the first call was answered by someone with a strange accent, sounding like a Negro or Asian accent. Later calls were met with an engaged signal or voice mail. 41 Nathan Nilsen gave evidence of purchasing this phone from Jacobs on 10 March. He activated the phone with a Vodafone account on the following day. On 14 June 2000 a search warrant was executed at his home and the phone was found. He informed police that he had purchased it from Jacobs. Police explained to him that the phone had been stolen from the deceased. 42 There was also evidence of the recovery of Mr Phillips' phone. After it was given by Painter to Tenille Mitchell, she put her own SIM card in it. Activation began on 23 March 2000. Police discovered it during a search of Painter's home on 14 June 2000. He initially claimed to have purchased it at the Green Valley Hotel, while in the company of his brother, and a friend Neil Kohler. He later acknowledged that this account had been untrue. To the significance of his initial lies to police and to the Crime Commission concerning this phone, I will return, but it was this account, and his brother's support of it that led, later, to the pervert the course of justice charges. 43 It is sufficient, at this stage, to note that he maintained this initial lie during the first two occasions that he was examined before the New South Wales Crime Commission. When it was pointed out to him that Kohler, and the telephone call records, did not support his version, he eventually agreed to make an induced statement, and was later given the indemnity. 44 His account of events was contradicted by the evidence given by each of the Appellants, who also contradicted one another. To this I will return, although not before noting that it was the Crown case that Jacobs, when giving evidence, effectively placed himself in the shoes of Painter, so as to minimise his own involvement, and to pass the blame to Painter. Other Possible Suspects? 45 During the trial, questions arose in relation to the possible involvement of members of the Rebels motorcycle club, and of other persons such as Pearce and Brendan Denning, in the offences. It would appear from the transcript that the first suggestion of motorcycle gang involvement came in the cross-examination of Painter, by counsel for Mehajer, and that it was thereafter pursued as part of Mehajer's defence. 46 There was evidence that Pearce had been a friend of Bronwyn Reely, who worked at the cafe and who had been responsible for removing the cafe's takings at the end of each day's trading. She said that she had told Pearce, during one of his visits to the cafe, of the expected return of the deceased during the afternoon to restock the drinks fridge. Sometime after 5PM she said, she received a call from him making an arrangement to meet her at his motel. Shortly afterwards she received a call from Mrs Cole advising her of the robbery and asking her if she still had the takings. She assured Mrs Cole that she had. It may be observed that if it had been the case that the robbery had been set up by Pearce in conjunction with Ms Reely, as counsel for Mehajer suggested, it would seem unlikely that she would have said that she still had the takings. 47 In any event Ms Reely went to the motel in Campbelltown, where Pearce was staying. When she arrived there, she said there was a young man in the room who was around 25 years of age, about five foot eight inches in height, wearing a football jersey and shorts, and with brown hair. He left soon after her arrival. She saw some money on the bed. She informed Pearce of the robbery. While she was there, Brendan Denning, to whom the deceased had previously sold drugs, and his girlfriend arrived. Pearce sold some drugs to Denning, who had earlier attempted to contact the deceased to purchase some speed and marijuana from him . 48 She said that she had no knowledge of the 6:28 PM call which had been made on Lisa Walker's mobile to the deceased's mobile that evening. 49 On the following day, she said, Pearce left the hotel saying that he had to meet "Christian". She said that she did not know Jacobs, Mehajer or Painter. Later she had gone to stay with Pearce who had moved to Taree to work in a tattoo parlour. 50 Denning confirmed that having been unable to meet up with the deceased on 3 March, he had bought the drugs he wanted from Pearce that night. He said that he had tried to phone the deceased a few times. When he placed a call to the deceased's mobile, at 5:28 PM, the phone was answered by someone who was not the deceased, who said "leave your message on the fucken' voice mail". When he made further calls to this phone he heard someone, with a non-Australian accent, swear. He said that he did not know Jacobs or Painter, and denied any association with the Rebels or any involvement in the offences. 51 There was evidence of a large number of calls to the mobile of the deceased during the evening of 3 March, several of which were made by Catherine Amos who had some sort of relationship with him and who had expected to see him that night. 52 Pearce acknowledged his friendship with Ms Reely and his possession of Lisa Walker's mobile on 3 March, but denied using it to ring the deceased's mobile at 6:28 PM. He acknowledged having had an earlier discussion with the deceased about the purchase from him of some gold jewellery. He did not remember selling any drugs to Denning that night, although he recalled him visiting his hotel room with his girlfriend. He said that he had not known Denning before this night. He had no memory of the several phone calls about which he was questioned. 53 He similarly denied having been involved in the robbery, but acknowledged having been a drug dealer in the past, and to having been a nominee for the Rebels, five or six years earlier. He worked as a tattooist at a tattoo shop in Campbelltown owned by some members of that club. 54 Painter, in his evidence, denied knowing Pearce. He said that he knew of some people in the Rebels, although not personally. He had an uncle Glen Painter who occasionally rode with this club, but he did not believe that he was a member of it. 55 The possible involvement of the Rebels in the offences had been initially considered by the NSW Crime Commission, whose Assistant Director, James O'Connor, gave evidence in the trial. He agreed that before Painter had given an induced statement, he had been informed, in general terms, that the Commission had believed that he had not personally been responsible for any of the violence that had occurred during the robbery. 56 The line which was implicit in cross examination by counsel for Mehajer was that the offences were committed by someone who had inside knowledge of the fact that the deceased had planned to return to the cafe on the afternoon of 3 March 2000, at a time after its usual closure. Mehajer's case theory was built upon the evidence of the visits of Pearce and Denning to the premises on 3 March; of apparent telephone contact between Denning's phone and the phone of Lisa Walker which had been in Pearce's possession, on and after 3 March; the attendance of Denning at Pearce's motel room on the night of 3 March; the earlier contacts that day between Ms Reely and Pearce; the making of various calls from Denning's phone to the mobile phone used by the deceased that day; and a stream of phone calls made on Lisa Walker's mobile during the night of 3 March, and early hours of 4 March. Lies Told by Jacobs and Other Conduct Potentially Revealing a Consciousness of Guilt 57 Leaving aside, for the moment, Jacob's account of the events at that cafe, the Crown pointed to the lies which it was established that he told; and to the false stories which were shown to have been invented, in concert with Mehajer and with Nilsen, to conceal the alleged involvement of himself and of Mehajer in the offences. 58 First, there was evidence from Nilson to show that he telephoned Jacobs, on 4 August 2000 at 5:25 PM and asked him to come to his home as he had been taken to the "copshop" and "drilled". He rang again at 6:41 PM asking Jacobs to come over. At 7:01 PM Jacobs phoned Nilsen and suggested they go for a walk, indicating that he had Cameron (Roach) with him. 59 When Jacobs arrived at Nilsen's home, Nilsen informed him that that he had been questioned by police about the mobile and had told them that he had purchased it from him. At various stages he apologised and explained that he had believed that the phone had belonged to Jacob's "missus". Jacobs then informed him, in a conversation commencing at 7:04 PM, which was recorded pursuant to a lawfully placed listening device, that he had purchased the phone, which had been "hot", at a hotel, and suggested that Nilsen had been with him when this occurred. Jacobs asked him to tell this to the police, and observed "Fuck, I've gotta go man, I'm fuckin' gunna spew." 60 Significantly there was then telephone contact between Mehajer and Roach at 7:26 when they arranged to meet at Jacob's home, followed by a call from Mehajer to Jacobs at 8:15, asking where he lived. Later that evening police surveillance observed Jacobs, Mehajer and Cameron Roach leaving Chan's 1000 Chinese Restaurant in Casula together at about 8:49 PM. 61 On the next morning, Jacobs phoned Nilsen at 5:51 AM and arranged to drive him to work. In the car he gave him instructions as to the story which he wanted him to tell to the police. It was to the effect that Jacobs had purchased the phone from a bikie outside the Crossroads Hotel, where he had been drinking with Nilsen, and had then gone inside the hotel and sold the phone to him. Nilson in due course relayed this story to police, and to the Crime Commission, but later ceased to support it. 62 Later that day (at 3:14 PM) Nilson phoned Jacobs and said that he had told police the story, that they had made it clear that they did not believe him and that they wanted to see him again on the following Monday. Later that day (at 3:24 PM) Jacobs phoned Nilsen and said to him "Oh seriously, fuckin' stick to it, man…I fuckin' sold you the phone. I got it from the pub". Jacobs did his best to calm down Nilsen who was obviously very concerned and panicking about being accused of a murder in which he had played no part. Jacobs reassured him that he had bought the phone at a hotel. 63 On 11 August a telephone call was intercepted between Jacobs and an unknown person, in which he indicated that he was "fuckin' shitting" and "laying real low". On 14 August, a listening device installed in Jacob's home recorded him rehearsing the story that he was to tell to police (which was consistent with that which he had asked Nilsen to tell), prior to telephoning Detective Box. Later that day (at 6:22) a call was intercepted between Jacobs and a Mr Ryan, in the course of which Jacobs acknowledged that he had been speaking to police and was going to get into "big trouble". 64 On 21 August Jacobs attended Campbelltown Police Station where he took part in an ERISP. In the course thereof, he gave answers to the effect that he: (i) denied knowing or hearing of Painter; (ii) denied knowing anyone of Arabic descent, including Zaheer Sanoussi, although he later admitted knowing Mehajer when it was pointed out to him that the subscriber details in the name of Zahir El Sanoussi, for a mobile, which he had contacted, on 3 March 2000, included the residential address of Mehajer; (iii) disclosed that he had known Mehajer from the Whitlam Leisure Centre where Mehajer assisted him with swim training because of his shoulder problem, but said that he did not know where he lived or what sort of car he had, and that he did not know him socially or address him other than by the name "Mazin"; (iv) said that he had last seen him a couple of weeks previously; (v) said that he had never been to Colies Cafe and did not know the deceased; (vi) told the story which he had invented and rehearsed concerning his purchase of the phone at the Crossroads Hotel and its subsequent sale to Jacobs. He said in substance that he had purchased the phone, together with a charger, for $50 from a biker of Turkish or Lebanese appearance with a Kiwi accent, outside the Crossroads Hotel and had then sold the phone to Nilsen, after going back into the hotel. This transaction, he said, had occurred on the day of Cole's death; (vii) said that he could not explain why it was that both Painter and himself, each recipients of phones stolen in the robbery, had made common contact with phone of Mehajer on the day of the offences. 65 Police took him home after the interview, (which concluded at 7:04 PM) arriving there at about 7:50 PM. With his consent, police examined the numbers stored on his mobile phone address book, and found the number of El Sanoussi listed against the entry "Mez" (not Mazin). 66 Next there was evidence of Jacobs phoning Cameron Roach, at 7:56 PM, four to six minutes after police had left his home. Jacobs asked Roach whether he had seen "Thingo" (Mez) recently. Roach asked why? Jacobs replied: "They fuckin' traced all the numbers and all that. They've fuckin' linked me up to him, and ah Thingo that kept an eye on him." 67 The reference to "Thingo" on this second occasion would seem to have been a reference to Painter, although in his evidence Jacobs denied that this was the case. Rather, he said, he was referring to Mehajer. He was, however, quite unable to explain what he had meant by the words "Thingo that kept an eye on him". 68 Jacobs then asked Roach to "ring him [Mehajer] on another number" and to say that "I'm just the young bloke that hassles him at the gym, how to train, alright. He knows nothing else." He added "Serious, please man, cause they're fuckin' full on bro." 69 Roach said that he could not ring from where he was, so Jacobs said that he would do it himself. He then went to a service station and phoned Mehajer at 8:13 PM. In this call, which was intercepted, he said: "The coppers just went through my numbers and all Chris' numbers and your number is the only one linkin' us two up, right, just listen for a sec bro before you flip". 70 He then explained what their relationship was supposed to be, and asked that Mehajer change his name in his phone address book to "Unco Johny from the gym or something". He advised him to get rid of all his "shit" and added: They're just fully onto it, bro', they've fucken kept real low…don't my other number ring it from a pay phone". 71 He said that he was "ringing from the servo", and indicated that if Mehajer was questioned about this call, he was to say to police that "I was fucken…your sister…askin' what you wanted from Maccas". This was obviously a suggestion for Mehajer to say to police, if asked, that the call came from his sister at a McDonalds fast food outlet, inquiring as to what he wanted from there. 72 He also advised him to "fucken keep low." Mehajer asked him, during this call, whether they (the police) had mentioned his name, and he repeated the story about being from the gym and hassling him for advice. 73 At 8:38 PM Jacobs spoke to a man "Dingo" and indicated that he had been to the cop shop, and that "its not good at all man. I go down". At 8:39 PM he phoned another man "Chubbsy" and again indicated that he was in trouble, and made some reference to Nilsen. 74 On 22 August 2000, Nilson spoke to Jacobs and inquired how he had gone, to which he replied "not too good but I fuckin' got by". On 24 August 2000 he rang "Mark" and discussed selling his bike and indicated that "I'm getting locked for sure, bro. It's not good". 75 On 15 September 2000 Jacobs also said to Roach, in an intercepted telephone call, that it was "not looking good" and that he felt like "leggin' it to New Zealand", and that they (the police) wanted to do him for conspiracy to murder. When Roach remarked that "it can only be a conspiracy if they know who it is", he replied: "yeah, it doesn't matter man, I'm fucked." 76 In cross-examination he acknowledged having considered leaving the country, but denied that it was because he was guilty of the offences. 77 On 4 October 2000 Jacobs spoke to "Danny" and indicated that he might be going to gaol, but didn't know how he was going to go yet. On 18 October 2000 a conversation was recorded via a listening device between Roach and Jacobs, between 6:25 PM and 6:31 Pm in the course of which Jacobs discussed the police investigations and at one stage said. "They know it. They talking about Mez and the drugs and everything man…they're gunna try and hammer him…and fuck us as well". At another point, he said "Christian's gone for sure…they've got him in it everything they've got him fifty metres…from the place, I think he's fucked." 78 The listening device captured a further conversation between Roach and Jacobs between 9:15 PM and 9:45 PM in the course of which there was the following exchange: Jacobs: I wonder if Christian's going to fucken break man and say yeah fuck I did it? Roach: What? Jacobs: I reckon he will man, they've got more on him than me. Do you know who they think it is, I'll tell you now man, they think it's Mez and Chris, they only think two people went in the shop. 79 At another point he added, again obviously referring to his appearance before the Crime Commission: "I said things differently…then corrected meself to, not making look like I lied…you know what I mean". He also indicted that he had said that he did not know Christopher, and that when he heard mention of a blonde haired man "It broke my heart man". In this regard it was the fact that Jacobs had blonde hair. Later he said: "I wish the prick didn't die man…I'm going to break man. I'll go Mezin…you just feel like runnin' man, fucken leave and go man. If I had enough money I would". 80 In a conversation recorded between 10.00 PM and 10:15 PM he said "…if I do get charged for it, then I'm going to say…who stole the phones and shit" and "…I reckon they're, might have fucken, … trying to get Mez and then, Chris. Then get Mez and then whatever he tells them." 81 On 25 October 2002 Jacobs spoke by phone to an unidentified male in the course of which he remarked that Nilson was going to the Crime Commission that day and that he expected him to be "a dog". 82 In yet another conversation with Roach, on 6 November 2000, captured by listening device, he said "the problem is he bought it from my house, the phone… from my house, then he went and told 'em we got it up the pub, and they want him to say that he wasn't up the pub when I bought it…think he's going to fucken' go on their side now and fucken' shaft me". 83 The police were able to establish, through the intercepts and call charge records, the fact of regular phone communications between Jacobs and Mehajer from 14 June onwards. Notwithstanding the caution which had been given by Jacobs to Mehajer during their conversation on 21 August 2000, only to communicate by pay phone, the telephone records show that they had spoken to one another by phone, on 23 occasions between the end of September 2000 and the beginning of May 2001. 84 In cross-examination at the trial, Jacobs accepted that he had phoned Roach on 9 August 2000 (in a conversation that was recorded at 7 PM), after learning that Nilsen had informed police of obtaining the deceased's mobile phone from him, and that he had said to him: "If anything happens I'm gunna get someone to fucken' go and give him [Nilsen] a good hiding." 85 He also agreed that he had been intercepted rehearsing the story which he had planned to give to police in relation to this phone, and additionally, that he had lied to them in the ERISP about the nature of his relationship with Mehajer. Lies by Mehajer and Matters Potentially Revealing Consciousness of Guilt 86 Painter gave evidence of having spoken to Mehajer at the Miller Shopping Centre in relation to the evidence which he had given to the Crime Commission concerning the mobile phone, which he had obtained in the robbery. Earlier, he said, Mehajer had asked him if he still had the phone and explained that the man who he (Mehajer) had hit on the head had died. That had occurred, he said, about two weeks after the robbery. 87 After telling Mehajer what he had said to the Crime Commission, at the time of his second attendance, and reporting that he had been shown photographs of Mehajer he indicated that Mehajer had encouraged him to "stick to" what he had been saying, about where he had obtained the phone. 88 Mehajer acknowledged in cross-examination at the trial the fact of, and the terms of, the intercepted telephone conversation between himself and Jacobs at 8:13 PM on the night of 21 August 2000 previously mentioned. He accepted that he knew that Jacobs had been interviewed by police that day, but denied that there had been any arrangement that Jacobs would report back to him after the interview with police. He suggested that he did not know what Jacobs had been talking about in this conversation, but agreed that he had not asked him what he meant. 89 He claimed that it was his nature to listen and not to ask many questions. A somewhat different impression might however be discerned from the many telephone calls between Mehajer and Jacobs from September 2000 onwards. 