R v GARLAND [2005] NSWCCA 188

New South Wales Court of Criminal Appeal

CITATION: R v GARLAND [2005] NSWCCA 188

HEARING DATE(S): 9 May 2005

JUDGMENT DATE: 9 May 2005

JUDGMENT OF: Hulme J at 1; Barr J at 14; Buddin J at 15

DECISION: Refuse the Applicant leave under Rule 4 to rely on the grounds of appeal advanced; Dismiss the application for leave to appeal.

Regina PARTIES: Wayne Lee Garland

FILE NUMBER(S): CCA 2005/218

Crown: V Lydiard COUNSEL: Appellant: S Corish

Crown: S Kavanagh SOLICITORS: Appellant: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1165

LOWER COURT JUDICIAL OFFICER: Williams DCJ

- 4 - IN THE COURT OF CRIMINAL APPEAL 2005/218

HULME J BAR J BUDDIN J Monday 9 May 2005 R v Wayne Lee GARLAND Judgment 1 HULME J: On 2 June 2004 Wayne Lee Garland was arraigned on two charges: (i) That he on 29 December 2002 at Emu Plains… while armed with an offensive instrument, namely a metal tool, did rob Patricia Ann Horley of a sum of money the property of Patricia Ann Horley. (ii) That he on 29 December 2002 at Emu Plains… while armed with an offensive instrument, namely a metal tool, did rob Emma Louise Harvey of a wallet containing personal papers, the property of Emma Louise Harvey. 2 To these charges he pleaded not guilty but on 9 June 2004, a jury convicted him of both. He was sentenced by Judge Williams on 25 June 2004. 3 He has appealed against his conviction on two grounds, viz:- (i) The learned trial judge erred in his directions to the jury on circumstantial evidence. (ii) The learned trial judge erred in his directions to the jury concerning consciousness of guilt to be inferred from evidence of flight of the accused. 4 Neither of these matters was the subject of complaint at the trial or of a request for further or other directions. Hence it is necessary for the Appellant to obtain leave under Rule 4 in respect of both. There is no appeal against sentence. 5 The Crown case was that, on 29 December 2002, 2 persons, one taller than the other had, at about 4.15pm, entered the Emu Plains Cake Shop, baled up William and Patricia Horley the owners, Emma Harvey Louise Manley who were employees of the business, taken a cash float of $747 and a bag and its contents belonging to one of the employees and then decamped. The shorter offender was said to have been armed with a wrench or similar tool and the taller with a tyre lever. 6 At around 5.40 the same day police saw a Toyota Tarago van heading east on the M4 Motorway at a location which was described by reference to two large service centres in the Blacktown-Eastern Creek area. A little later, the same van was seen at the off-ramp from the Motorway at Parramatta and then proceeding along Parramatta Rd. After receiving information about the vehicle the police then activated their warning lights and siren. The Tarago did not stop and a pursuit began involving the disobeying of traffic lights, erratic driving, collisions with other vehicles and speeding. During the pursuit a civilian witness saw something thrown from the Tarago by, according to the witness, the driver of the van. The object landed ultimately adjacent to the witness who identified it as a wrench or ratchet spanner. 7 The Tarago eventually stopped and the occupants fled. The Appellant was arrested soon after and a bum-bag seized. In the bum-bag the police found a bundle of cash in 5, 10 and 20 dollar denominations. A police officer recognised the Appellant as the driver of the Tarago. 8 The other occupant of the Tarago who fled from the front passenger seat threw a red "Winnie the Pooh" bag in a garbage bin as he ran. The bag contained Ms Harvey's purse, a blue Nike jacket and 2 pieces of yellow material in the form of sleeves. When apprehended this person was also in possession of canvas containing the sum of $290. There was evidence at the trial that the co-offender, whom the Crown contended was the Appellant, had been wearing a jacket of a similar colour minus sleeves. 9 In the Appellant's trial, there was no issue that the robbery had occurred, no issue that the passenger in the Tarago, a Mr House, was one of the robbers, no issue that the Appellant had been the driver of the Tarago. What was in issue was whether the Appellant was the second of the robbers and also whether it was he who had thrown the object out of the Tarago. He gave evidence to the effect that it was his passenger who had done that, and that when the police activated their lights and siren, his passenger had said that he (the passenger) was wanted by the police and that the Appellant should "drive, drive, drive" and the Appellant had panicked and "just drove". When interviewed by the police he had given a different explanation for his flight from them.. 10 The grounds of appeal against conviction both assert error in the directions given to the jury in that it was said his Honour should have given further directions – one the customary circumstantial evidence direction said to have been essential in this case, and the second, that the judge had not told the jury that to use the evidence of flight against him, the Crown had to exclude all other hypotheses consistent with non-involvement in the offence charged. 11 It is true that the directions given to the jury did not contain, in terms, the directions now contended for. However, the issue for the jury was extremely simple, viz was the second robber the Appellant? The trial judge, time and time and time again emphasised to the jury the need for the Crown to prove its case beyond reasonable doubt. 12 Indeed, his Honour went further and in a number of directions unduly favourable to the Appellant, virtually told the jury that they would not use anything against him unless it was proved beyond a reasonable doubt. I do not intend to canvass at great length the grounds of appeal. I have considered them and the arguments advanced both in writing and orally on behalf of the Appellant, but I am satisfied that there was no miscarriage of justice or other event which justified either allowing the appeal or indeed, in light of the absence of complaint below, granting leave under Rule 4 for the matters to be argued. 13 I am of the view the Court should refuse leave under Rule 4 and dismiss the application. 14 BARR J: I agree 15 BUDDIN J: I also agree. 16 HULME J: The orders of the court are, refuse the Applicant leave under Rule 4 to rely on the grounds of appeal advanced. Dismiss the application for leave to appeal. **********