New South Wales Court of Criminal Appeal CITATION: Collins v R [2006] NSWCCA 162 HEARING DATE(S): 10 March 2006 JUDGMENT DATE: 22 May 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Johnson J at 86 DECISION: (i) appeal against conviction dismissed; (ii) leave granted to appeal against sentence; (iii) appeal against sentence allowed to the extent only that the sentence of imprisonment for eight years with a non-parole period of five years to commence on 16 February 2005 be set aside. The appellant re-sentenced to a period of imprisonment for eight years, commencing on 8 October 2004 and expiring on 7 October 2012, with a non-parole period of five years, expiring on 7 October 2009. CATCHWORDS: appeal against conviction - application for leave to appeal against sentence - aggravated armed robbery with wounding - conflicting accounts given by complainant - leave granted to Crown Prosecutor to cross-examine complainant - directions to jury with respect to evidence of identification - complainant and complainant's husband known to appellant - complainant's husband pleaded guilty to charge of accessory after fact of armed robbery of his wife - complainant's out of court representations at variance with trial identification evidence - directions to jury - unreliable evidence - descriptive evidence - warning not required - warning not prohibited - no error in directions to jury - directions adequate - whether verdict unreasonable - appellant's prior criminal record - offence committed whilst on conditional liberty - victim vulnerable - planned criminal activity - whether appellant knew of victim's vulnerability - pre-trial period in custody - sentence to reflect pre-trial period in custody Crimes Act 1900 s96 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s9, s12, s21A Evidence Act 1995 s38, s116, s165 M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED: MFA v The Queen [2002] HCA 53; 213 CLR 606 R v Rose [2002] NSWCCA 455; 55 NSWLR 701 PARTIES: Cassandra Collins - Appellant Crown - Respondent FILE NUMBER(S): CCA 2005/2229 COUNSEL: B Rigg - Appellant G Rowling - Respondent SOLICITORS: B Duchan - Appellant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3000 LOWER COURT JUDICIAL OFFICER: Neild DCJ LOWER COURT DATE OF DECISION: 16/02/2005 IN THE COURT OF CRIMINAL APPEAL 2005/2229 SPIGELMAN CJ SIMPSON J JOHNSON J Monday 22 May 2006 Cassandra COLLINS v REGINA Judgment 1 SPIGELMAN CJ: I agree with Simpson J. 2 SIMPSON J: On 16 February 2005, following a trial by jury, the appellant was convicted on an indictment that charged her with a single count of robbery with wounding in circumstances of aggravation. The victim of the offence was Mrs Ivon El-Sobky. (It was never in issue that the offence had been committed, the issue for jury determination was whether the appellant had been proven to be the perpetrator.) Pursuant to s96 of the Crimes Act 1900 the conviction exposed the appellant to a maximum penalty of imprisonment for 25 years. On 10 May 2005 Nield DCJ sentenced her to imprisonment for eight years, commencing on 16 February 2005, with a non-parole period of five years, expiring on 10 February 2010. 3 The appellant now appeals against her conviction and seeks leave to appeal against the sentence. 4 The case has some unusual features. Initially, only one ground of appeal was pleaded, concerning directions given to the jury with respect to evidence of identification. At the hearing leave was sought on behalf of the appellant, and granted, to add a ground that the verdict was unreasonable and unable to be supported on the evidence. the Crown case 5 What immediately follows is an account of the case presented by the Crown. It should not be taken to represent any findings or conclusions of fact. Given the twists and turns that eventuated in the prosecution of the appellant, it is convenient to set out the history in chronological sequence. Very little of the factual history is in dispute. 