90 He also denied that Jacobs had been inviting him to communicate in the future by pay phone, to keep a low profile, or to give police a false explanation for this call. 91 Mehajer was interviewed by police in an ERISP on 17 November 2000. In the course thereof he said that he: (i) had met Jacobs at the Whitlam Centre swimming, and that while he had been to his house three or four times he did not know where he currently lived and did not socialise with him; (ii) had not spoken to Jacobs over the telephone for more than a month and did not know whether he had his current phone number; (iii) knew Painter, but had never spoken to him, or to Jacobs about the police investigation into the murder, or about the mobile phones that had been stolen; (iv) had never been in the vicinity of Colies Cafe, and had no involvement in the offences which had been committed there; (v) was able to speak Arabic fluently; (vi) would describe Painter as being about 21 to 22 years of age, stocky, with blonde hair, white skin and about 5 cm shorter than his own 185 cm (a description which would have been totally inconsistent with that given by Mr Phillips of the man who had initially seized and then stood over him); (vii) could not recall the purpose of the calls which had taken place between himself and each of Painter and Jacobs on 3 March 2000. 92 He agreed, in cross-examination, that his answers to questions 163, 168 and 170, concerning whether or not he had spoken to Painter and Jacobs about the offences and the police investigations, had been untrue. He said that he had said what had been recorded to protect Jacobs and Painter; although he also asserted, at one stage, that while at this time he had believed that Painter had been involved in the offences, he had not held that view in relation to Jacobs. He accepted that his evidence in chief to the effect that he became aware of police interest in him only when highway police had pulled him over, on the day of his ERISP, had not been correct, although he denied that it had been a deliberate lie. 93 He also accepted that he and Roach had helped Jacobs to move his house on 4 August 2000 from Casula to Minerva Place and that he had lied when telling the police that he did not know where Jacobs currently lived. 94 He also acknowledged that he had phoned Jacobs' mobile just after 1 PM on 3 March 2000, and that there had been six calls to Painter's mobile from his mobile, that afternoon. He could not explain why there had been five calls in succession, and he did not accept that the sixth call at 16:29:33, which was unanswered, had been an accidental redial. He suggested that during the period between that call, and the time of the next call at 17:36:33, he had been training at the gym. Although he indicated that he had signed in at the gym, there were no records available to prove or disprove his attendance there on the afternoon of 3 March 2000. He thought that he had signed in, on the occasion of this visit, but could not explain why he had told police in his ERISP that he had "just walked in". 95 As elsewhere noted there was evidence of regular telephone conversations between Mehajer and Jacobs from 28 September 2000 onwards, the terms of which were only consistent with them being close friends and socialising well beyond training and gymnasium related activities. Jacob's Case 96 It was his case that he had been present at the cafe, but that he had not had any prior knowledge of any robbery being planned and had taken only a minor part, having been unaware that he was participating in a robbery. He denied knowing Pearce, Denning or Ms Reely but acknowledged knowing Mehajer and Roach. 97 He said that he had been a good friend of Mehajer for six months or so before the offences and that Mehajer helped him with his training at the Whitlam Centre, where they had first met. He was working as a construction steel fixer on 3 March 2000, and usually finished work at 2 PM. 98 After finishing work that day, he said, he went home, having arranged to meet Mehajer to go out and to have a meal later. When Mehajer arrived he went out to his car, where he was introduced to "Chris" (Painter) who was sitting in the front seat. He was told that they were going to Campbelltown because Chris had to pick up some money. 99 He said that Painter directed Mehajer to Hollylea Road Leumeah, where Colies' Cafe was located. As they drove towards the cafe, he said that Painter instructed Mehajer to slow down and then said "He's not there. We'll get something to eat down at the Red Rooster until he's back". They went to the Red Rooster and then drove closer to the cafe. He said that Painter and Mehajer left the car while he stayed in his seat. Then, he said, he left the car and went to look for a pet shop which he had remembered being in the complex, from an earlier occasion when he had worked on a job nearby. 100 On the way to the pet shop, he said that he heard yelling from Colies' Cafe. He looked through the window and saw one man lying on the ground and Painter throwing punches at another man behind the counter, as he was retreating. He said that he could not see his friend Mehajer, so he ran into the cafe. He saw a smaller man (the deceased) lying on the floor in the corner, and a large man (Mr Phillips) lying on the floor near the entrance. Painter who was standing between these men, instructed him to "watch these two guys" and then ran out the door. Painter, he said, returned with his hands full of things after half a minute or so. He said that when Mr Phillips started to get up, Painter said to him "What the fuck are you looking at?" and kicked him in the face. Jacobs said "He's hurt". Mehajer came out and asked "what are you going on about?" 101 Jacobs said that as he began to leave, Painter told him to grab the phone so he seized the phone which was on the counter. He did not know whose it was. On the way back to the car, he said that he remarked to Mehajer "your mate's a fucking idiot", to which Mehajer replied "tell me about it". They got into the car, followed by Painter. He said that he handed the phone to Painter. He also said that Mehajer apologised to him. He claimed to have been in the shop, himself, for only a minute. 102 When they arrived at his home, he said that Painter passed him a mobile phone and said "Here keep it. It's the guy's". He could not explain why he took it, but said that he later gave it to Nilsen, who had previously purchased a phone from him, which was found not to be working properly. He acknowledged having later asked Nilsen to lie to police about Jacobs having acquired the phone at the Cross Roads Hotel. 103 He denied having answered any incoming calls on the deceased's mobile on 3 March, specifically those made by Denning and Paul Franklin, or from Lisa Walker's mobile. He denied having known Denning, Ms Reely, or Pearce and also denied having any personal involvement or connection with the Rebels motorcycle club, although he disclosed that his father had once been a member (before he was born). He said that he did not see a knife at the cafe. He also claimed that the reason for not telling the police or the Crime Commission what had occurred was because he was not a "dog". He said that he had lied about the phone because he did not want to go to gaol (for receiving a stolen phone) and about his relationship with Mehajer because he did not want to "dob him in", and wished to minimise their relationship. 104 He indicated, in his evidence, that he had been wearing board shorts, while Mehajer had worn three quarter length shorts and a T-shirt. He also asserted that he had no relationship with the Rebels beyond seeing them occasionally at the Cross Roads Hotel where he had a part time job. Mehajer's Case 105 It was Mehajer's case that he had not been present during the commission of the offence and that he had nothing whatsoever to do with it. Rather, he had been training at Ace Fitness at Liverpool. As previously mentioned he raised through cross-examination, and otherwise, the possibility of some of the witnesses having had connections with the Rebels Motorcycle Club, giving rise to an inference that the offences had been committed by unidentified club members. 106 Although no documentary evidence was available either to support or contradict his claimed alibi, there was some evidence called in his case (from Justin Law) to show that the Appellant's hair, at the relevant time, had been cut short. Photograph 2 in Exhibit 9 was nominated as depicting a similar hairstyle. 107 He gave evidence of training at gyms in the Liverpool area, and of passing on training information to others, as he had an interest in diet regimes and weight training. Among the persons he was helping were Painter and Jacobs, neither of whom he said had been good friends in March 2000, their relationship having been nothing more than that of training partners. Cameron Roach, he said, was a mutual friend of himself and Painter. 108 He said at some time prior to being interviewed by Police (on 17 November 2000), Painter had contacted him, and suggested that they meet at a shopping centre. Painter, he said, informed him of having been asked by the Crime Commission about a robbery and about a phone that he had purchased at a hotel. Later, Painter informed him that they had said that someone had been bashed and died, and that they had shown him a photograph and asked questions about himself (Mehajer). 109 On another occasion, he said that he had met Painter and his brother, Jason, in Wollongong. On that occasion, he said, Painter had informed him that he had been to the Crime Commission again, that they were "putting pressure" on him, and that he had a story, and needed his (Mehajer's) help. Painter said that if Mehajer was asked by police, he was to say that he (Painter) had purchased the phone at the Green Valley Hotel and assured him that he would not get into trouble by doing so. Mehajer said that he agreed to help him out, and he explained that this is what he did when he was spoken to by police. He said that he did not remember any further discussions with Painter in relation to the offences. 110 He was cross-examined in relation to the intercepted telephone call of 21 August 2000. He explained that when Jacobs asked him to change the name under which he had him listed in his mobile address book, and had said that their relationship was simply that of someone he sees at the Whitlam Centre, swimming, this was so they had similar stories to tell to the police, and not to disguise that they had a close relationship. He explained that when Jacobs told him, during this call, to "get rid of all your shit", he was referring to steroids rather than to the proceeds of the robbery. 111 He denied knowing what Jacobs meant when he told him" they've just fully on it bro. They've fucken' kept real low…don't' my other number ring it from a pay phone". He acknowledged being aware that Jacobs was phoning from a service station but denied that, if he was questioned about the call, he was to explain that his sister had called him to ask what he wanted from McDonalds. 112 Mr O'Connor of the NSW Crime Commission, who was called by the Crown at the request of Mehajer, was asked by the latter some general questions in relation to the Commission's investigation into possible criminal activities by the Rebels motorcycle gang. He was then asked by counsel whether Mr Painter was suspected of having links to the gang. The Crown Prosecutor objected to the question on the grounds of relevance but it was allowed. The cross-examination proceeded as follows: PIKE: Q. You heard the question directed to Mr Painter? A. I wouldn't put it that high. But to the crime, yes, we certainly suspected initially that an outlaw motorcycle gang may have been involved in the crime, and Mr Painter was involved in the crime, so the link was that way. Q. For example, one of the focuses of the inquiry, was the Cross Roads Hotel? A. Yes, that's correct. Q. Indeed, there were persons in Campbelltown, such as Mr Hagerty, Mr Jim Hagerty now known as Mr Pearce, and he was suspected of being a member of the Rebels or - - A. Being an associate, yes. Q. Mr Jacobs, was he suspected of having connections with the Rebels? A. Yes he was. Q. Did you confirm those connections? A. Yes we did. 113 An application was then made by counsel for Jacobs for a discharge of the jury, on the basis that this was a question going to his character which should not have been asked, and which had not been flagged in advance. He indicated that had he anticipated that Mehajer's defence would have taken this course he would have sought a separate trial. Counsel for Mehajer sought to justify the cross examination by a submission that it did not go to Jacob's character as such, but to the defence case that the persons involved in the offence had Rebel motorcycle gang connections, whereas Mehajer had no such connections. It was that scenario, he submitted, that he had been pursuing through the cross examination of witnesses such as Painter, Pearce, Denning, Reely and so on, from the outset. 114 The application for a discharge of the jury was refused by his Honour, with an indication that it would be made clear to them that it was not part of the prosecution case to associate Jacobs with the Rebels. 115 There was no further cross-examination of Mr O'Connor on this topic. 116 This aspect of the cross-examination gives rise to one of the grounds of appeal by Jacobs and I will return to it. APPEALS AGAINST CONVICTIONS 117 The Appellants relied essentially upon the same grounds of appeal, and it is accordingly convenient to deal with them globally. Where their appeals differ they will be dealt with separately. COUNTS 2 AND 3 (BOTH APPELLANTS) - 1. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY AS TO JOINT ENTERPRISE AND THE ELEMENTS AND EVIDENCE IN RESPECT THEREOF. 2. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY: (a) AS TO THE FACT THAT COMMON PURPOSE APPLIED; (b) IF COMMON PURPOSE APPLIED, AS TO THE DIRECTIONS IN CONNECTION THEREWITH. 3. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY: (a) AS TO THE ELEMENTS OF COUNT 2 i.e. ROBBERY, IN COMPANY AND INFLICT GRIEVOUS BODILY HARM . (b) AS TO THE ELEMENTS OF COUNT 3 i.e. ROBBERY, IN COMPANY AND WOUNDING; (c) AS TO THE FACTS SUPPORTING EACH ELEMENT IN (a) AND (b). 118 These grounds are formulated in terms which were not only very general, but also opaque. They need to be understood in the light of the arguments, which were advanced by Mr Papayani for Jacobs, and adopted by Mr Lloyd QC for Mehajer. They seem to have involved several propositions. 119 Firstly that, while his Honour directed the jury in relation to the joint criminal enterprise, which the Crown contended was made out in relation to the counts of robbery in company with infliction of grievous bodily harm (Count 2), and robbery in company with wounding (Count 3), in accordance with R v Tangye (1997) 92 A Crim R 545, the directions were deficient in that they did not mention that the participation of the individual accused could only be proved either by his presence at the scene and physical commission of the crime, or by his presence and the provision of assistance or encouragement: R v Crozier NSWCCA 8 March 1996. 120 Secondly that the jury were not sufficiently instructed, in a case involving separate robbery offences, that the joint criminal enterprise had to be established in relation to each count. In this regards the submission appears also to have involved the proposition that the Crown case was not sufficiently clear as to whether the enterprise was one to rob the cafe and any person in it, or one to rob the two individuals, Cole and Phillips, and, as a result, was flawed by the absence of any evidence of an arrangement reached between the Appellants and Painter before they entered the cafe. 121 Thirdly, that there was error in the case being left as one which involved a joint enterprise which embraced a robbery in company which was committed with an intention to inflict grievous bodily harm (Count 2) and as intention to wound (Count 3), and in the alternative, which was committed in circumstances where the accused individually contemplated the possibility of such harm being inflicted as an incident of the robbery. In substance, it seems to have been contended that the case should only have been left as one of a joint enterprise simpliciter which involved the infliction of acts of violence (R v Kalinowski; R v Timburry (1930) 31 SR (NSW) 377) and that, as a result, the Appellant's culpability was to be assessed solely by reference to the liability attaching to principals and accessories: R v Mohan [1967] AC 187 and R v Clough (1952) 28 NSWLR 396. 122 That was said to follow from the circumstance that the Crown could not prove which of the three persons present inflicted the relevant injuries. 123 It was also contended that the jury were not sufficiently directed that the agreement had to include an understanding that "acts of personal violence should, if necessary, be committed". 124 Additionally, it seems to have been contended that, if common purpose was relied upon, then the summing up was deficient in that "no direction was given as to common purpose or as to an act foreign to the common purpose where the others are neither principals in the second degree or accessories." 125 Fourthly, that the summing up was deficient in that "nothing was said to the effect that robbery was stealing or taking from the person or in the presence of another, in respect of the degree of force or terror as to induce any person unwillingly to part with his property". This was said to have had a particular relevance for Count 3, in that the jury were not asked to determine whether Phillips' mobile phone was taken in his presence, following demands made of him, as a result of apprehension on his part. 126 Associated with this ground was the contention that there was no evidence, or directions given, concerning the existence of a concert, to which the Appellants and Painter were parties, for the latter to take this phone. Painter's act, it was argued, had been one which was a venture of his own, which had not followed upon any actual force or violence, or threat thereof, emanating from any person acting in concert. This was linked to a submission that the directions were unclear as to whether Phillips' evidence of a knife being held at his throat was relied upon as part of the joint enterprise, or otherwise. 127 A similar submission was advanced in relation to Count 2 in so far as it was contended that the summing up was deficient since "no direction was given as to the facts to support robbery in company". 128 Fifthly, it was submitted that the directions were deficient in relation to the element of being "in company", in that "the facts should have been given in respect of each count and not treated in globo". 129 Sixthly, a submission was advanced to the effect that while acts done by one accused in furtherance of a common purpose which constituted elements of the crime charged are admissible to prove the crime (Tripodi v The Queen (1961) 104 CLR 1), a direction should have been given that acts or declarations made after the commission of the crime were only admissible in relation to the Appellant whose acts and declarations they were. 130 Seventhly, it was submitted that the evidence was so complex or contradictory as to what had occurred in the cafe, that his Honour should have dealt with the facts, in support of each element of the robbery counts, separately in relation to each Appellant: R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140. 131 Eighthly, it was submitted that the Crown case was flawed in so far as the blow to the head of the deceased was relied upon as giving rise to the element of grievous bodily harm that was necessary for Count 2, and also for the element of wounding that was required for Count 3. 132 Associated therewith was a submission that a question remained which was not properly addressed, concerning whether or not the blow to the head of the deceased was done before or during the robbery, or afterwards; and that, as a result, the jury were not directed as to the need to determine whether that blow was within the scope of the common enterprise or was beyond what could have been expected to occur: R v Duong at 148 per Mathews J and Markby v The Queen (1978) 140 CLR 108. 133 In that regard, it was contended that had the jury been properly directed, it would have been open for them to have held a reasonable doubt as to whether or not the act was an independent act by whoever was the assailant, and not something falling within the common enterprise, strictly understood, or in its extended form, so as to attract criminal responsibility to his associates. 134 No complaint was made at trial in relation to the directions, which were given in relation to Counts 2 and 3, and no directions of the kind now identified were sought. 135 In my view an examination of the summing up in relation to Counts 2 and 3 provides a complete answer to each of these submissions. 