New South Wales Court of Criminal Appeal CITATION: CDR v Regina [2005] NSWCCA 404 HEARING DATE(S): 18/11/2005 JUDGMENT DATE: 24 November 2005 JUDGMENT OF: Simpson J at 1; Adams J at 2; Hoeben J at 3 DECISION: Appeal dismissed. CATCHWORDS: CONVICTION APPEAL - Whether guilt or innocence alternatives constituted error when put to jury in summing up - points not taken at trial - whether failure by Crown to particularise individual acts constituting offence amounted to error. Crimes Act 1900 LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Bartho v The Queen (1978) 52 ALJR 520 CASES CITED: Director of Public Prosecutions v Shannon [1975] AC 717 CDR - Appellant PARTIES: Regina - Respondent FILE NUMBER(S): CCA 2005/2239; 2005/1060 Ms B Rigg - Appellant COUNSEL: D Arnott SC - Respondent Crown Steve O'Connor, Solicitor for Legal Aid - Appellant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown LOWER COURT JURISDICTION: District Court 04/11/0396 LOWER COURT FILE NUMBER(S): 04/11/0225 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2239 2005/1060 SIMPSON J ADAMS HOEBEN J Thursday, 24 November, 2005 CDR v REGINA Judgment 1 SIMPSON J: I agree with Hoeben J. 2 ADAMS J: I agree with Hoeben J. 3 HOEBEN J: Following a trial in the District Court before Judge McLoughlin SC and a jury, the appellant was on 28 June 2004 convicted of the following five offences: Count 1 – Robbing Mrs Butler of her handbag and contents – contrary to s94 Crimes Act 1900 (maximum penalty imprisonment for 14 years). Count 2 – Assaulting a police officer (Constable Sarah Davis) in the execution of her duty – contrary to s58 of the Crimes Act 1900 (maximum penalty imprisonment for 5 years). Count 3 – Resisting a police officer (Constable Sarah Davis) in the execution of her duty – contrary to s58 Crimes Act 1900 (maximum penalty imprisonment for 5 years). Count 4 – Assaulting a police officer (Constable Sivapirathoshan) in the execution of his duty – contrary to s58 of the Crimes Act 1900 (maximum penalty imprisonment for 5 years). Count 5 – Resisting a police officer (Constable Sivapirathoshan) in the execution of his duty – contrary to s58 of the Crimes Act 1900 (maximum penalty imprisonment for 5 years). 4 On 16 September 2004 his Honour sentenced the appellant in addition to those matters arising out of the jury verdicts, to two offences under the Drug Misuse and Trafficking Act, to which he had earlier pleaded guilty in the Local Court. The offences were supply prohibited drug (heroin) contrary to s25(1) of that Act and supply prohibited drug on an ongoing basis (heroin) contrary to s25A(1). His Honour was also asked to take five matters into account which had been scheduled on a Form 1. 5 His Honour sentenced the appellant in the following way: Offence Non Parole Period/Fixed term To date from Parole period Robbery 2 years 6 months (NPP) 3 January 2004 15 months Assault police 6 months (FT) 3 January 2004 Resist police 6 months (FT) 3 January 2004 Assault police 6 months (FT) 3 January 2004 Resist police 6 months (FT) 3 January 2004 Supply drug 8 months (FT) 3 January 2004 Supply drug 1 year (NPP) 3 October 2005 2 years Continuing The aggregate non-parole period was 2 years and 9 months with an effective parole period of 2 years. His Honour found no special circumstances in respect of the sentence for the robbery offence, but found special circumstances in respect of the drug offences. Factual background to offences 6 The Crown case was that on the afternoon of 3 January 2004 Mrs Butler was walking along Riley Street, Surry Hills when the appellant approached her from behind. The strap of her handbag was over her shoulder. Without warning the appellant tugged at her arm, the strap fell from her shoulder, the appellant seized the bag and ran away. 7 The appellant, who gave evidence in the trial, admitted that he stole the handbag from Mrs Butler but without the necessary force to sustain a conviction for robbery. The appellant claimed that he did not touch Mrs Butler but simply removed her handbag which was protruding out the back of her arm. The evidence of Mrs Butler was that her arm had been grabbed, her shoulder had been pulled down very hard and that she had had bruising on the upper part of her arm for approximately two weeks. 8 The appellant in his haste ran into the rear of a car then travelling in Riley Street. The driver of that vehicle, Mr Turner, gave evidence which supported that of Mrs Butler. 9 The car following that of Mr Turner, was an unmarked police vehicle containing two police officers, Constables Davis and Sivapirathoshan (referred to in the trial as "Constable Siva"). The police vehicle activated its siren and gave chase. As the police vehicle drove beside the appellant Constable Davis, who was a passenger in the vehicle, identified herself from the car as a police officer and called upon the appellant to stop. The appellant continued to flee on foot until he was cornered in a dead-end street. 