6 The Crown case was that, at about 7.00 or 7.30 pm on the evening of 18 January 2003, Mrs El-Sobky and her three children travelled by taxi to the Uniting Church in Liverpool. Mrs El-Sobky was carrying a handbag, containing a number of items, including a camera, a bible, personal papers, taxi vouchers and a sum of money in cash. Having briefly entered the church, Mrs El-Sobky returned outside in order to make a telephone call to her husband, Hesham El-Sobky. They arranged that he would drive to the church, for the purpose of delivering another sum of money to her. He did so, travelling in a gold Nissan. He gave her $500. Mrs El-Sobky placed this in her handbag. Mrs El-Sobky remained in the garden of the church, speaking on her mobile telephone. She felt something that she shortly after described as a needle or knife in her back. She looked to her left and saw a woman holding a knife. The woman was attempting to take Mrs El-Sobky's handbag, saying "leave the handbag." With the knife she slashed Mrs El-Sobky's hand and arm. She ran off with the handbag. 7 It was the Crown case that the woman was the appellant. 8 What happened after the incident in the church was observed, or partly observed, by two men, Uday Chand and Reg Deo, who, at the time, were nearby in a car. They did not witness the incident itself. They saw a woman run across the road from the church carrying a black handbag in her left hand. She was wearing black (Mr Chand) or blue or black (Mr Deo) pants and a beige t-shirt. Both described her as being of middle-eastern appearance. She entered the front passenger seat of a brown Nissan parked on the incorrect side of the road. The driver's seat of the Nissan was occupied by a man, also of middle-eastern appearance. When the woman entered the passenger seat of the vehicle, he drove off quickly, so quickly as almost to collide with a taxi coming in the opposite direction. Mr Chand noted the registration number of the Nissan as AIM 72E. This was a vehicle registered in the name of Mark David, a name by which Hesham El-Sobky was also known. 9 Police were called to the scene. Constable Bell (who gave evidence under her married name of Honey) spoke to Mrs El-Sobky. Mrs El-Sobky nominated "Cassandra Collins" as her attacker. Constable Bell asked how she knew Cassandra Collins, to which Mrs El-Sobky replied: "I have an AVO against her. She has been trying to get my husband. She wants him to marry her." 10 (There was in fact some history involving the appellant and Mrs El-Sobky. The appellant had been involved in an extra-marital relationship with Hesham El-Sobky. She had given birth to a child, of whom she claimed (wrongly, as was later shown) he was the father. The Department of Community Services had become involved and had contacted Mr El-Sobky. Mrs El-Sobky had become aware of the relationship. At some point Hesham El-Sobky, either alone or jointly with Mrs El-Sobky, had sought and obtained against the appellant an Apprehended Violence Order.) 11 Mrs El-Sobky described Cassandra Collins as: "She is Fijian, islander looking, about in her twenties, brown hair, large build, 170 cm tall, wearing dark navy black pants, t-shirt top in beige or white." 12 Mrs El-Sobky was taken to Liverpool Hospital, where she was again spoken to by Constable Bell. There she gave a more detailed account of the incident. She again nominated Cassandra Collins as her assailant. She itemised the contents of her stolen handbag, including the bible, letters, gold jewellery, money, taxi vouchers and a camera. 13 Later that evening, at about 10.00 pm, Constable Bell was on duty at the Liverpool Police Station. Mr Chand and Mr Deo were present for the purpose of making statements about what they had observed. At about 10.20 pm Hesham El-Sobky and Mrs El-Sobky, with their three children, also arrived at the police station. Both Mr Chand and Mr Deo spontaneously identified Mr El-Sobky as the driver of the Nissan in which the woman they had observed had driven off. Constable Bell asked Mr El-Sobky his name. He identified himself as Mark David. 14 Hesham El-Sobky's Nissan was then searched by police. The search produced a lady's black wallet, containing personal papers and a small black bible, and a camera. These items were found under the lining of the boot near the spare tyre. Hesham El-Sobky was then arrested and charged. He later pleaded guilty to an accessorial offence. 15 On 23 January 2003 Mrs El-Sobky again attended at the Liverpool Police Station. On this occasion she took with her some gold jewellery which she said was the jewellery she had previously reported as having been stolen, but which she had found in another handbag at home. With the assistance of an Arabic interpreter she made a statement. She repeated her account of the incident at the church, and again nominated Cassandra Collins as the perpetrator of the assault. She said that she had met Cassandra Collins a few months earlier at a club, with Hesham El-Sobky, and repeated that Cassandra Collins wanted to marry Hesham El-Sobky. She also said that Cassandra Collins had been present at court when she and Hesham El Sobky sought an Apprehended Violence Order. She described Cassandra Collins as 20 years old, and gave her date of birth as 23 March 1983. She then described her as "from a Fijian background" and described the clothing she was wearing on 18 January. 