136 Commencing with Count 2, his Honour said: "You see the Crown charges in count 2 that each of the accused, being in company with each other and with Christian Painter, robbed Shane Andrew Cole of a telephone, a wallet and its contents and a quantity of jewellery. And that at the time inflicted grievous bodily harm on Shane Andrew Cole. Now the Crown has to prove all those elements. Let us look at them in turn. What is robbery? Robbery, members of the jury, is an aggravated form of theft. It is an aggravated form of taking the property of another without that person's consent. It is a crime of violence, because it involves not only theft but an element of violence, be it either of actual force of violence, or the threat of it. If you were to leave your house open, doors open and you had gone off down the street and there is nobody home, and I was to sneak in and take your wallet off the table, that would not be a robbery, it would be a theft, because there is no element of violence in that, or the threat of it. So that is what robbery involves, an aggravated form of theft, with the taking of property without consent, and it being a crime of violence, because it involves an element of violence, be it actual form of violence, or the threat of it. The Crown has to prove then the elements of robbery and the notion of robbery also involves the intention of permanently depriving the owner of the property of it." 137 After summarising the Crown case in relation to this element, his Honour next dealt with the element of being "in company", explaining: "This robbery has to be in company. What does the expression 'in company mean'? There is, of course, the need for the involvement of no less than two people and, here of course, the Crown charges (and this is the prime charge) that there were three people involved, each of the accused and the accomplice Painter. If a person robs somebody and there is a third party present, who is no more than a mere passive bystander, well, that robber is not acting in company with that person. To commit a robbery in company, the participants must share a common purpose to rob. If the Crown proves beyond reasonable doubt, that the accused whose case you are considering, shared the common purpose to rob, then that person bears criminal responsibility for those acts of his companion, or companions, including any act contemplated as being a possible incident of the common purpose to rob. You have been told something, from the bar table, about the concept of a joint criminal enterprise. Let me say this to you about that. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other, or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused, the case against whom you are considering. A joint criminal enterprise, members of the jury, exists when two or more persons reach an understanding, or an arrangement amounting to an agreement between them, that they will commit a crime. The understanding, or arrangement need not be written down, it need not be expressed in detail, or at all. Its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. The circumstances in which two or more people are participating in the commission of the particular crime, may themselves establish an unspoken understanding, or an arrangement amounting to an agreement formed between them then and there, to commit that crime. Let me take an illustration far removed from this case. If you were walking along the street here this afternoon and you saw a person walking towards you being followed by two men, who suddenly rushed up to that pedestrian, knocked him down and systematically started going through his pockets and they then took off, you would not need to have been present at some meeting those two assailants had, before you could conclude that they were acting in a joint criminal enterprise. What they were doing reflected an understanding, or arrangement amounting to an agreement formed between them. I say that just to give you an illustration that is far removed from this case but to emphasize, the Crown does not have to prove that there was some express agreement reached and spelt out. The Crown does not have to prove some document that records the terms of the agreement, nor does it have to call somebody who said, 'I was present and I heard A and B discussing what they were about to do'. The Crown here charges the existence of a joint criminal enterprise to which each party, each accused and Painter, was a party. The Crown has not called evidence that the accused and Painter had any conversation, or conversations to spell out an agreement to rob the deceased and/or Phillips. It does not have to do so, provided the evidence satisfies you beyond reasonable doubt, that in all the circumstances, you should infer the existence of such an agreement." 138 His Honour then moved on to the next element which the Crown had to prove, namely the infliction of grievous bodily harm on Shane Andrew Cole at the time of the commission of the robbery in company, giving a conventional direction in the terms of it meaning a "really serious bodily injury". This was followed by a reference to the evidence on that aspect of the case, and then by a direction in the following terms: "Now it is not necessary for the Crown to prove that the harm suffered by Mr Cole was personally inflicted by the accused whose case you are considering provided you are satisfied beyond reasonable doubt that the accused whose case you are considering shared a common purpose to rob with the assailant, in which case that accused bears criminal responsibility for those acts of his companion or companions, including any act contemplated as being a possible incident of the common purpose to rob. This means then unless the Crown has proved beyond reasonable doubt that the accused whose case you are considering personally inflicted the grievous bodily harm upon the deceased that the Crown must prove that that person contemplated the infliction of such harm as a possible incident of the common purpose to rob. You see, a party to a common purpose to commit a crime bears criminal responsibility for such acts of his companion which he contemplated as being a possible incident of the crime which they agreed to commit. So the question is whether the accused whose case you are in the course of considering regarded it as possible that the infliction of grievous bodily harm would be committed. It is not necessary that it be shown that he wanted the infliction of grievous bodily harm to be committed or that he intended that that harm be committed or that he thought it was likely that that harm would be committed. It suffices that the accused contemplated as a possibility that it would be an incident of the crime upon which they agreed." 139 His Honour then moved on to the third count, observing: "The elements to be proved in relation to the third count are very much the same, of course. The two differences are that it is a different victim and that this time the Crown does not have to prove the infliction of grievous bodily harm but robbery in company with wounding. This count and, again you see it form the very expression of the indictment, charges the accused, in company with each other and with Christian Painter, of robbing Shane Phillips of a mobile phone and, at the time of doing so, of wounding him. So the Crown has to prove again the robbery of property, this concept that I instructed you on earlier – it is the very same concept – and that at the time of the robbery in company, the wounding of Shane Phillips. I remind you again that what is involved in robbery involves these elements; the unlawful taking and carrying away of some property of some value. That it was taken away from under his immediate personal care and attention and protection – rather the taking of that property against the will of the person and an intention to permanently deprive him of the property." 140 After summarising what was relied upon by the Crown to establish the robbery of Mr Phillips of his mobile phone, his Honour continued in relation to the remaining elements: "Again the crown has to prove that this was a robbery in company, to which the accused were parties. I remind you again of what I have already said in relation to the second count. The crown has to prove that the accused whose case you are considering, shared a common purpose to rob Mr Phillips in the execution of a joint criminal enterprise. Again I direct you that if the Crown proved beyond reasonable doubt that the accused, whose case you are considering, did share such a common purpose to rob, then that person bears criminal responsibility for the acts of his companion engaged in that common purpose, including any act contemplated as being a possible incident of the common purpose to rob. This then, leaves the issue of wounding. The Crown has to prove the wounding of Shane Phillips. To constitute a wounding, members of the jury, I direct you that there has to be an injury by which the skin is broken. That is what is necessary, in law, for there to be a wounding." 141 The evidence which the Crown relied upon to establish the wounding of Mr Phillips and the manner of its infliction by a kick to his face, were summarised. His Honour then noted the difference in the versions of Jacobs, Painter and Mr Phillips as to who had kicked the latter, and concluded this aspect of the summing up with the reminder: "The Crown, as I have made clear I trust, does not have to prove which of the offenders kicked Mr Phillips, but the Crown does have to prove that the accused, whose case you are considering, shared a common purpose with that assailant to rob Mr Phillips and, that the act of wounding him was contemplated as being a possible incident of that common purpose." 142 In R v Tangye Hunt CJ at CL formulated a model direction in relation to a prosecution case which is based upon a "straight forward joint criminal enterprise", in the following terms (at 556/7): "So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission." 143 Immediately preceding this paragraph, his Honour pointed out that: "The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said." And subsequently (at 558): "As I have said, common purpose becomes necessary only where there has been an agreement to carry out a particular crime (some text books call it the foundational crime) but some other crime has been committed which had been within the contemplation of the accused as a possible incidence in the execution of their agreed joint criminal enterprise (some text books call it the incidental crime) which is said to be within the scope of the common purpose." 144 The error which occurred in Tangye arose from the intermingling of the concepts of joint criminal enterprise and common purpose in a case where there was no need for the Crown to rely upon an extension of the enterprise, since the "infliction of grievous bodily harm was clearly enough part of the joint criminal enterprise – either from the beginning or, at the latest when the participants…started to kick the victims" (at 588). 145 Tangye is not authority for the proposition that the doctrine of common purpose cannot be relied upon to extend culpability arising from a joint criminal enterprise to commit crime A to include crime B, where crime B was within the contemplation of the accused as a possible incident in the execution of their agreed joint criminal enterprise. Indeed, it recognises that, in a suitable case, it is entirely appropriate and permissible for the Crown to rely on extended joint criminal enterprise. There is, in any event, abundant authority to show that this is so: see for example McAuliffe v The Queen (1995) 183 CLR 108; R v Sharah (1992) 30 NSWLR 292 and R v Kyriakou and Ors (1987) 29 A Crim R 50. There is nothing in the statement of the relevant principle by the High Court in Gillard v The Queen (2003) 78 ALJR 64 at paras 109 to 112 to require any variation in this approach. 146 Osland v The Queen (1998) 197 CLR 316, was a case concerned with a straight forward joint criminal enterprise, and not with an extended joint criminal enterprise. The discussion by McHugh J of criminal complicity was concerned with the principles of criminal liability applicable where a crime is committed by persons acting in concert, but did not extend to the type of case considered in McAuliffe. 147 The present case was one where the Crown was properly entitled to rely on extended joint criminal enterprise, as well as on a straight forward joint criminal enterprise. 148 The evidence was clearly sufficient to show a joint enterprise between Jacobs, Painter and Mehajer, to carry out a robbery, in company, of whoever was found in the cafe, with violence, in circumstances where a knife had been taken to the scene and where force was inflicted from the very outset. Whether its scope included the infliction of grievous bodily harm or wounding was a matter for determination by the jury. What was also properly to be left, was the extension of that enterprise by way of the common purpose doctrine, to include the aggravating elements of inflicting grievous bodily harm (Count 2) or wounding (Count 3), although that again was a matter for determination by the jury of what was in the contemplation of the Appellants as possible incidents of the enterprise. 149 That this was so was inevitable in a case where the Crown could not, or might not have been able to, establish beyond reasonable doubt which of those men had occasioned the injury to the deceased, and the wounding of Mr Phillips, and where there was no evidence of any discussion between them, in advance of their arrival at the cafe, or while they were there, as to whether the persons found on site, or any of them, were to be physically harmed, and if so, to what extent. 150 The case was therefore quintessentially one where a joint criminal enterprise and extended joint criminal enterprise were open. It was not one that needed to be confined to a case of straightforward joint criminal enterprise. The basis for the complaint, which seems to underpin most of the points advanced in respect of these grounds, none of which was taken at trial is totally misconceived. 151 The assertion that his Honour failed to direct the jury as to the need for the case to be considered separately in respect of each count, and in respect of each accused, does not do the summing up justice. At several points during the trial, both at its commencement, and in the summing up, his Honour emphasised that the cases against each accused were to be considered separately. In the present context, the portions of the summing up which I have extracted also show that there were clear, correct, and separate directions given in relation to Count 2 and Count 3. 152 It is also clear that his Honour instructed the jury that the mere presence of an accused at the scene of a robbery is not enough to establish a common purpose or joint enterprise, and is also not enough to satisfy the element of being "in company", as to which a perfectly appropriate direction was given. Clearly these directions complied with the decision in R v Brougham (1986) 43 SASR 187 at 191, where King CJ provided the definition of this expression which was adopted by this Court in R v Crozier NSWCCA 8 March 1996 and in R v Button (2002) 54 NSWLR 455, to the following effect: "…A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required." 153 In R v Leoni [1999] NSWCCA 14, the concept of "company" was developed even further in so far as Adams J (with whom Abadee and Barr JJ agreed) said: "In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham 'the victim is confronted by the combined force or strength of two or more persons' that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required. " See also R v Villar and Zugecic [2004] NSWCCA 302. 154 It is equally clear from the way in which his Honour dealt separately with Counts 2 and 3 in the directions, that it was made crystal clear to the jury that they had to be satisfied of the existence of a joint criminal enterprise or extended joint criminal enterprise which extended to each offence. 155 It is not the case that this required the proof of separate enterprises. In that respect, it seems to me that the submission which sought to draw a distinction between an enterprise to rob anyone in the cafe, and one to rob either or both of the victims who were there, is not one of substance. 156 It is entirely consistent with authority for separate counts to be proffered where there are individual victims who are robbed of their property at the one location and at the same time. The defence submission otherwise overlooks the fact that a joint criminal enterprise need not be pre-planned. It can develop and be formed instantaneously. Once again, entirely appropriate directions were given in that respect. Had a single count been proffered, which was confined to the robbery of the deceased, the robbery of Mr Phillips would have gone unpunished. He had his property stolen and he was wounded, and there is no reason in law, or in common sense, why there should not have been separate offences charged as occurring during a joint enterprise to which the Appellants were parties. 157 The submissions in relation to whether there was sufficient evidence, and whether sufficient directions were given in relation to the taking of Phillips' phone from his person by force or through terror, and in relation to whether this had effectively been a frolic of Painter, acting on his own and without the degree of force or terror required for the offence, are equally unmeritorious. 158 The offence of robbery extends not only to property taken from the person of a victim, but also to property taken in his presence. In Smith v Desmond and Hall [1965] AC 960 robbery was held to have been committed where the maintenance engineer and nightwatchman were 33 yards and 2 doors away from the safe which was robbed. Lord Morris of Borthiy-Gest said that the fact that: "…Scott and Lai were some yards away from the safe and were imprisoned in another room and were unable to see what was happening did not, in my view, prevent the crime from being that of robbery. The important moment in time which has to be considered is the moment when by the application of force (or its equivalent) the care and protection of a custodian is overborne. If someone had a number of chattels in his immediate care and protection and was then overpowered and was taken some distance away and was then left bound, gagged and blindfolded it would still be robbery even though at the actual moment when the chattels were taken away he could neither hear anything nor see anything, and even though the actual removal of the chattels only took place some time later than the initial application of the force…Questions as to distance may in some cases arise. All such questions of degree will be for the jury to determine. In the present case there can be no doubt that the violence and the theft were essentially linked." 159 Lord Pearce, in the same case, said (at 998): "…A thief cannot escape the charge of robbery by merely planning his crime in two stages, namely, first violently removing the owner or custodian of the property from its vicinity to a distance at which he cannot see or hear the actual stealing of the property and then, secondly, stealing the property. For that reason, I do not think that it is of any relevance how great the distance to which the custodian of the property is removed…" 160 Smith v Desmond and Hall has been followed in this Court: see for example R v Foster (1995) 78 A Crim R 517. 161 In this instance, Mr Phillips was seized by force and restrained, at a time when he had been walking between the cafe and the car, which had been parked outside those premises, and in which his mobile phone, wallet and clothes had been left. It was while he was restrained that the search for property was made, in the course of which his phone was found and taken, without his consent. The phone was clearly under Mr Phillips' care and protection at that time, and the ability of Painter to take it could only have been carried into effect by the restraint continuing. As the extracted portion of the summing up shows, the jury were appropriately directed that the Crown had to prove that the phone was taken "from under his [Phillips'] immediate personal care and attention and protection." 162 Moreover, Phillips was himself asked where the money was at a time when he had been forced to the floor and had a knife pressed to his throat. He had replied that he did not know, and it was, after this, in the course of a search for money or drugs that his phone was taken. It is impossible to argue, in those circumstances, that no demand was made of him, or that he parted with, or more appropriately was parted from, his property without an apprehension of violence to his person. In any event there is no requirement for a demand to be made to constitute a robbery. What is required is the taking of property without consent, and with violence. In that regard consent obtained by force or violence does not amount to consent. 163 The classic definition of robbery was given by Lord Pearce in Smith v Desmond as follows: "The essence of the offence is that violence is done or threatened to the person of the custodian who stands between the robber and the property in order to prevent or overcome his resistance and oblige him to part with the property and submit to the thief stealing it. Thus the offence against the person and the theft are combined…the offence can only exist where the victim has sufficient care or personal possession of the goods to allow the court to say that constructively the goods were taken 'in his presence' … It is a question of degree for the jury to decide whether the victim of the violence was sufficiently the custodian of the property stolen, whether he had sufficient possession and care of it, to constitute the stealing as being in his presence." 