10 Constable Davis was the first to alight from the car and approach the appellant. It was the Crown case that as she attempted to pull one of his arms behind his back to handcuff him, he punched her to the side of the head, pushed her against a wall, punched her to the head again several times, as well as to the chest. 11 Constable Siva saw the appellant punching Constable Davis and yelled out from the end of the road for him to get away from her. The appellant was then handcuffed, placed under arrest and walked to the scene of the offence. It was the appellant's case that he did not strike Constable Davis at any time and that he did not struggle or otherwise resist being arrested by her. 12 It was the Crown case that as the appellant was being taken by the two constables back to the scene of the offence, he was continuously struggling. Constable Siva put a call in for a caged police truck. When it arrived Constable Siva searched the appellant at the rear of the truck. During that procedure the appellant kicked back with his leg on a number of occasions, striking Constable Siva's thighs and shins. He continued to struggle and resist during this procedure. 13 It was the appellant's case that he returned co-operatively with the police to the scene of the offence and waited quietly for the arrival of the caged truck. While he was being put in the back of the truck he said that his head was on three occasions deliberately pushed by Constable Siva against the top of the door of the truck. It was that which caused him to kick out at Constable Siva by way of protest and defence at this unlawful assault on him by the constable. 14 The Crown case was a strong one. The evidence as to robbery came from Mrs Butler and from Mr Turner. The evidence as to resisting Constable Davis and assaulting her came from her and Constable Siva. The evidence as to the assaulting and resisting Constable Siva came from Acting Sergeant Wensley, the driver of the truck, and was generally supported by lay witnesses including Mr Turner and Mrs Butler. Not only did Mrs Butler, Acting Sergeant Wensley and Constable Siva say that the appellant's head had not struck the top of the truck but the appellant had failed to make any complaint about that despite complaining of a number of other matters when he arrived at the police station. Grounds of Appeal 15 Initially the following grounds of appeal were relied upon. A. The trial was a nullity because the appellant was arraigned in the absence of either the jury or any jury panel. B. In the circumstances of this trial there was such a fundamental flaw in the proceedings, in that the appellant was not arraigned in the presence of the jury panel or the jury, that the trial miscarried. C. His Honour was wrong in directing the jury that they could find support for the evidence of Constable Davis relating to count 2 in the evidence of Constable Siva's account of subsequent events. D. His Honour failed to direct the jury as to the significance of Constable Siva possibly acting outside the scope of his duties and failed to explain to the jury what he meant when he raised the issue of the possibility of Constable Siva acting illegally. E. His Honour was in error in twice directing the jury that they had to determine whether the accused was guilty or innocent. F. The Crown failed to identify what act or acts of the appellant constituted the offence in Count 5 of the indictment and in the circumstances of this case, the trial thereby miscarried. G. His Honour was in error in failing to require the Crown to identify what act or acts of the appellant constituted Count 5. H. The appellant was visited with significant unfairness in that the Crown significantly altered its case against the appellant during the trial in respect of Counts 2 and 3 and in the event there has been a miscarriage of justice. There was also an appeal against the sentences on the basis that they were manifestly excessive. The Crown cross-appealed against the sentences awarded by his Honour on the basis that they were manifestly inadequate. 16 When the matter came before this Court, all of the grounds of appeal including the appeal against the severity of sentence were abandoned except for Grounds of Appeal E and F. Since the Crown's appeal against sentence had been essentially a defensive measure, it also was abandoned. The issue before this Court therefore was an appeal against conviction restricted to Grounds E and F. Ground of Appeal E - His Honour was in error in twice directing the jury that they had to determine whether the accused was guilty or innocent. 17 The first passage complained of is at SU 27.9 in the context of his Honour referring to the conflict in evidence between Mrs Butler and the appellant in relation to the robbery offence. His Honour said: "Now there is some other evidence from the other witnesses that I will take you to, but once again I can only but repeat to you, you take it all into the jury room, you have heard the evidence, if you want any more of it played back to you, it will occur. You decide as to the accused's guilt or innocence." 