16 The following day, 24 January, Mrs El-Sobky telephoned 000. She told the operator that Cassandra Collins, who she said was "the lady ... she take my bag and cut my hand by knife" was at a McDonalds restaurant in Liverpool. She asked police to go to the restaurant and arrest her. 17 Mrs El-Sobky telephoned police again on the same day, complaining that the appellant had not been arrested, but had evaded police when they called at the restaurant. She gave police an address that she said was the appellant's residence. 18 On 29 January 2003 the appellant was interviewed by police and the interview electronically recorded. Four things of note are contained in the interview: (i) she gave her date of birth as 22 March 1983; (ii) in answer to a question whether she knew Mrs El-Sobky she said that she did, that she had been introduced to her by Mrs El-Sobky's husband, who she knew as Mark David; that she had known Mrs El-Sobky for about a year, and that Mrs El-Sobky had been telephoning her and harassing her; (iii) she said that she had not seen or spoken to Mrs El-Sobky since the Apprehended Violence Order was taken out; (iv) she said that on 18 January 2003 she had been in Port Macquarie with her father; that her father had driven from his home in Kendall near Port Macquarie on 14 January to pick her up from her home in Liverpool and had driven her to his home in Kendall on 16 January; and that she had returned to Sydney on 20 January by train. 19 Apart from that, the appellant denied having been involved in the assault on Mrs El-Sobky. 20 On 3 February 2003 the appellant telephoned Mrs El-Sobky at her home. Shortly after that, on the same day, she visited Mrs El-Sobky at her home. Hesham El-Sobky was also present. There was a conversation about the Apprehended Violence Order. Mrs El-Sobky telephoned police who attended immediately. Mrs El-Sobky agreed to "cancel" the Apprehended Violence Order. She wrote a note, in the following terms: "To whom it may concern, My name is Ivon El-Sobky. I live at 10 Humphreys Avenue, Casula 2170. I am writing this letter in regards to charges I made on a lady by the name of Cassandra Collins. I would like to cancel all charges. Sorry for the inconvenience. Please forgive me. Thank you very much. Yours sincerely." She signed the note and dated it 13 February 2003, the day she sent it to police. 21 On 5 February 2003 Mr Chand took part in a photographic identification procedure. He was shown a series of photographs of women, including the appellant. He failed from the photographs to identify the appellant as the woman he had seen on 18 January. On 25 February Mr Deo undertook a similar exercise. He identified two of the photographs as being similar to the woman he had seen on 18 January. Neither of these was, in fact, a photograph of the appellant. 22 On 10 March Mrs El-Sobky wrote a second letter. The letter read: "To whom it may concern, This is to certify that Cassandra Collins neither assaulted me nor abused me on the 18th of January 2003. It is a misunderstanding on my behalf when I did a police report against her, it was a mistake. I thought she was the one who hit me because I know she had an affair with my husband. But when I saw her in the house on the 3rd of the 2nd 2003 I was certain that neither that face nor that profile is the one that hit me before. Police took her from the house because she breached the AVO. When I complained against her the police didn't show me a photo of her and I strongly believe that keeping her locked up is a mistake. Any further inquiries regarding a statement from anyone, please do not hesitate to contact me at the abovementioned address or telephone. Yours sincerely Ivon El-Sobky" 23 On 9 April 2003 leading Senior Constable Carl Blick, who was then attached to the Laurieton Police Station, spoke to the appellant's father, Terry Collins, at his home in Kendall. Mr Collins told Senior Constable Blick that the appellant was not at his home between 18 and 20 January 2003, and that he had last seen her in December 2002 at Cabramatta in Sydney. She had not been to his home for the past seven or eight months. Mr Collins declined to give a formal statement, saying: "No I don't want to give a statement because I am her father. There are family considerations." 