164 Further, as his Lordship said (at 998): "The only relevance of the victim's awareness is this. Is he aware of the theft or intended theft and is he compelled by force or fear to submit to it? Or has he been prevented by violence or threat from becoming aware of the theft and has that enabled the thieves to steal? If the answer to either of these questions is yes, the offence against the person and the theft are combined and the offence of robbery is constituted." 165 The jury were given appropriate instructions in relation to what was involved in the robbery element, and the evidence was well capable of making that element good. 166 Finally, this is a case where appropriate instructions were given in relation to joint criminal enterprise and the meaning of the expression "in company", such that it would have been perfectly clear to the jury that had the taking, by Painter, of Mr Phillips' phone been a frolic of his own, the count would not have been made good. In any event it borders somewhat on the absurd for the Appellants to now contend that the taking of the phone in circumstances where the car and the cafe were being searched for money and/or drugs, while the victims were restrained and assaulted, fell outside the joint enterprise and was a frolic by Painter of his own. Even if Painter had not gone to the premises with any appreciation that he was to take part in a robbery in company, his conduct once he was there led inevitably to only one conclusion, namely that he had joined the enterprise. 167 So far as it is asserted that insufficient directions were given differentiating between acts done in furtherance of the enterprise which constituted elements of the crimes charged (admissible against each Appellant), and subsequent acts and declarations (which were admissible only against the Appellant whose acts or declarations they were), a complete answer is provided by the directions that were given: "You will remember I told you during the course of the trial that a record of interview, an ERISP given by a particular accused to the police, is not admissible against the other accused. Where the accused Jacobs undergoes an interview with the police, what he tells the police at that interview is not admissible against the accused Mehajer and vice versa. So that you only have regard to the ERISP, the record of interview made by a particular accused, against that particular accused. Then in this case there are many intercepted telephone conversations and conversations recorded pursuant to listening devices. You have those in exhibits T and Y. Now the evidence in those categories is available against the accused who participated in the particular conversation. For instance, there have been a lot of recorded conversations involving Mr Jacobs and his friend Nathan. They are conversations in which Mr Mehajer played no part and what took place between Mr Jacobs and his friend Nathan in those conversations is not admissible against Mr Mehajer and, likewise, where you find that Mr Mehajer and, likewise, where you find that Mr Mehajer participated in the conversation in which Mr Jacobs was not involved such a conversation is available against Mr Mehajer but not against Mr Jacobs. Now when you are looking at the transcripts you are guided at the top of each transcript by an identification of who were the participants and, members of the jury, it is important that when you are looking at these transcripts that you remind yourself, get into the habit of looking at them and saying: Well now, who are the parties to this, who is this available against? If Mr Jacobs is a party to the conversation, it is admissible against him. If Mr Mehajer is a party to the conversation, it is admissible against Mr Mehajer but no transcript or conversation is admissible against an accused person who was not a party to that conversation." 168 When his Honour came to direct the jury in relation to lies he did so in terms that made it clear that lies told by Jacobs were relevant for the case in relation to him, and that lies told by Mehajer were relevant for the case in relation to him. 169 So far as there was any course of lying that was common to each, and which arose as a result of their agreement to provide a common account that was untrue, and so far as there was evidence relating to their post offence conduct that went to their relationship or meetings, or conversations, then that was clearly admissible against each. 170 This was a case where the subsequent conduct and declarations of the parties properly went to the issue of their consciousness of guilt. This argument is not made good. 171 Finally, in relation to the multiplicity of arguments that were brought within the umbrella of these grounds, there was the submission concerning whether the blows to the deceased were relied upon as causing the harm or injury charged under both Counts 2 and 3, and as to whether those blows were done within the scope of the enterprise. 172 These arguments have been largely dealt with already. The first is a somewhat surprising contention, it being perfectly clear that separate acts occasioning harm to the two victims, were relied upon for Counts 2 and 3. Secondly the Crown case was unequivocal in so far as it alleged that the relevant injuries were inflicted in the course of the commission of the robberies, either as part of a straightforward joint criminal enterprise, or as part of an extended joint criminal enterprise. Whether that was made good was a jury question, it being one of the elements that were properly and sufficiently explained by his Honour. 173 Although I have considered it necessary to deal with these grounds somewhat extensively, I would refuse leave under Rule 4, since I am persuaded that no error was discharged. GROUND 4 (BOTH ACCUSED): HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY IN RESPECT OF CIRCUMSTANTIAL EVIDENCE. 174 It was submitted that the directions were deficient in failing to point out that any inference drawn "had to be the only inference", and in that "nothing was said as to what facts were relied upon to support that inference beyond reasonable doubt". 175 No complaint was made at trial in relation to the directions which were given in relation to circumstantial proof, and no request was made for any additional directions. His Honour provided a conventional direction in relation to inferences, pointing out that: "Inferences are conclusions of fact rationally drawn from a combination of proved facts. If facts A, B and C are proved then you may rationally conclude from their proof that fact D is a fact event thought there is no direct evidence about fact D." 176 He next referred to the example commonly given in relation to a person making an unanswered telephone call, to illustrate the need to consider with care the inferences which might be available in that situation, cautioning: "Now this is a criminal trial and proof beyond reasonable doubt is required and it means that you should not draw any inference from the direct evidence unless it is the only rational inference to draw in all the circumstances. It is important that you bear that in mind here." 177 His Honour then focussed upon circumstantial evidence, noting that while the Crown relied on the direct evidence of Mr Phillips and Painter, it also placed reliance in part upon circumstantial evidence. He explained that: "Circumstantial evidence is evidence of some fact, or facts, from which you are to draw a conclusion as to further fact or facts." 178 His Honour then gave an example: "Let us suppose that what the Crown was seeking to prove was that X stole a computer from a house belonging to Y. Let us suppose that the crown set about proving that theft in this way, firstly, by calling evidence that fingerprints of X were found on the front door of Y's house. Secondly, that X's car was seen in the next street at just about the same time that the computer was taken and, thirdly, that shortly after the theft of the computer, X was found to have possession of a computer that matched the description of that taken from Y's house. That would be a case based entirely upon circumstantial evidence, because it is not a case where someone said, "I saw X there. I saw him force his way into that house and I saw him run off with the computer and put it in his car". Circumstantial evidence then is evidence of a group of circumstances which point to the guilt of the accused, because those circumstances exist in combination, only because the fact which the Crown was seeking to prove, also existed. I tell you that circumstantial evidence need not be any less reliable than direct evidence from an eyewitness. Indeed, because it does not depend to any great extent upon the reliability of a witness who could be a mistaken or maliciously false, circumstantial evidence can, in particular cases, be of greater probative value than the evidence of an eyewitness." 179 His Honour then noted that the evidence in the category of circumstantial evidence, upon which the Crown relied was the evidence of the various intercepted conversations, the phone records between Mehajer and Painter, and between Mehajer and Jacobs, and the sighting of the three men in the vicinity of Colie's Cafe on 3 March 2000, before reminding the jury: "What is important, members of the jury and, I stress this, is that you must avoid resort to suspicion, or speculation, or conjecture in arriving at your verdicts." 180 It is clear from the foregoing that conventional directions were given as to the drawing of inferences, including the direction that an inference can only be drawn where it is both a rational inference, and the only such inference available. This provides a complete answer to the first complaint, which is made by the Appellants. 181 The second complaint is also not made good, since this was not a case depending upon links in a chain of reasoning towards guilt, or one where there were essential intermediate facts to be established through circumstantial evidence. 182 I would refuse leave to argue this ground. GROUND 5 (BOTH APPELLANTS) – HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT AS TO THE ALTERNATIVE BASES OF MURDER HAVING REGARD TO THE FORM OF THE INDICTMENT (a) IN THAT COUNTS 2 AND 3 SHOULD NOT HAVE BEEN INCLUDED IN THE INDICTMENT. (b) THAT MURDER WAS NOT AVAILABLE IN RESPECT OF COUNTS 2 AND 3 AS DIRECTED BY HIS HONOUR. 183 The submissions which were advanced on appeal did not reflect these grounds, it having been submitted, in substance that: (a) The summing up was deficient in so far as his Honour did not direct the jury to consider the facts in relation to Counts 2 and 3 separately; (b) The evidence in relation to Count 3, if considered separately, could not have supported a verdict on that count; (c) The alleged robbery of Phillips had nothing to do with what happened to the deceased (either in respect of Counts 1 and 2); (d) The blow to the deceased was not relevant for what happened to Phillips (Count 3). 184 No complaint was made at trial in relation to the way in which the jury were directed in relation to Counts 2 and 3. This submission needs to be examined in the light of the way that the case was left to the jury. His Honour gave some initial directions in relation to Count 1, to which he returned after having given the extensive directions in relation the foundational offences charged in Counts 2 and 3, which I have earlier noted. He initially reminded the jury of his earlier observations, emphasising that: "If the Crown has failed to prove the guilt of the accused on either of those two counts, then the Crown has failed to prove the commission of a foundational crime, fundamental to proof of the crime of murder. If you were to acquit an accused before this court on count 2 and count 3, you must acquit that accused person on count 1, because that foundation has gone for the crime of murder. It has not been proved. Conviction on count 2 and/or count 3 – and I remind you that the Crown does not need both of them to move on to count 1 – but conviction on count 2 and/or count 3, would not necessarily lead to conviction on count 1, because there are other elements that you have to consider, and I am now going to give you some further instruction about what the Crown has to prove in order to prove the crime of murder. At the risk of being tedious, again I must remind you that just as with counts 2 and 3, you must consider the case against each accused person discretely when you are looking at count 1." 185 He then gave a general direction in relation to constructive murder: "… murder is committed where the act causing the death of the deceased, is done during the commission by the accused, or some accomplice with him, of a crime punishable by imprisonment for 25 years and here the Crown relies upon proof of the crimes charged in count 2 and/or count 3. Each of those crimes charged in those counts, is in a category punishable by imprisonment for 25 years." 186 This was first applied to the foundational offence, which was the subject of Count 2: "To establish the crime of murder here the Crown must prove the following: 1. That there was a common purpose shared by the accused in company, to rob Shane Cole. 2. That during the course of that robbery in company, grievous bodily harm was inflicted upon Shane Cole. 3. That the infliction of such grievous bodily harm was a contingency, that is a possible happening, which the accused had in mind might occur during the robbery in company. Might occur. The Crown does not have to prove that it was necessarily the accused whose case you are considering, who personally inflicted the grievous bodily harm. It is sufficient that the harm was occasioned either by that accused, or by another party to the enterprise. Provided the infliction of that harm was a possible happening which the accused, whose case you are considering, had in mind as something that might occur during the robbery. 4. The Crown has to prove that the infliction of that harm caused the death of Shane Cole. The Crown does not have to prove, members of the jury, that the act, or acts causing death was, or were done with an intent to kill, or indeed with intent to cause grievous bodily harm. But it must prove that such act, or acts, were voluntary not accidental. And it must prove that such act, or acts, was or were done, during the commission of robbery in company. When I say that it has to prove that the acts were voluntary, by that I mean that the act, or acts were conscious, deliberate, as opposed to accidental. I will come back to this question of causation in just a moment. But they are the elements that have to be proved, based upon the foundational crime charged in the second count." 187 His Honour next applied the general direction in relation to the foundational crime charged in the third count, explaining that: "The elements to be proved are the following: 1. That there was a common purpose, shared in company, to rob Shane Phillips; 2. That during the course of that robbery in company the accused or another party to that enterprise wounded Shane Phillips and during the course of that robbery in company with wounding the accused or another party to that enterprise caused grievous bodily harm to Shane Cole causing his death; and 3. That the infliction of grievous bodily harm to Shane Cole during the robbery in company with wounding of Shane Phillips was a possible happening, a possible happening which the accused whose case you are considering contemplated might occur." 188 The Appellants submitted that the present was not a case where constructive murder (or felony murder as it was previously known) was available. This submission turns upon the proper interpretation of s 18 of the Crimes Act 1900. 189 It was asserted that, on its natural reading, the opening words to the section "murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged" govern the section, and mean that murder can only be established where it was the act or omission of the accused that caused the death. 190 It was further asserted that the category of constructive murder, which is brought within the section (in addition to cases of specific intention or reckless indifference to human life) by the closing words "or done in an attempt to commit, or during or immediately after the commission by the accused, or some accomplice with him or her" of a crime punishable for life or for 25 years, are directed to the commission of the foundational crime, and not to the act causing death. 191 At the outset it is to be observed that the first proposition that was advanced is somewhat startling, since if it is correct, then in a case of joint enterprise, where the parties shared an intention to kill or inflict grievous bodily harm, murder would only be committed by the accused whose act in fact brings about the death. 192 Such a proposition would fly in the face of long standing authority that a person may be found guilty of murder, although he or she did not commit the act bringing about death, so long as that person was acting in concert with the perpetrator. That was recognised in Osland v The Queen (1998) 197 CLR 316 at 341 to 351 and in McAuliffe v The Queen (1995) 183 CLR 108, and there are numerous examples in the case law, including for example R v Mohan [1967] AC 187 where offenders acting in concert have been convicted of murder, even thought the Crown is not able to prove which of them carried out the act causing death. 193 Prior to 1883, murder in New South Wales, was murder as defined in the common law. In the 13th Century, homicide was culpable if the death occurred during the commission of an unlawful act. In Foster's Discourse of Homicide in 1762, the felony murder rule was relaxed to the extent that it was confined to the case of a killing in the course of an act with intent to commit a felony. 194 This strict approach is illustrated by the case of R v Horsey (1862) 3 F & F 287; 176 ER 129 where the accused was charged with murder after setting fire to a stack of straw. There was no evidence that the accused had any idea of the presence of the deceased, who was sleeping in the stack and who was burned to death. The trial judge, Baron Bramwell, instructed the jury that where an accused, in the course of committing a felony, caused the death of a human being, that was murder, even though he did not intend it. 195 This approach was criticised by those who disliked making death, occasioned during the course of a felony, murder when violence was neither likely nor intended. 196 Stephen J expressed his dislike of the strict approach in R v Serne (1887) 16 Cox CC 311 when instructing the jury: "…Now when it is said that murder means killing a man by an act done in the commission of a felony, there mere words cover a case like this, that is to say, a case where a man gives another a push with an intention of stealing his watch, and the person so pushed , having a weak heart, or some other internal disorder, dies. To take another very old illustration, it was said that if a man shot at a fowl with intent to steal it, and accidentally killed a man, he was to be accounted guilty of murder, because the act was done in the commission of a felony. I very much doubt, however, whether that is really the law, or whether the Court for the Consideration of Crown Cases Reserved would hold it to be so. …In my opinion the definition of the law which makes it murder to kill by an act done in the commission of a felony might and ought to be narrowed…I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death done for the purpose of committing a felony which caused death, should be murder. As an illustration of this, suppose that a man, intending to commit a rape upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her, that would be murder…If a man once begins attacking the human body in such a way, he must take the consequences if he goes further than he intended when he began…If a person chose, for some wicked purpose of his own to sink a boat at sea, and thereby caused the deaths of the occupants, it matters nothing whether at the time of committing the act he hoped that the people would be picked up by a passing vessel. He is as much guilty of murder, if the people are drowned, as if he had flung every person into the water with his own hand." 197 In New South Wales, the strict rule was ameliorated in 1883 in the Criminal Law Amendment Act. Section 9 of that Act expressly defined murder in the following terms: "9. Whosoever commits the crime of murder shall be liable to suffer death and murder shall be taken to be where the act of the accused or thing by him omitted to be done causing the death charged was done or omitted with reckless indifference to human life – or with intent to kill or inflict grievous bodily harm during or immediately after the commission by the accused or some accomplice with him of an act obviously dangerous to life or a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be Manslaughter." 