18 The second passage (SU 34.4) occurred in the context of his Honour reviewing the evidence of a Mr Duane that as the appellant was being escorted by the constables he was swearing: "He does not recall seeing the search of him or the shoe removal, and did not see him hit his head on the rear of the truck. But he describes the scene to you. That you may think is consistent with the police officer. You may think it consistent with what the accused says. They are matters that you take into account in your determination of the guilt or innocence of the accused." 19 The appellant also relies upon other passages (for example SU 25.2) where it is submitted the jury may have erroneously thought that it was necessary to accept the appellant's evidence for there to be a verdict of not guilty: "If you accept the accused's evidence you would obviously have a doubt and you would find him "not guilty"". 20 The appellant accepted that his Honour did on a number of occasions point out that it was not necessary for the accused to prove his innocence. The problem was that in a case where there were conflicting versions of events before the jury, directions by his Honour of the kind referred to were apt in a profound way to confuse the jury as to their task. 21 The potential danger in such directions is clear and was pointed out by the High Court in Bartho v The Queen (1978) 52 ALJR 520 at 522: "In some cases the jury may not be persuaded of the innocence of the accused, and may indeed entertain a strong suspicion that he is guilty, but may nevertheless properly return a verdict of not guilty because they are not satisfied of his guilt. Therefore the applicant submits, with the support of a dictum of Lord Simon of Glaisdale in Director of Public Prosecutions v Shannon [1975] AC 717 at 764 that "guilty/not guilty" are not synonymous with "guilty/innocent", and that to tell the jury that their duty is to decide between guilt and innocence may suggest to them that they should convict unless the evidence establishes that the accused was innocent; at least it may divert the jury from their task of deciding whether the Crown has established the guilt of the accused." The question for the Court is whether such a situation arose in this case. 22 When points of this kind are taken, it is useful to remember that this Court has not had the benefit of hearing and seeing the witnesses and of hearing the summing up in that context. In other words this Court of necessity cannot be aware of the atmosphere of the trial. The persons in the best position to make that assessment are counsel conducting it. It is therefore not without significance that no point was taken by counsel representing the appellant at trial in relation to this aspect of his Honour's summing up. A number of points were taken at the conclusion of the summing up but this was not one of them. If counsel appearing for the appellant at trial had considered this to be an important matter, and that the jury were likely to be misled, one can infer that the point would have been taken. 23 It is clear from a reading of the whole of the summing up why such a point was not taken. The references to "guilt or innocence" – an expression calculated to indicate that these were alternatives for the jury to consider – were quite inappropriate. Nevertheless the summing up as a whole is replete with references to the fact that the Crown had the onus of proving the guilt of the accused and that the accused had no burden to prove anything and was not required to prove his innocence. His Honour repeated on a number of occasions that the standard of proof required was proof beyond reasonable doubt. This was repeatedly emphasised. 24 In contrast to the two references upon which reliance is placed, there are the following references in the summing up to the Crown bearing the onus of proof and that the standard was proof beyond reasonable doubt: SU 18.2, 18.5, 18.9, 19.1, 19.3, 19.8, 22.4, 23.4, 23.8, 27.2, 29.3, 32.4, 36.7, 51.3, 51.9, 53.6, 54.1, 54.5, 54.9, 55.1, 56.4, 56.8, 58.3, 58.8, 59.4. 25 The effect of these directions is well demonstrated by the last of the above references: "If after having given consideration to the evidence of the accused and evidence of which the Crown asks you to take into consideration, you do not accept the evidence of the accused, but that evidence nevertheless, leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any of the essential matters, which it must prove, then you are bound in law to bring in a verdict of not guilty. In other words it is not the position that you have to believe that the accused is telling the truth before he is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charges which it brings against the accused and it is never for the accused to prove that he is not guilty." 26 Accordingly when the totality of his Honour's remarks is considered the references to guilt and innocence as alternatives, upon which the appellant relies, were not significant. In my opinion in the context of the whole of the summing up the jury would certainly not have been confused as to their task. This ground of appeal has not been made out. Ground of Appeal F – The Crown failed to identify what act or acts of the appellant constituted the offence in Count 5 of the indictment and in the circumstances of this case, the trial thereby miscarried. 