198 This definition was reproduced in s 18(1)(a) of the Crimes Act 1900. Smart J in R v Downs [1985] 3 NSWLR 312 noted that in the 1883 Act the legislature had been at pains to specify (in s 9) any change to the common law concerning murder. Lee J pointed out in the same case (at 316) that the various acts resulting in death described in s 18(1)(a) were themselves all acts which at common law gave rise to murder. Relevantly his Honour at 318 stated: "In one respect, the terms of the section brought about a difference from the common law of murder and that was in regard to a killing during the commission of a felony. The accidental taking of life by a person committing (or about to commit) a felony of any kind was at one time murder at common law, but, as pointed out earlier, this was ameliorated as time when by and the felony had to be one dangerous to life and likely to cause death. Under s 18(1)(a) it would amount to murder if the felony was one punishable by penal servitude for life. This matter is dealt with at some length by Windeyer J in Ryan v The Queen (1967) 121 CLR 205 at 240-241. The definition of murder at common law was thus replaced by a definition in accordance with the subsection, but the subsection did no more than attach to an act of homicide states of mind (intent to kill or inflict grievous bodily harm, or reckless indifference) or descriptions (obviously dangerous to human life, or committed during or immediately after a felony punishable by death or penal servitude for life) which would, in any event, at common law have made the act of homicide murder." 199 As is discussed later in these reasons, it is a principle of long standing that a person may be found guilty of murder although he or she did not commit the act or acts which physically caused the death of the victim, provided that the or she was acting in concert with the perpetrator. 200 The wording of s 18 did not alter the operation of the common law rules of complicity. It is a general rule of statutory interpretation that a basic common law doctrine is not to be disturbed unless the statute expressly requires that result. 201 In their commentary on the Act, the draftsmen, Sir Alfred Stephen and Alexander Oliver, noted in their Criminal Law Manual published at the time (at 199): "The accidental taking of life, by a person committing (or about to commit) a felony of any kind is by the Common Law murder. Under the ninth section it will not amount to that crime, unless the felony was a capital one, or punishable by penal servitude for life. Such last-mentioned act or crime, attempted or committed, may, within the last member of this section, be either by the accused or by an accomplice with him." 202 Later they said: "So far, it is believed that in effect the English and the Colonial law are the same. But in one particular there is an important difference. The accidental taking of life, by a person committing (or about to commit) a felony of any kind, is by the Common Law murder. Under the ninth section it will not amount to that crime, unless the felony was a capital one, or punishable by penal servitude for life." 203 There is nothing in the amended provision to disclose any intention to alter the common law principles of complicity. All that the Act did was to require a capital felony or one involving punishment by penal servitude for life, and to that extent, but only to that extent, it parted from the common law: cf R v Burke [1983] 2 NSWLR 93 per Miles J at 103. 204 While the Appellant sought to call in aid the rule of statutory interpretation noted by Hodges J in Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 at 452 to the effect that a statute should be construed as far as possible so as to give the same meaning to words wherever those words appear in the instrument, more relevant is the rule noted in Saraswati v The Queen (1991) 65 ALJR 402 per McHugh J at 410: "Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction "that would promote the purpose or object underlying the Act" over a construction "that would not promote that purpose or object": cf Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261–2 … Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes." 205 In this instance it is perfectly clear that the reference to "the accused" when used twice in s 18 is a reference to the accused who is on trial and is not intended to give rise to the consequence that it must be his act, rather than the act of a person acting in concert, which causes death. 206 It is equally clear that the 1883 Act was passed to ameliorate the harsh common law approach to felony murder, and was not intended to restrict the principles of complicity, which were well entrenched in the 19th Century, so as to confine culpability for felony murder to the case of the offender whose act caused death. 207 Later amendments to the Crimes Act do not require any different approach. By Act No. 50 of 1974 the words "of an act obviously dangerous to life or" were omitted from s18. The Second Reading Speech of the Minister (Hansard, 1974 at 1355-6, 1829) indicates it was thought that the concept either unnecessarily increased the Crown's difficulty of proof to an absurd degree, or was mere surplusage because the selection already included the concept of an act done with reckless indifference to human life, or operated with undue harshness against an accused. By Act No. 218 of 1989 the class of felony that came within the section was extended to those that attracted a maximum sentence of imprisonment for 25 years. The amendments also changed the maximum sentence for a number of offences from penal servitude for life to one of 25 years; for example, robbery with wounding. 208 The limited authority that exists in this regard also does not support the conclusion for which the Appellants contend. 209 In R v Surridge and Anor (1942) 42 SR (NSW) 278, the victim, who had visited a prostitute, was assaulted by a number of persons intent on robbing him. The prostitute hit him on the side of the head after he objected to the presence of another female who had entered the room and rifled through his pockets taking his money. The prostitute then left the house and brought back her husband, the Appellant, and another man. A witness saw both men go into the house, heard sounds of violence coming from within and then saw the two men carry the victim around the corner to a vacant allotment. He died sixteen days later from his injuries. 210 On appeal this Court considered the question, whether "it was necessary to direct the jury that if they found that [the Appellant] was an accomplice of those who committed the actual acts of violence they must or might return a verdict of manslaughter only". Jordan CJ (with whom Halse Rogers and Maxwell JJ agreed) said (at 282): "The following considerations are material in considering whether an accomplice has incurred liability to conviction upon a charge of murder. At common law, killing constituted murder in two classes of case which, stated broadly, were (1) where the killing was intentional, and (2) where it was done unintentionally in the course of committing certain crimes which did not necessarily involve killing. This distinction is maintained in the definition of murder contained in s 18, which provides that murder shall be taken to have been committed only in two classes of case which, stated broadly, were (1) where the killing was intentional, and (2) where it was done unintentionally in the course of committing certain crimes which did not necessarily involve killing. This distinction is maintained in the definition of murder contained in s 18, which provides that murder shall be taken to have been committed only in two classes of cases, (1) where what caused the death was done or omitted (a) with reckless indifference to human life, or (b) with intent to kill or inflict grievous bodily harm, or (2) where it is done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with in, (a) of an act obviously dangerous to life, or (b) of a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be manslaughter. The special mention of an accomplice in the second group does not exclude accomplices from liability for murder for killings incurred in the first group." 211 Speaking of an agreement between two or more persons falling into the second class of cases, Jordan CJ said (at 283): "If, however, their agreement does not involve the doing of something in the first group, it is necessary, in order that the person who is an accomplice only may be guilty of murder, that it should have been within the common purpose of both that an act obviously dangerous to life, or a crime punishable by death or penal servitude for life, should be committed, and the cause of the death must have been something done by the other in an attempt to commit or during or immediately after the commission of that act or crime. In my opinion, upon the evidence given in the present case, there is nothing in s 18 of the Crimes Act , 1900, which prevented the conviction of [the Appellant] of murder if the jury took the view that he was an accomplice only…" 212 The point also arose in R v Bell (1987) 8 NSWLR 311, upon an application to this Court to go behind a notice of abandonment. The Court said (at 315): "The third proposed ground of challenge is that the Appellant had been convicted of a felony murder in circumstances which the actual act causing death had not been established as being the act of the Appellant, but rather the act of an accomplice. The factual basis for this challenge is that a series of alternative approaches had been set out in writing for the jury's guidance and the verdict chosen by the jury indicated that it was not satisfied beyond reasonable doubt that it was the Appellant who actually wielded the knife in the fatal wounding of the deceased. We have had the assistance of submissions at some length from both the Appellant and the Crown on these three heads of challenge. In relation to each of the three, it cannot be said that the challenge is so clear as to demand the intervention of the Court. Nor can it be said that the point is so insubstantial as to be able to be brushed aside. Each one presents an arguable matter of challenge, but ultimately on the overall merits of the case, it is difficult to see how the jury properly instructed could have failed to convict the Appellant of the armed robbery, of which he was guilty. Likewise, the matter of the felony murder is, in our view, one on which the Appellant would not be able to count with great confidence as a basis of challenge to the conviction." 213 Text writers also lend no support to the Appellant's submission. Howard Australian Criminal Law (1965) in a footnote at page 226 states: " Surridge (1942) 42 SR (NSW) 278. This case decided inter alia that the special mention of accomplices in Crimes Act, 1900 (NSW), s 18 does not affect the application of the common law of complicity in murder in New South Wales. Similarly Grand (1903) 3 SR (NSW) 216, 223-224." 214 A similar footnote is to be found in the most recent Fifth edition of Howard (Fisse) at page 321. 215 Finally, there are any number of cases of felony murder where the act causing death was that of an accomplice and not the accused, where an interpretation of s 18 advanced by the Appellants has not been applied: see R v Vandine [1970] 1 NSWR 252; R v Elliot and Hitchins (1983) 9 A Crim R 238; R v Shannon Foster (unreported, NSWCCA 7 April 1995); and Regina v Spathis and Patsalis [2001] NSWCCA 476. 216 The Appellants' primary submission is accordingly not made good. Although the submissions in relation to the alternative challenge are somewhat cryptic, they seem to involve a proposition that felony murder would not be available in a case where the foundational crime depends upon the doctrine of common purpose. To some extent this submission appears to overlap with the primary submission and to that extent it calls for a further examination of the basis upon which culpability may be attracted to persons whose own acts were not the immediate cause of death. 217 In Osland v The Queen McHugh J at 341 to 351 gave consideration to the basis upon which a party may incur criminal liability, not only for his own acts that constitute the whole or part of the actus reus of a crime, but also for the acts of others that do so. That liability, as his Honour pointed out, can be primary, as in the case of the party whose own act constitutes the crime and in the case of the party who is present, and acting in concert with the primary perpetrator; or derivative, as in the case of the accessory before the fact who was not present at the scene of the crime, and in the case of the person who was merely present, encouraging but not participating physically in the acts constituting the actus reus. 218 As his Honour also pointed out (at 342): "However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others." 219 His Honour observed (at 343) that, in such a case, the accused are all equally liable or responsible for the acts that constitute the crime, and in that respect he confirmed the correct statement of the law by this Court in R v Tangye (1997) 92 A Crim R 545. 220 As a result, his Honour explained: "a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter." (at 343); and even where the actual perpetrator is acquitted of the offence, so long as it was that party's act that is shown to have caused the death. In this respect his Honour said, citing in support the Privy Council decision in Hui Chi-Ming v The Queen [1922] 1 AC 34, and the decisions of the High Court in Matusevich v The Queen (1977) 137 CLR 633 and Markby v The Queen (1978) 140 CLR 108, that: " it is the acts , and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea , he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea , self-defence, provocation, duress or insanity." (at 344). 221 His Honour observed, additionally (at 346/7): " Markby v The Queen also supports the conclusion that it is the wrongful acts of the perpetrator which are attributed to the person acting in concert and present at the scene. Markby establishes that if violence is one of the contemplated incidents of a joint criminal enterprise and one of the accused kills a person, the other accused can be convicted of manslaughter even though the killer is guilty of murder. This decision is consistent only with the conclusion that it is the acts constituting the actus reus , and not the crime, of the actual offender which are attributed to the other party. The liability is direct or primary, not derivative. This was the view of the Judicial Committee in Chan Wing-Siu v The Queen [1985] AC 168 where Sir Robin Cooke, giving the advice of the Judicial Committee, said: 'The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.' (emphasis added) The principle was recently reaffirmed by the House of Lords in R v Powell [1997] 3 WLR 959. This Court had earlier applied the principle to the case of an accessory before the fact engaged in a joint criminal enterprise. In Johns v The Queen Mason, Murphy and Wilson JJ said: 'In our opinion these decisions support the conclusion reached by Street CJ, namely, 'that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture'. Such an act is one which falls within the parties' own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.'" 222 Consideration was also given to this question in the earlier decision of this Court in R v Sharah (1992) 30 NSWLR 292 which has some similarity to the present case. Carruthers J (with whom Gleeson CJ and Smart J agreed) explained the way in which the relevant principles were to be applied in a case of common purpose murder and also in a case of constructive murder (there referred to as "felony murder"). Sharah was a case where there was a joint enterprise between the Appellant and a co-accused Attard, who was armed with a shotgun, to rob a man "John", in the course of which the weapon was discharged by Attard twice, wounding "John", and killing another man "Nick". 223 His Honour summarised the elements which the Crown needed to prove to establish the offence of murder against the Appellant, who, although present at the time of the offences, had not himself caused the death or wounding, as follows: "As to common purpose murder, it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun; (ii) that during the course of the armed robbery Attard discharged the gun intending to kill or cause serious bodily harm to Nick; (iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery, Attard might use the gun with the intention of causing really serious bodily harm. As to felony-murder (upon the assumption that the foundational crime was the offence under s98) it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun; (ii) that during the course of the armed robbery Attard wounded John and during the course of such armed robbery with wounding or immediately thereafter, Attard discharged the gun causing the death of Nick; (iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose. As to the final element, see especially the judgments of this Court in Regina v Johns (1978) 1NSWLR 282, particularly at 294-295, where Begg J quotes with approval the directions of the trial judge. In relation to the s98 count, it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off, double-barrelled shotgun; (ii) that during the course of the armed robbery Attard wounded John; (iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur." 224 His Honour approved the directions, which the trial judge had given in relation to felony murder, as well as the explanation which was given as to the policy reasons for its presence in the statute books. 225 His Honour rejected the submission which was advanced, on appeal, in relation to both limbs of the way that the Crown pursued its case of murder against the Appellant, that it was necessary for the Crown to prove that he knew, or alternatively contemplated as a possibility that the gun was loaded and actually authorised its use. In relation to this submission, his Honour said (at 301): "It is well established that there are two classes of common purpose murder. The first class is where the Crown proves that the accused was present and that the deceased was killed in accordance with an understanding or arrangement to which the accused was a party and that that understanding or arrangement included the intent charged, that is, either to kill or to cause grievous bodily harm. The second class of case is where the accused lends himself to a criminal enterprise knowing that a potentially lethal weapon was being carried by one of his companions and in the event that it is in fact used by one of his partners with an intent sufficient for murder, then the accused too will be guilty of that offence of murder if the Crown establishes beyond reasonable doubt that the accused contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm. In the recent case of Hui Chi-ming v Regina [1991] 3 All ER 897 (a case to which I regret to say, this Court was not referred by either party) the Privy Council were concerned with a case of the second class. The present case is also within the second class. Counsel for the appellant in Hui Chi-ming referred the Board to the observations of Sir Robin Cooke in Chan Wing-siu v Regina [1985] AC 168, at 175: 'It turns on contemplation or, putting the same idea in other words, authorisation, which may be expressed but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.'" 226 As his Honour noted, the Privy Council in Hui Chi-Ming rejected the contention that the equation, in this observation, of "contemplation" with "authorisation", means that the accomplice who merely foresees the further and additional act of the principal is not liable for this act. 227 Carruthers J noted, applying Hui Chi-Ming, that authority established that it was sufficient for the Crown in the instant case to prove common purpose if the Appellant participated in the unlawful common purpose realising (without agreeing to such conduct being used) that Attard may kill or inflict serious injury with the loaded gun. The submission that the Crown had to prove that the Appellant actually authorised the use of the weapon if necessary therefore did not stand with authority. 228 While these decisions establish the fallacy in the Appellant's submissions, in the light of the way in which the Crown case was put, it is convenient, finally to dispose of the suggestion that the approach adopted could give rise to an absurdity. This depended upon the example that was postulated in the following terms: "A & B agree to assault V1 and V2 and in carrying out this joint enterprise A hits V1 with no intention of inflicting serious bodily or to kill and V1 dies – an obvious case of manslaughter. B also hits V2 with no such intention as above and V2 dies – an obvious case of manslaughter. AB are charged with murder under s 18(1)(a) on the basis that in respect of A the accomplice B committed manslaughter an offence carrying the penalty of 25 years and the death of V1 occurred during or immediately after the offence by B and similarly in respect of B." 229 The problem with this example, however, is that the relevant joint enterprise between A and B was one to assault V1 and V2, and that would not qualify as a foundational crime for felony murder, since it is not a crime that carries a penalty of imprisonment for 25 years. GROUND 6 (BOTH APPELLANTS) – THERE SHOULD HAVE BEEN A DIRECTED VERDICT OF ACQUITTAL ON COUNTS 3 AND 1. 230 In substance this was said to follow from the preceding grounds, in that: (a) "in company" was not proved; (b) stealing from the person or in the presence of the victim (Phillips) was not proved; (c) there was no evidence of any intention to rob Phillips; (d) the theft of Phillip's mobile was an independent act of Painter; 231 Each of these submissions has been dealt with so far as they focus upon Count 3 as a separate offence, and also so far as that offence was relied upon as a foundational offence for Count 1. In the latter regard the submissions concerning the availability of felony murder have also been dealt with under Ground 5. Since none of the submissions concerning those grounds has been made good, this ground also fails. GROUND 7 (BOTH APPELLANTS) – COUNTS 1, 2, 3: THE VERDICTS OF THE JURY WERE UNREASONABLE AND CANNOT BE SUPPORTED BY THE EVIDENCE BEING ALSO UNSAFE AND UNSATISFACTORY GIVING RISE TO A MISCARRIAGE OF JUSTICE. 232 This effectively depended upon the remaining grounds being made good, although reliance was also placed upon a general submission that the evidence having been dealt with "globally" as applicable to all counts, and not directed to the individual counts, the jury was left with a confused picture. 233 The Crown case against Jacobs was very strong. In brief summary, the combination of the following facts and circumstances establish that this was not a case where the jury should, on the whole of the evidence, have entertained a reasonable doubt as to his guilt: M v The Queen (1994) 69 ALJR 83: (a) Jacobs acknowledged his presence at the scene, and at least his participation in watching over the victims while the search was being made for property to take; (b) He told a large number of lies about the matter, he was party to having others tell lies, he rehearsed his lies, and he asked Mehajer to tell lies and to take steps to lessen the risks of their detection; (c) He acknowledged on several occasions being in serious trouble in relation to the matters and to having contemplated flight; (d) He took from the premises the phone of the deceased and sold it to Nilsen; (e) Painter gave evidence which was capable of being accepted by the jury, and which very clearly implicated him in the offences; (f) His evidence did not fit within the evidence of Phillips as to what occurred in the cafe; and (g) The terms of his several conversations with Cameron Roach and Mehajer, particularly those of 21 August 2000, 18 October 2000 pointed strongly to his complicity. 234 This ground is not made good in relation to this Appellant. 235 I have reached the same conclusion in relation to Mehajer, although the case was not quite so strong in relation to him, in the absence of any evidence establishing his post offence possession of any of the stolen property. In his case the following circumstances lead me to this view: (a) The coincidence of telephone calls between his mobile phone on the day of the offence and the phones of Jacobs and Painter (including multiple calls to Painter), each of whom were shown to have had possession of property taken from the two victims; (b) Mr Phillips' evidence in relation to the conduct, as well as the physical description of the man who threatened him with the knife, and the Comfit picture, the features of which were remarkably close to Mehajer's appearance, apart from the length of his hair, a matter as to which Mr Phillips expressed a concern from the outset; a description which did not match that of Painter and Jacobs; (c) Mehajer's lies to police; (d) The meeting between Mehajer, Roach and Nilsen after Nilsen's interview with Police on 4 August 2000; (e) The terms of the telephone conversations between Jacobs and Mehajer, particularly those of 4 August 2000 and 21 August 2000; (f) The sighting by independent witnesses of two and later three men, in the vicinity of the cafe before the offences, in circumstances that were consistent with the evidence of Jacobs and Painter, one of whose description fitted that of Mehajer; and (g) The evidence of Painter and Jacobs which implicated him centrally in the offences and which was capable of acceptance by the jury. 236 Counsel for this Appellant provided an extensive analysis of what were said to be the major inconsistencies between the objective evidence and the evidence of Mr Phillips, on the one hand, and the evidence of Mr Phillips on the other hand, such that, in his submission, the jury ought to have entertained a reasonable doubt as to his guilt. It may be observed that this submission does not address the circumstances that Jacobs' evidence, once given at trial, was available in relation to Mehajer. 237 Leaving that aspect aside, I turn to the inconsistencies that were said to exist: (a) Painter's account of his role in the robbery: 238 This was said to be inherently improbable, in that had he not indicated a willingness, in advance of arriving at the cafe to engage in a robbery, then it was unlikely that he would have been co-opted for the venture. Further it was said to be improbable that the only link between Painter and Jacobs had been Mehajer in view of their common friendship with Mr Roach; and that suspicion arose as to Painter's greater involvement from the fact that Ms Reely had a relationship with Pearce, who disclosed an intention on the day after the robbery, to meet a man whom he described as "Christian". 239 Clearly enough this gave rise to issues which were properly before the jury, which were the subject of addresses. The jury was not obliged to accept everything which Jacobs and Painter said, concerning whether or not there were discussions in the car as to what was planned. Clearly enough, however, they accepted the evidence of each of Painter and Jacobs as to Mehajer's presence. The issues concerning Ms Reely and Pearce, and possible contact between Pearce and Painter, were side issues. It remains possible that other persons were involved in the planning of the offences, yet even if that be true, what was the issue for this jury was confined to the participation of those before the Court. (b) Painter's account of their arrival at Leumeah: 240 This related to the fact that Painter had not mentioned to the Crime Commission the fact of the preliminary reconnaissance of the cafe, of the wait for the deceased to arrive, and of seeing the deceased's car pulling up followed by the men entering the cafe. It was accepted that there had been a mention in the recorded walk through by Painter of Mehajer or Jacobs saying, "he's gone up there". 241 It is not entirely clear that Painter did say in his statement to the Crime Commission that he first saw the victim inside the cafe. In cross-examination he made it clear that he was not 100% sure if he had seen the car pull up, indicated that he assumed that had been the case, but asserted that he had seen the men outside the front of the cafe. The conflict in this part of Painter's evidence was brought to the attention of the jury, but it was hardly a matter of any great moment. (c) Timing of the robbery: 242 This related to the evidence of Painter that he placed a call to a Mr Gough at 4:17 PM and that they then left to go to the cafe a few minutes later, which the Appellant suggested would have had them there at about 4:23 PM. This was said to be inconsistent with the fact that the deceased took a call from Mr Kent at 4:41 PM, which must have occurred before the robbery, and with Mr Phillips' evidence of the unloading of the soft drink after their arrival taking 20 minutes or so to complete. This period, it was submitted, would also not fit in with Painter's evidence of seeing the car pull up. Reference was also made to the fact that Mehajer's mobile rang Painter's mobile at 4:29 PM. 243 Apart from giving rise to an apparent inconsistency in timing, this body of evidence seems to have also been relied upon to show that Painter had a somewhat greater involvement than he was prepared to acknowledge, in that it would tend to suggest that he had been engaged, himself, in some form of surveillance over this period, which he omitted to disclose. 244 The apparent discrepancy is equally explicable upon a simple inaccuracy on Painter's part in estimating the timing of the relevant events, in circumstances where there was no reason for him to make any particular notice of the time at which various things happened. 245 The 4:29 PM call was one that lasted for only a matter of seconds and was not answered. Any number of possibilities exist as to why it was made, and to select any of them would involve speculation. What is however clear is that the robberies occurred somewhere between 4:41 Pm and 4:52 PM. Whether the credibility of Painter's account was affected adversely by the matters mentioned, or whether it was a matter of unimportant detail, was properly to be determined by the jury, which heard detailed argument in relation to it. (d) Painter's account of his first encounter with the victims: 246 This has already been addressed. (e) Painter's evidence concerning the knife: 247 This relates to the fact that Painter's evidence that he did not see anyone with a knife, and did not hear any mention of a threat concerning its use to cut someone's throat, was inconsistent with the evidence of Mr Phillips. This was said to indicate an unwillingness on his part to acknowledge the occurrence of aggravated violence, and his acquiescence in it, lest that contradict his asserted minor role or threaten his indemnity. It is not easy to understand why this should be so, since there was no suggestion by anyone that he personally used the knife. The indemnity was not given in circumstances where the Crime Commission or Police were unaware of its use. (f) Painter's evidence of his search of the car of the deceased: 248 It was asserted that Painter's evidence to the effect that he did not know what he was looking for in the car and made only one search, did not sit with Mr Phillips' evidence of hearing someone say after the search "there should be more", or with his suggestion that the car was searched twice. Again this was relied upon to suggest that Painter had a greater knowledge and involvement than he was prepared to admit. 249 It is not at all clear that Mr Phillips said that the car was searched twice. Nor was it necessarily the case that Painter needed to know what was in the car, if it became perfectly clear to him, from what was occurring, that a search was being made for money. As events turned out all that he found would seem to have been a mobile phone, having missed the wallet of Mr Phillips that was in the vehicle. (g) Painters' evidence that Mehajer was searching the shop: 250 This related to the fact that Mr Phillips said that the Lebanese man effectively overpowered him and restrained him while the search was being undertaken of the premises and while the deceased was attacked, and that this man tried to discourage any further assault of himself after he had been kicked; while Painter said that it was Mehajer who was out the back searching the premises. This, it was submitted, he had said in order to be able to assert that it was Mehajer and not he who struck the fatal blow. 251 This was an important matter for the jury, which was clearly brought to their attention. It was not necessarily fatal to the credibility of Painter since it remained possible for Mehajer to have been seen by Painter carrying out the act, which Painter described, during the time that Mr Phillips had lost consciousness. (h) The order and manner in which the assaults on the deceased and Mr Phillips occurred: 252 This relates to the fact that, in his first statement, Painter said that Jacobs kicked Mr Phillips after the deceased had been pushed by Mehajer, whereas at the trial he said that Mr Phillips was the first to be kicked. This also related to the fact that he said that he only saw one blow being inflicted to the deceased, whereas the medical evidence showed that there were multiple blows to his head and body and that the deceased had been dragged and/or flung about, happenings which were consistent with Mr Phillips' evidence. 253 Again it was submitted that Painter tailored his evidence so as to minimise his involvement, and so as not to jeopardise his indemnity. This was similarly a matter that required attention by the jury, but it did not necessarily involve a significant challenge to Painter's credibility, having regard to his evidence that he had not gone out to the back of the cafe and that he had been outside for a time searching the deceased's car. This does need also to be considered in the context of the time frame within which the offences had to be committed, that is, between at most, the eleven minutes between 4:41 PM and 4:52 PM, and most probably a shorter period having regard to the fact that before his death the deceased had to complete the 4:41 PM call and walk over to Mr Casey's shop and back (Mr Casey thought at about 4:45) to collect the package which Mr Kent had asked him to collect. (i) Painter's understanding that the NSW Crime Commission had believed his role to have been a minimal one. 254 This arose from the fact that on 6 April 2001 Painter was advised by the Commissioner of the NSW Crime Commission, that it had not believed him to have been responsible for any of the violence, and considered that he had been "unlucky" and that "somebody went too far but we don't think it was you." 255 Prior to this Painter had consistently lied to the Commission, but those lies had been exposed. He acknowledged at trial that he understood that the basis for the Commission's assessment of his culpability lay in an intercepted conversation between a girlfriend and a family friend, and also acknowledged that such information as the Commission had, was derived from what he had himself said to those persons to the effect that his role had been minor and that he had not had anything to do with the killing of the deceased. 256 This combination of circumstances was relied upon in support of an argument that Painter had been encouraged by the Commission, and had the confidence, to give an account which minimised his role and shifted the blame to others. 257 Clearly this was an issue which was important for an assessment of his credibility and which led to the strong warning which was given to the jury. Nevertheless it remained a jury issue, and it did not of itself displace the remaining evidence concerning Mehajer's involvement, most particularly that of Jacobs. (j) Calls made to the deceased's mobile after the robbery 258 This related to the several calls made to the deceased's mobile from 5:28 PM after the robbery including those traced to Denning's mobile, to Joel Daddo's phone, and to the phone of Ms Walker, which apparently was available to Pearce; and to the fact that Painter gave evidence to the effect that the deceased's phone, which was then in his possession, had rung after the robbery, and that this call had been made by Mehajer. It was his evidence that this call had been made while they were driving home from the cafe to the stolen mobile into which he had placed his own SIM card, in order to see whether it worked. This was said to be untrue since there was no evidence of Mehajer's phone being used to place a call at that time; moreover, it was pointed out that although Painter had given this explanation, when asked about the call that had been made from Mehajer's mobile to his phone at 4:29 PM, yet, on any view, that call must have preceded the robbery. 259 Attention was also drawn to the fact that each of Painter and Jacobs denied having taken calls on the deceased's mobile phone at 6:25 PM and to the fact that Jacobs said that he had been given the phone without a SIM card; and to the fact that the call made on Denning's phone at 5:28 PM to the deceased's phone had been answered, and did not go to a message bank or to a service using Painter's SIM card. 260 In the result it was contended that there was material capable of suggesting that each of Denning, Pearce, Painter and Jacobs had some kind of guilty connection in that they had given evasive or untrue evidence concerning the phone calls, such that Painter should not have been believed in relation to Mehajer's involvement, having regard particularly to the absence of any evidence connecting Mehajer to Denning or Pearce, or of any other evidence showing that Mehajer ever had either of the stolen phones in his possession. 261 It is not to be overlooked that, on Painter's evidence, the phone which he had was that of Mr Phillips, not the phone of the deceased, and that it was into this phone that he placed his SIM card. Jacobs had the phone of the deceased which he later sold to Nilsen. It follows that so much of this argument as is relied upon to suggest that Painter lied when suggesting that Mehajer rang the deceased's phone to see whether it worked using Painter's SIM card is in error. What he was saying was that it was Mr Phillips' phone that rang on the way home, not the phone of the deceased. 262 The possible involvement of Pearce, Denning and of unidentified members or associates of the Rebels in the offence was raised by the defence, and it was a matter which was fully ventilated and left to the jury. 263 In summary, there were good forensic arguments available to the defence in relation to the credibility of the evidence of each of Jacobs and Painter. However there was independent support for their accounts, and the jury, who were in a position to see and hear them, had a distinct advantage over this Court, in making an assessment of them. I am not persuaded, having exhaustively reviewed and examined the whole of the evidence, that the various aspects which have been raised in relation to this ground were sufficient to lead to the conclusion that the jury ought to have entertained a reasonable doubt in relation to Mehajer's guilt. 264 This ground is not made good in respect of either Appellant. GROUND 8A (MEHAJER) – The Trial Judge Failed to Give a Section 165 Evidence Act Direction in Relation to the Evidence of the Co-Accused Jacobs 265 Section 165, relevantly, is in these terms: "s165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) ... (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury." 266 According to this appellant, two directions were necessary: · First, the jury should have been told that the evidence of the co-accused (Jacobs) may have been unreliable. · Secondly, the jury should also have been told that they should not use the evidence of Painter to corroborate the evidence of Jacobs, since they were both accomplices. 267 Neither direction was sought (cf s165(2)). Rule 4 applies. It was said that counsel's failure to seek these directions was an oversight. There was no other forensic purpose. The Crown accepted that this was so. It is nonetheless instructive that, in the atmosphere of the trial, it did not occur to Counsel that it was necessary to seek the directions that it is now suggested should have been given. His Honour had the power to give warnings, notwithstanding the absence of a request (cf s165(5)). 268 Painter and Jacobs each asserted that Mehajer was at the scene. The evidence of Painter was subject to a warning. The evidence of Jacobs, however, was not. 269 It may be accepted that the evidence of Jacobs was important in the case presented by the appellant Mehajer. Did the failure to provide a warning give rise to the possibility of a miscarriage of justice? It cannot be doubted that Jacobs fell within s165(1)(d), or the common law rule in respect of accomplices. There plainly were reasonable grounds for supposing that he was "criminally concerned in the events giving rise to the proceedings". However, that is not determinative. There is a discretion as to whether a warning should be provided. In Webb and Hay v The Queen (1994) 181 CLR 41, the principle was stated by Toohey J (with whom other members of the Court agreed). That principle was conveniently set out in the headnote in these terms: "Per curiam (1) When an accused gives evidence implicating another accused, the question whether an accomplice warning should be given and, if so, in what terms, cannot be answered without reference to the unique circumstances of the case. (2) If in such a case the judge considers it necessary or appropriate to give a warning to protect the co-accused, it must be done in a way which makes clear that the warning relates only to the use of the evidence as against the co-accused and does not lead the jury to believe that the warning attaches to the accused's evidence in his own case." 270 In formulating that principle, the Court approved the following statement in R v Henning (CCA, unreported, 11.05.90) where the Court (Gleeson CJ, Campbell and Mathews JJ) said this: "But different principles apply when the supposed accomplice who gives evidence against a co-accused is himself an accused giving evidence in his own case. It would be difficult indeed to seek to apply inflexible rules to such situations. For the interests of justice will almost certainly require different responses in different circumstances. Considerable latitude must be allowed in order to enable trial judges to address the situation in a manner which will adapt to the competing interests in the particular case." 271 In R v Johnston [2004] NSWCCA 58, James J considered a situation where the trial Judge had not given a warning against the co-accused who had given evidence implicating the appellant. As here, no warning had been requested. James J (Santow JA and Whealy J agreeing) determined that there had been no error. Rule 4 should be applied. Had the trial Judge given a warning, a corresponding warning would have been given against the appellant. James J said this: (para 149) "If similar directions had been given about both the applicant's evidence and Watts' evidence, the applicant would have been in much the same position as if no direction at all had been given." 