27 It was common ground that Count 4 – the assault on Constable Siva – related to the kicking incident when the appellant was being placed in the truck. The complaint made by the appellant in relation to Count 5 is that there were five different pieces of evidence from Constable Siva of "struggling" by the appellant but that the Crown did not particularise which specific instance of struggling it relied upon to establish Count 5. 28 The appellant submitted that the failure to properly identify which events were relied upon to establish Count 5 involved unfairness to him. This is because in relation to specific instances referred to by Constable Siva in his evidence, there was conflicting evidence from some of the lay witnesses. This is despite the fact that the overall effect of the evidence from the lay witnesses supported struggling by the appellant between when he was initially handcuffed and when he was finally placed in the truck. By way of illustration, although Mr Duane gave evidence as to the appellant using abusive language while he was being escorted to the scene of the offence, he did not give evidence as to a struggle taking place at that time. 29 The other aspect of unfairness related to sentencing. It was not possible to adequately assess the objective seriousness of the offence unless one knew exactly what acts were relied upon to constitute the offence. In some cases this argument might have some force. Here, however, the appeal against sentence was abandoned and the sentence in question has already been served. 30 As with Ground of Appeal E, this point was not taken at trial. This is not surprising. In submissions put on behalf of the appellant at trial (T.237.18) the following was said: "You have heard evidence from Constable Siva that he was kicked, and as the Crown has put to you that the act of – I should say "acts" because the Crown allege more than one, of kicking at the back of the police truck constitute an assault and part of those actions of the accused constitute the resist at the back of the truck." At trial therefore the appellant seems to have understood what was being alleged against him in relation to Count 5. 31 That approach by counsel for the appellant was consistent with how his Honour approached Count 5. His Honour did not refer to specific instances but referred to a continuity of resistance whilst the appellant was being dealt with by Constable Siva: "And it is also the evidence as I understand the Crown case, that the fifth charge goes to that the accused did resist Constable Siva, a constable of police acting in execution of his duty. Once again there is the evidence of the struggling that is given by Mr Turner, the evidence of the struggling given by Constable Davis and by Constable Siva, that the Crown says goes to the ingredients of that charge of resisting Constable Siva. There is no doubt that Constable Siva was acting in the execution of his duty, he was assisting in the arrest and formalising the arrest of a person who had at least stolen a handbag. There is no suggestion he was not. There is no suggestion as was put by Mr Goodridge that if you accepted the evidence of Mr Turner and Constable Siva that that struggle was not a resist. The accused's case is "look I did kick out, I didn't resist, I only kicked out when I was being put into the wagon". These are matters for you – it is a straight out question of whether you accept Constable Siva, you accept Mr Turner, you accept Constable Davis and of course you have to have regard to the evidence that Mr Duane gave in relation to the profane language. …" (SU 33-34) 32 It was not necessary to approach Count 5 on the basis that there were up to five separate instances each of which could be taken as constituting the offence of resisting a police officer. What the jury was asked to consider was a continuing course of conduct over a number of minutes, with particular emphasis on what happened at the rear of the truck. This was the understanding of counsel for the appellant at trial and that was the way in which it was put to the jury by his Honour in his summing up. 33 The various incidents to which Constable Siva referred to in his evidence were in reality particulars of the continuing offence. That seems to be the approach adopted by counsel for the appellant at trial. He does not seem to have been in any doubt as to the case which the appellant had to meet. In that context the failure to make any complaint at trial on this issue is significant. There was of course more than enough evidence to enable the jury to find Count 5 proved and the question to be decided by the jury on that issue was clearly put by his Honour. 34 This ground of appeal is not made out. 35 The order which I propose is that the appeal should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.