272 Here there was no potential for a corresponding warning against Mehajer. His evidence did not incriminate his co-accused Jacobs. There was no forensic disadvantage in seeking the warning. The warning, therefore, on the Appellant's argument, ought to have been given. 273 It is instructive to examine the reasons warnings are given for certain categories of evidence and not others. The issue was examined by Howie J in R v Stewart (2001) 124 A Crim R 371. In Bromley v The Queen (1986) 161 CLR 315, Brennan J made the following statement: (at 325) "When the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence … are such that the jury may not have fully perceived or the jury's attention may have been diverted from the danger, a warning should be given." 274 Elsewhere Brennan J said: (at 324) "If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given." 275 In Longman v The Queen (1989) 168 CLR 79, Deane J made a similar observation: (at 95-96) "[The] responsibility [of a trial judge] includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury." 276 These passages are a commentary upon the common law. In the context of s165 of the Evidence Act 1995, in R v Baartman [2000] NSWCCA 298, Kirby J said this: (para 62) "In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence (see ALRC 26, Vol 1, para 1017)." 277 In R v Stewart (supra), Howie J made the following comments in the context of an "accomplice" warning under s165(1)(d): "127 In respect of accomplices or persons otherwise implicated in the offence before the jury, the matters which were considered by the common law as rendering their evidence suspect and which gave rise to the need for a warning were two-fold: firstly, they may have a reason to implicate another person even to the extent of implicating a person who is in fact innocent of the crime and, secondly, they may tend to exaggerate the role of another while minimising their own involvement and fabricate evidence to achieve this end: R v McLachlan [1999] 2 VR 553 at 562; R v Kendrick [1997] 2 VR 699 at 705; Downey (1997) 97 A Crim R 41 at 44; Ware (1994) 73 A Crim R 17 at 28. 128 As the trial judge in the present case told the jury, these are the matters within the special experience of the courts. Therefore, they are matters which should be drawn to the attention of the jury whenever a warning under the section is given in respect of evidence of a witness falling within this category. These are the matters about which the trial judge is required to inform the jury under s 165(2)(b) unless there is good reason not to do so. ..." 278 However, the tendency in human nature to downplay one's own role, and shift the blame to others by exaggerating their role, may be thought to be obvious, and one which the jury would recognise. Indeed, James J in R v Johnston (supra) said this: "150 There was no need for the trial judge to tell the jury that Watts (or the applicant) had an interest in giving evidence exculpating himself by inculpating the other accused. That would have been blindingly obvious to the jury." 279 That is precisely what was done by Painter, in giving evidence in the Crown case, and by Jacobs, in giving evidence in his own case. Each asserted that he either had no role or a minimal role in the misdeeds of that day. 280 However, whether this aspect was obvious or not, the warning which the trial Judge gave in the context of Painter's evidence expressed the principle in very general terms. Its application to others, who might be reasonably supposed to have also been criminally concerned in the events giving rise to the proceedings, would have been immediately apparent. His Honour said this, in his summing up: (SU61/62) "Can I turn to say something to you now about the evidence that was given by the witness Christian Painter ... I warn you that the evidence of this witness is of a kind that may be unreliable. You appreciate that the Crown contends that Christian Painter was an accomplice to the robberies in company. After all, he is named here in the indictment in the second and the third counts. Evidence given in criminal proceedings, by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the counts charged in the indictment, is in a category that maybe unreliable. Where a crime has been committed, especially a serious one and one involving a number of people, it must be recognised and you would doubtless appreciate it, that there is a temptation for someone involved in describing what occurred, to minimise his own role and to maximise the roles of others, because he was, on the Crown case, an accomplice. That feature, of itself, requires that I warn you that the evidence of Christian Painter is of a kind that may be unreliable." (emphasis added) 281 His Honour went on to deal with other aspects which were important to the "accomplice" direction given in respect of Painter, but had no relevance to the co-accused Jacobs, namely the discount on sentence given to Painter. 282 I am not persuaded that the absence of a warning in respect of Jacobs created the risk of a miscarriage of justice. I would refuse leave under Rule 4 on the first aspect. 283 The second complaint concerned the absence of a direction that the evidence of one accomplice could not be used to corroborate another. The Crown disputed that there was an absolute requirement to this effect, even before the Evidence Act. The principle was stated by Dawson and Gaudron JJ in Pollitt v The Queen (1991-1992) 174 CLR 558 in these terms: (at 600) "The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. The common interest raises the possibility that they may have conspired to give an identical but false account ( R v Button (1991) 54 A Crim R 1 at 8, per Byrne J. See also Heydon, "The Corroboration of Accomplices" [1973] Criminal Law Review 264.) It is for this reason that a direction is given that accomplices cannot corroborate each other ( Director of Public Prosecutions v Hester [1973] AC at 325, per Lord Diplock; Director of Public Prosecutions v Kilbourne [1973] AC at 750-751, per Lord Reid.) Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required (See Director of Public Prosecutions v Kilbourne [1973] AC at 748, per Lord Hailsham.) Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other." 284 That is a statement of the common law. Section 164(1) of the Evidence Act abolished the need for corroboration. There was therefore no need to give a warning relating to the absence of corroboration (s164(2)(b)). However, the "inclusive" nature of s165(1) may still make it appropriate to warn the jury in the terms contemplated by the common law, as set out in Pollitt, where the evidence may be unreliable. 285 Here, the evidence of Jacobs was not adverse to Mehajer, except in two respects, although both were important. First, Jacobs placed Mehajer at the scene. He therefore contradicted the account given by Mehajer in his evidence. Secondly, he said that he saw Mehajer emerging from the back room, implicating him in the injuries received by the deceased. In other respects his evidence was favourable. He did not witness any violence on the part of Mehajer. Such violence as he saw was perpetrated by Painter. 286 The Crown submitted that, even on the common law principle, there was no real possibility of joint fabrication between Painter and Jacobs. The accounts each gave, except in one or two respects, were utterly different. A direction along the lines suggested was, therefore, not required. 287 Again, I am not persuaded. I would refuse leave under Rule 4. GROUND 8 (BOTH APPELLANTS) – His Honour Failed to Direct Properly or Adequately as to the Jury Consideration of Painter's Evidence 288 It was submitted that while his Honour gave directions in relation to the potential unreliability of Painter's evidence in accordance with s 165 of the Evidence Act, an additional direction should have been given to the effect that it was dangerous to convict on the uncorroborated evidence of this witness, by reason of his position as an accomplice. The common law rule of practice was said to have been preserved, notwithstanding the enactment of the Evidence Act. Alternatively it was submitted that by reason of the "counter allegations", and in order to avoid a miscarriage of justice, the case was appropriate for a Longman warning: Regina v Stewart (2001) 124 A Crim R 371. 289 In that regard it was also contended that so important was Painter's evidence for the Crown case, that in circumstances where he was an admitted liar, a strong direction was required as to the dangers of convicting on his uncorroborated evidence (R v Chen [2002] NSWCCA 174 at para 58). A Longman direction was in fact sought by counsel for the Appellants but refused by his Honour. 290 This submission must be considered in the light of the detailed and explicit directions which were given. His Honour said in addition to the general warning extracted in the preceding ground. "There are other matters, further matters that may cause the evidence of Mr Painter to be unreliable. You will remember, after the police took possession of the mobile phone which Painter had taken from the crime scene, he lied in his statement to the police about the circumstances in which he came into possession of that phone. He also had his brother lie about this and he also had his friend, Mr Kohler, lie about it. Then when he was required to give evidence in the Crime Commission, Painter lied again on 22 June and 16 October 2000. It was not until 6 April 2001, over a year after these crimes were committed, that Mr Painter changed his account of events on 3 March 2000 and in doing so, he understood that by co-operating he would not be charged for any involvement in what had taken place. After indicating he would co-operate, you remember Mr Painter changed his mind about that and then the police proceeded to charge him with perverting the course of justice, because of the concoction of the tale about where the phone came from. Eventually, after he was charged and before he came before the District Court to be dealt with for that offence, Painter again decided to co-operate. He told you that he did so because he was concerned for himself and his brother Jason. What he did was to plead guilty in the District Court, to the charge that had been laid as to the perversion of the course of justice. On 29 October 2001 Painter was given a suspended sentence, which was conditional upon his telling the truth in these proceedings. Had he not offered to assist the authorities, he could have expected to have been given a significantly heavier sentence. Now that he was given lighter sentence in the District Court than he would have been given had he not offered to assist in the proceedings now before this court is, I tell you, consistent with sentencing policy administered by the courts in this state. The policy is this, a person who is liable to be punished for a criminal offence, is entitled to have his sentence reduced if he gives assistance to the authorities. The extent of the reduction may depend upon the value of the assistance as a matter of principle. One form of assistance is an undertaking to give evidence about events that the person has witnessed and if such an undertaking is given, it is expected that the undertaking will be complied with. Typically, one person in a group named in the joint criminal enterprise, may agree to name others involved and to give evidence of their involvement. The reduction of punishment for a crime depends in part, upon the provision of such information and assistance and hence, the courts have pursued a policy of providing an incentive for the giving of assistance. Discounts on sentence are given to encourage those with information to come forward. Painter was given a discount off his sentence, because of his expressed willingness to assist the authorities in relation to the events of 3 March. Where a witness gives assistance to authorities in circumstances such as exist here, the evidence given may be unreliable. Having provided a version of events to the authorities, there is a danger that the person offering assistance may feel locked into that version and is obliged to repeat it, even if it is untrue. I am not suggesting, in this case, that Painter has locked himself into giving a false version of events. What you make of his evidence is a matter for you, because I am not the tribunal of fact, you are. However, I am pointing out the circumstances in which Mr Painter came to give his evidence in this court, as being circumstances which may render his evidence unreliable. Whether you find his evidence unreliable, or reliable, is for you to determine as the tribunal of fact. But in assessing his evidence you must appreciate the need for careful scrutiny. There is yet another matter which may cause the evidence of Mr Painter to be unreliable. He has been provided with an indemnity. Although Mr Hoenig has reminded you of this, I am going to remind you of it again in the context of this direction. The indemnity is Ex K, and you will have it before you, and the indemnity is expressed to have been given subject to these conditions. Firstly, that Painter actively co-operates in these criminal proceedings, that is, by giving evidence. And secondly, that his evidence in these proceedings is the truth, the whole truth, and nothing but the truth. It is important that you have regard to the terms of that indemnity., Where a witness gives evidence pursuant to a conditional indemnity, that evidence may be unreliable, because a person giving evidence under a conditional indemnity, such as that provided in this case, may feel locked into giving a particular account, even though it is not true. Once again thought, I stress whether you find Mr Painter's evidence is true or note, is a matter for you to determine. The importance of the evidence of Mr Painter to the Crown case is obvious. He has given evidence, the acceptance of which the Crown relies upon to establish the participation of each accused in the robbery in company, and each accused denies such participation. For the reasons I have stated, members of the jury, it is necessary that you scrutinise the evidence of Mr Painter with extreme care. You should examine it most closely, conscious of the fact that it may be unreliable, in order to determine whether to accept his evidence and in determining what weight you should give to such of his evidence as you do accept." 291 These directions were so comprehensive that it was not, in my view, necessary for his Honour to have given a Longman warning. In any event, there was some corroboration of Painter's evidence in so far as it accorded with that of Mr Phillips, and in so far as Mehajer and Jacobs individually revealed a consciousness of guilt by their subsequent behaviour including the fabrications for which they were responsible. 292 As is apparent from the extract, there was a reference by his Honour to the circumstance that, on the Crown case, Painter had been an accomplice. In R v Stewart (2001) 52 NSWLR 301 at paras 21 and 126 a caution was given that it is preferable for a trial judge to avoid using the expression "accomplice" lest it inadvertently lead the jury to assume that the trial judge has reached a conclusion that the witness was in fact an accomplice of those standing trial, and that they are themselves guilty. However in R v Gutierrez [2004] NSWCCA 22 at para 103 the use of this expression was not held to have involved appellable error. In the present case, the position is perhaps even stronger, since his Honour was not attaching this tag to the witness as being his own description. Rather, he was pointing out that this is what the Crown had asserted and had charged. 293 Next there was, in my view, a sufficient indication to the jury of the significance of his undertaking to give evidence, in so far as it was pointed out that it was conditional upon him "telling the truth in these proceedings", and that absent his offer to assist he would have received a significantly heavier sentence for the charge of perverting the course of justice. While it may have been desirable for the jury to have also been informed of the ability of the Crown to appeal against that sentence, had he failed to comply with his undertaking, I would not regard this as having been essential to a sufficient s 165 direction. Particularly is that so when it was also pointed out that his indemnity for the offences at Colies Cafe was similarly conditional upon him giving truthful evidence in these proceedings. 294 The need to give the common law accomplice direction has been removed by virtue of s 164 of the Evidence Act, and replaced by a requirement, in accordance with s 165, to give the jury a warning that the evidence may be unreliable, and to scrutinize it with great care: R v Spedding NSWCCA 11 December 1997, R v Paek [1999] NSWCCA 184 and R v Stewart (2001) 52 NSWLR 301. 295 Section 165(5), however, leaves it open for a judge to give a Longman warning, or indeed any other warning that is appropriate to the case. This was recognised in R v Stewart at para 85 per Howie J; and also see R v Chen (2002) 130 A Crim R at para 58 and R v Ngo [2003] NSWCCA 82 at para 168. 296 In the present case the trial judge identified the several matters which were relevant for Painter's credibility, which went beyond his potential role as an accomplice and which may have provided an incentive for him to minimise his role and to implicate others. He also instructed the jury: "You should not look at Painter's evidence in isolation. You should look at all the other evidence in the case, to see whether you find support for his evidence in other evidence, which you accept as being reliable and accurate". 297 Warnings are not to be approached as mere matters of ritual. What needs to be said to a jury, in order to ensure that they bring a full appreciation to the case, not only of those matters that might be obvious to them as members of the community, but also those matters which are likely to be better known or understood by judges, will depend upon the individual case. 298 In this instance where there was a very strong and comprehensive warning given in relation to Painter, and there were aspects where his evidence had support, I am not persuaded that any more was required. 299 This ground is not made good. GROUND 9 (JACOBS) - His Honour Erred in Law in Failing to Discharge the Jury on 13 May 2003 Following Questions by the Co-Accused's Counsel as to the Connection of the Appellant with the Rebels Motorcycle Gang. 300 An application was made by counsel for Jacobs, for a discharge of the jury, once this line of questioning was developed by counsel for Mehajer. It was refused, and although directions were later given by his Honour to neutralise the cross-examination, it is now submitted that the evidence was so prejudicial that it could not have been cured by those directions. 301 After referring to the substance of the cross-examination, and after reminding the jury that the Crown had not sought to introduce this material, his Honour said: "There is obvious tension, you may think, between the positions of the co-accused in this case. You may think that their evidence makes this clear, but I want to say something to you about the evidence given by Mr O'Connor to which I have just referred. There, is, I suppose, a danger that that evidence might set off in your minds a chain of reasoning that would be improper and which is prohibited; namely, a course of reasoning like this: The evidence of Mr O'Connor indicates that the accused Jacobs had an association with a motor cycle club which club has an undesirable reputation and is known to be involved in criminal activity. Crimes are more often committed by bad people than good people. Jacob's association with the Rebels would make it more likely that he was guilty of the crime charged than if he had no such association. Well, members of the jury, that in effect is reasoning by association only and you must not adopt such an approach in this case. Were you to do so this trial would miscarry. That would be altogether wrong as an approach. Of course you have direct evidence from Mr Jacobs and it is a matter for you to evaluate it, that he is not and has never been a member of the Rebels motor cycle club." 302 The cross-examination was somewhat imprudent, particularly as none of the witnesses, who had otherwise been accused by Counsel for Mehajer of having an association with the Rebels, had accepted that to have been the case. There was no prospect of any Rebels involvement being established, and at best the cross-examination was of the speculative kind that was designed to throw dust into the air. However, imprudent as it was, I am satisfied that it was effectively neutralised by the directions that were given, and that this ground has not been made good. Additionally it was the case that the evidence which was adduced was somewhat vague being cast in terms of this Appellant "having connections with the Rebels", a concept falling short of him being a member, or a nominee or an associate of the Rebels. Moreover the matter seems not to have been taken up at any later stage of the trial. 303 I am not satisfied that his Honour erred in the exercise of his discretion in declining to discharge the jury. This ground is not made good. GROUND 10 (BOTH APPELLANTS) – His Honour Erred in Law in Failing to Direct on Manslaughter 304 It was submitted that, in the absence of any intention to kill or inflict grievous bodily harm, and in circumstances where the evidence was confusing in respect of the roles of those involved, manslaughter should have been left as an alternative to Count 1. This was necessary, so it was argued, in case the jury were not satisfied as to which of the persons had done the act causing death. 305 Although it was recognised that this would have given "an air of unreality to the case (of the Appellants), nevertheless it was submitted that the issue of manslaughter should have been left, consistently with the decisions in Gillard v The Queen (2003) 78 ALJR 64; Gilbert v The Queen (2000) 201 CLR 414 and R v Stokes and Difford (1990) 51 A Crim R 25. 306 So far as this ground depends upon a submission that there was no case to answer of constructive murder because the Crown could not prove which offender struck the fatal blow, this has already been addressed. 307 The principal submission relates to the question whether, even though defence counsel had not made a request that manslaughter be left, nevertheless it was mandatory for his Honour to have done so, of his own motion. 308 Smart AJ gave consideration to this question recently in R v King [2004] NSWCCA 20 at [110], where he suggested that the following principles emerge on the authorities (particularly Gilbert v The Queen and Gillard v The Queen: "(a) Where on a trial for murder, there is a viable case of manslaughter to be left to the jury, the refusal to do so constitutes a wrong decision on a question of law: Gillard v The Queen 2003 HCA [par 26]; [par 32]; [par 85]; [par 106]. (b) This raises the question of the proviso. It is not an answer to such refusal or failure that the jury were correctly instructed on the elements of murder and that since they convicted the accused (appellant) of murder there is on that account alone, no miscarriage of justice. The jury were deprived of the opportunity to consider an intermediate position. (c) The principle stated in Gillard is not limited to instances of murder and manslaughter, but applies where a serious offence is charged and there is a lesser alternative offence, the conviction for which would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result. See Fairbanks , Maxwell , Gillard and Elfar [par 5]. Where this is the position it is in the interests of justice for the alternative count to be left. However, there are limits to the principle earlier stated in this sub-paragraph, including: (i) where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it ( Fairbanks at 1206 ; Maxwell at 1269) (ii) where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case ( Fairbanks at 1206; Maxwell at 1269) (d) If the Crown wishes the jury to consider the alternative offence in the event of them finding the accused not guilty of the principal offence the Crown must open the alternative offence to the jury. (e) The judge should leave the lesser offence where conviction on that is a viable outcome even if the accused does not seek that where it is in the interests of justice and in the interests of the accused to do so. This transcends adversarial and tactical considerations." 309 Although the view was once held, as Lee J stated (with the concurrence of Street CJ and Enderby J) in R v Elliott and Hitchins (1983) 9 A Crim R 238 at 251 that "manslaughter has no relevance to a charge of murder based only on felony-murder" that view no longer has concurrency. In Spathis and Patsalis [2001] NSWCCA 476, Carruthers AJ (with whom Heydon JA and Smart AJ agreed) held that the alternative verdict of manslaughter, in a case where the Crown relied solely upon felony murder, was available "in an appropriate case". His Honour said [at 248]: "One can readily think of examples. There may be an issue of fact to be resolved by the jury as to whether the act causing death occurred immediately after the commission of the foundational offence, or whether such act was too remote in time. If the jury were not satisfied that the relevant act occurred sufficiently proximately to the commission of the foundational offence, it would, nevertheless, be open to them in an appropriate case, to convict the accused of manslaughter on the basis that the act which caused death was an unlawful and dangerous act." 310 The present case would not fall within the scope of this example since the blow or blows causing death clearly occurred during or immediately after, the commission of the foundational offence, whether that was the offence charged in Count 2 or that charged in Count 3. 311 In this regard the expression "immediately after" had been given a common sense interpretation. For example, in Elliott and Hitchins Lee J said: "In my view counsel's submission should not be upheld. What s. 98 plainly contemplates is that the act of wounding is to have a relationship both in fact and in time to the robbery and not to be regarded as a matter unassociated with that event. But the word 'immediately' does not require to be given a meaning which would restrict the application of the section to an event occurring within second or minutes of the termination of those particular actions which constituted in law a robbery of the victim. The whole of the circumstances involved in the robbery must be looked at and a decision made against the entire context of the evidence in regard thereto." 312 The present is a case where the attack on the deceased was intrinsically involved in the commission of the two robberies, having been made while searches were being carried out of the cafe and motor vehicle, and while pressure was being applied to the victims for the disclosure of where the "cash" and/or "the stash" were. It would have been fanciful to regard this as a case where the relevant act was too remote from the foundational crime to exclude constructive murder. 313 Moreover this was not a case where the Crown could have established manslaughter against either accused by reference to an independent unlawful and dangerous act, falling outside the joint enterprise, whether in its basic or extended form. That arises from the circumstance that it could never have proved who struck the fatal blow or blows. 314 In summary, this was not a case where manslaughter was a viable alternative. To have left it as an alternative could only have complicated an already complicated case, and may even have been unfairly prejudicial to the Appellants. If the offence of constructive murder was not established then they were entitled to an outright acquittal on Count 1. 315 I would dismiss this ground of appeal. 316 Three further grounds were pursued by Mehajer, which were numbered 12 to 13 (Ground 11 being that which was formulated by Jacobs in relation to the sentence appeals. GROUND 11 317 This a ground relating to the application for leave to appeal against sentence, to which I will return. GROUND 12 (MEHAJER) – The trial miscarried by reason of the trial judge allowing into evidence certain inadmissible and prejudicial material. 318 This ground relates to the admission into evidence, over objection by counsel for Mehajer, but not counsel for Jacobs, of that part of the intercepted telephone call between the Appellants, on 21 August 2000, when Jacobs instructed Mehajer "get rid of all your shit". This had followed upon Jacobs speaking to police, and it was relied upon by the Crown as advice to get rid of anything which was in Mehajer's possession and which had been taken from the cafe in the course of the robberies. 319 Counsel for Mehajer however contended that there was a risk of the jury drawing an inference from it that he was a dealer in drugs, in which event its prejudicial effect would have substantially outweighed its probative value to the point where it should have been excluded. 320 It is improbable in the extreme that the jury would have understood this instruction, when read in the context of the entire conversation, in this way. That followed from the fact that the conversation, on its face, was dealing with only one topic, namely Jacob's meeting with police and the false story which he had given to them. Even if it was the case that the ordinary member of the community would have had an understanding that the expression "shit" is sometimes used to mean drugs, this would not, in any event, have been unfairly prejudicial, in a case where the Crown alleged that the purpose of the criminal enterprise was to steal drugs and/or money and where evidence had been led of an inquiry by one of the offenders as to the location of "the stash". 321 I am not persuaded that his Honour erred in allowing this portion of the conversation to go into evidence, as being relevant to the issue concerning Mehajer's involvement, and participation in the presentation of a false story to police. In this regard it formed but part of a very relevant conversation which followed Jacob's visit to police and Mehajer's inquiry as to whether police were, in effect, interested in him. There was, in my view, no occasion to edit the conversation, in circumstances where, on my assessment, there was no tangible risk of the jury attaching to this brief passage an interpretation that would have been unfairly prejudicial. 322 This ground is not made good. GROUND 13 (MEHAJER) – The Verdicts of the Jury were Unsafe and Unsatisfactory Given all of the Above Matters and Considering a Number of Inconsistencies Between and Relating to the Evidence of Important Prosecution Witnesses. 323 This ground relied upon what were said to be material inconsistencies between the objective evidence, the evidence of Mr Phillips, and the evidence of Painter. 324 This ground has been separately addressed, and it is not made good. GROUND 14 (MEHAJER) – A Miscarriage of Justice Resulted from a Combination of the Matters Stated in the Preceding Grounds. 325 It was submitted that the combination of misdirections, failures to direct, and allowance into evidence of inadmissible evidence led to the trial of Mehajer miscarrying: R v Clough (1992) 28 NSWLR 396 at 408 and R v Giam (1999) 104 A Crim R 416 at 422/3. Since none of the other grounds argued had been made good, this ground fails. APPEALS AGAINST SENTENCE 326 The Appellants relied upon essentially the same grounds in support of their applications for leave to appeal against the sentences that were passed. Those grounds were as follows: THE SENTENCES WERE EXCESSIVE: (a) IN THAT COUNT 1 WAS CONSTRUCTIVE (OR FELONY/MURDER). (b) THE PRINCIPLES OF TOTALITY DID NOT APPLY. (c) THE SENTENCE IN COUNT 3 SHOULD NOT HAVE BEEN PARTLY CUMULATIVE. (d) COUNTS 2 AND 3 WERE FOUNDATIONAL CRIMES. (e) HAVING REGARD TO GROUND 5. 327 Additionally, Mehajer relied upon the following ground: THE SENTENCING JUDGE ERRED IN RELATION TO CERTAIN FACTS FOUND ADVERSE TO THE APPELLANT MEHAJER IN THE SENTENCING PROCEEDINGS AND AS STATED IN THE REMARKS ON SENTENCE. 328 In substance it was contended that since the foundational crime relied upon for Count 1 was that charged under either Count 2 or Count 3, those counts should have been charged in the alternative. It followed, so it was submitted, that there was double jeopardy involved which would have been avoided had the foundational crime reflected a combination of Counts 2 and 3. 329 Next, it was submitted, on behalf of both Appellants, that the sentences for Count 1 were outside a legitimate range for sentencing discretion in relation to an offence of constructive murder. 330 Simply because Counts 2 and 3 were foundational crimes did not mean that they could not be separately charged, or that sentences should not have been imposed for both. The permissibility of doing so is established by long standing practice: see R v McGarritty NSWCCA 10 June 1994. By reason of the fact that the sentence for Count 2 was wholly concurrent with the sentence for Count 1, there can be no question of the Appellants having been punished twice for the offences that were committed in relation to the deceased. 331 In order to give effect to the principles of totality, in a case where there were two victims, who each became the subject of serious criminality, there had to be some accumulation of sentence. His Honour's sentence did not offend the principles established in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15, and it is plain from the remarks on sentence that the accumulation was directed by reason of the additional criminality involved in a case where there were two victims. 332 Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93. 333 On any view this was a very serious case of constructive murder, being one in which three men went to the cafe with the intention of carrying out a robbery, where very significant violence was inflicted, where a knife was used and where the victims were callously abandoned at the premises. 334 There is nothing in his Honour's reasons to suggest that he overstated its seriousness, or that he failed to pay regard to ss 3A and 21A of the Crimes (Sentencing Procedure) Act, to which he made express reference. 335 Nor is there any reasonable basis upon which to suggest that he was in error in the following finding: "I am satisfied beyond reasonable doubt that each of the prisoners entered Colie's Cafe sharing the common purpose of robbing the deceased and his companion. I am further satisfied beyond reasonable doubt that during the course of that robbery in company, grievous bodily harm was inflicted upon the deceased. I find further that such infliction was a contingency which each of the prisoners had in mind as being such as might occur during the robbery in company. I add that I find that Mehajer entered the cafe armed with a knife. I am satisfied he was the first of the intruders to enter the cafe and that he used the knife in the manner described by Phillips. I am satisfied beyond reasonable doubt that Jacobs entered the cafe whilst Mehajer was using the knife in the manner described by Phillips and to my mind the conclusion is inescapable that Jacobs was aware that Mehajer was using the knife in the way Phillips says that he was." 336 Elsewhere his Honour noted that as the proprietor of a small business, the deceased was in a position of vulnerability. His Honour also rejected the proposition that Jacobs' role was merely peripheral, finding him to have actively participated in the enterprise. 337 There is nothing in the reasons for sentence to suggest that his Honour overlooked the subjective circumstances of the Appellants, which were generally favourable, and which led to an assessment that their rehabilitation prospects were "reasonably good" (Mehajer) and "favourable" (Jacobs). As his Honour noted, however, neither had expressed or manifested any contrition for the crime. 338 His Honour directed his attention to whether there were special circumstances, and found that there were none. There was no error in this regard since the case was one for which the principles considered in R v Simpson [2001] NSWCCA 534 applied. 339 Reference to the sentencing statistics, which the Appellants submitted would show that the sentences fell outside a legitimate range of sentencing discretion, does not assist. As the Crown pointed out, the statistics for an offence of murder committed at about the time of this offence, were said in R v Hearne (2001) 124 A Crim R 451 to reflect a median full term for all offenders of about 18 years with a median minimum term or non-parole period of 14 years. 340 I am not persuaded that the sentence imposed for any of the three counts was outside a legitimate range of sentencing discretion, for offenders who were each aged in their twenties at the time of the offences, and who were not entitled to any discount for pleas of guilty, or for contrition. 341 In relation to Mehajer's additional ground, it was submitted that the evidence did not support his Honour's findings beyond reasonable doubt, that: (a) He had been equally responsible for the blows that were inflicted and that it was he who had punched the deceased after Mr Phillips has lost consciousness; and that (b) He had been the ring leader in what had occurred. 342 In relation to these last mentioned submissions, counsel suggested that there was evidence available to suggest that the man of Lebanese appearance who had been found to be Mehajer had: (i) been standing over Mr Phillips when Jacobs or Painter kicked him and therefore had not himself caused his wounds; (ii) actually discouraged any further violence towards Mr Phillips; (iii) had been restraining Mr Phillips when the latter heard the deceased's breathing becoming laboured, thereby suggesting that it had been Jacobs or Painter rather than he who had inflicted the fatal blow; and (iv) remained in the premises while Jacobs or Painter had gone outside to search the car and had said, on his return, "there should be more", suggesting that whichever of these men had done this was a person with prior and greater knowledge than himself. 343 It was contended that the evidence of Painter and Jacobs did not provide a reliable basis for an apportionment of responsibility between the three men who were present, particularly having regard to the medical evidence suggesting that the deceased received multiple blows, and Mr Phillips' evidence of a struggle occurring out of his sight while he was stood over by the man of Lebanese appearance. In these circumstances it was submitted that there was no proper basis for differentiating between Jacobs and Mehajer in relation to the sentences that were imposed, particularly as their subjective circumstances were similar. 344 His Honour's findings in relation to Mehajer having a somewhat greater role than Jacobs, were based upon his assessment that Mr Phillips had been an honest and reliable witness, who had not been mistaken as to having been threatened by Mehajer with a knife; that Mehajer had driven Painter and Jacobs to the cafe; that Mehajer had led the other intruders into the premises; that Mehajer had asked "where is it, where's the cash, where's the stash. I am cutting your friend's throat here"; that Mehajer had introduced Painter and Jacobs before driving out to the cafe; and that Jacobs had not been armed. 345 While it is the case that his Honour did not find it possible to determine beyond reasonable doubt which of Painter and Jacobs first struggled with the deceased, or which of Painter, Jacobs or Mehajer struck the blows that brought about the death of the deceased, I am not persuaded that the case was one where there was insufficient evidence to justify his Honour's assessment that Mehajer had been the ring leader. 346 This Court is a court of error. It is not a court of rehearing or a primary fact finding tribunal: see R v Crowley [2004] NSWCCA 256 and R v Randell and McAlister [2004] NSWCCA 337. 347 In those circumstances I am unpersuaded that his Honour was in error in differentiating between the two offenders, and the appeals against sentence are not made good. 348 I would propose the following orders: Appeal by Mehajer: 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted; 3. Appeals against sentence dismissed. Appeal by Jacobs 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted; 3. Appeals against sentence dismissed. 349 SPERLING J: I have read in draft the judgement of Wood CJ at CL in these appeals. I agree with the orders which he proposes, and with his reasons with a modest qualification. 350 Ground 8A (Mehajer) is dealt with at [265] and following of the judgment. I would prefer to put my decision rejecting that ground of appeal on the following footing. 351 In Johnston [2004] NSWCCA 58, as in the present case, there was no request for a warning pursuant to s165(2) of the Evidence Act 1995. In consequence, s165 had no application. The common law, which is preserved in relation to this topic by s165(5), applied. That is the situation in the present case. 352 James J (with whom Santow JA and Whealy J agreed), at [145], cited Webb (1993 – 1994) 181 CLR 41 for a convenient statement of the position at common law. Relevantly it is this. Where the alleged accomplice who testifies is one of the accused, there is no common law rule that an "accomplice" warning must be given; whether to do so is discretionary: per Toohey J [at 94 – 5], Mason CJ and McHugh J [at 56] and Deane J [at 80] agreeing, and per Brennan J [at 66]. James J also cited Henning (CCA, 11 May 1990), which is to the same effect. 353 Conformably, James J went on to say, [at 147]: It is clear from Henning and Webb that when in a joint trial one accused gives evidence which incriminates a co-accused, there is no inflexible rule that any warning should be given and considerable latitude must be allowed to the trial judge in deciding, in the circumstances of the particular case, whether any direction should be given and, if so, what should be the terms of the direction. 354 Having regard to the considerations relative to the present case which are mentioned by Wood CJ at CL, an "accomplice" warning was unnecessary in this case. There was no error by the trial judge in not giving such a warning. 355 KIRBY J: I agree with Wood CJ at CL. ********** Last Modified: 12/21/2004 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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