24 On 25 June 2003 Mrs El-Sobky met with Ms Fiona Kay, a solicitor from the Office of the Director of Public Prosecutions ("ODPP"), and Detective Fiona Frame, the officer in charge of the investigation. An Arabic interpreter was also present. During the course of that meeting Hesham El-Sobky telephoned his wife more than once, and she telephoned him. In one of these conversations, Mrs El-Sobky told her husband that she was still being questioned. The following conversation ensued: Hesham El-Sobky: Did you tell them what I told you to say? Mrs El-Sobky: Yes, but they said to me you might go to gaol with your husband. Hesham El-Sobky: Don't worry, just tell them what I told you, the court will decide, not them. 25 Ms Kay questioned Mrs El-Sobky about the letters of 13 February and 10 March. Mrs El-Sobky was reluctant to disclose to Ms Kay who had typed the second letter; Ms Kay expressed some concern about the bona fides of the document and told Mrs El-Sobky that the ODPP was in possession of other evidence linking Hesham El-Sobky to the offence. Mrs El-Sobky appeared shocked and asked: "What evidence?" Ms Kay was not prepared to discuss the nature of the evidence with her. Mrs El-Sobky said: "He not guilty." 26 On the first day of the trial, 9 February 2005, Constable Bell was waiting outside the court. Mrs El-Sobky engaged her in conversation (on the subject of Constable Bell's ill health). Constable Bell then asked Mrs El-Sobky if she still had an Apprehended Violence Order against the appellant. Mrs El-Sobky repied: "No since she stabbed [me] my husband and I have no problems with her any more." 27 Hesham El-Sobky was charged as an accessory after the fact of armed robbery. On 2 February he pleaded guilty to the charge. the trial 28 Mrs El-Sobky was the first witness to be called in the trial. It soon became apparent that the evidence she would give would, in one crucial respect, dramatically depart from the accounts she had given soon after the attack upon her. Of the offence itself, she gave an account consistent with that she had previously given. She said that she had mistakenly believed that the gold jewellery was in the handbag she was carrying, but that she had forgotten that she had left it in another handbag at home. The departure from her earlier account came when she was asked, in her evidence in chief, if she knew the woman who had taken her bag. She said that she did not. She said that she had never seen that woman before. 29 As a consequence the Crown Prosecutor (who had obviously anticipated this development) sought, under s38 of the Evidence Act 1995, leave to question her as though cross-examining. After a voir dire, leave was granted. There is no challenge to that ruling. 30 The Crown Prosecutor then proceeded to cross-examine Mrs El-Sobky in the presence of the jury. 31 Mrs El-Sobky maintained that she did not know who had attacked her, but said that she knew that it was a female because of her hair, her body shape and her clothing. She did "not that much" see her face, and only looked at her face for a few seconds. She said that she suspected that it was Cassandra Collins because of her relationship with Hesham El-Sobky, and the birth of the child, and she thought Cassandra Collins probably intended to kill her so that she could live with Hesham El-Sobky. She said that she looked at her assailant's face for one or two seconds, but was not concentrating on her face. She said that, at the time she first nominated Cassandra Collins (on 18 January) as her attacker, and again on 23 January, she had neither seen nor met Cassandra Collins. 32 She denied that she had told police that she had met Cassandra Collins at a club, saying that she did not go to clubs. She said that what she meant by the statement she made to police was that the appellant had met her husband at a club. 33 She explained that part of her statement of 23 January in which she said that she had known Cassandra Collins for a few months as meaning that she had known of Cassandra Collins, and of Cassandra Collins' relationship with Hesham El-Sobky, for that time. She explained her description of Cassandra Collins as "from a Fijian background" by saying that she had heard from Hesham El-Sobky that Cassandra Collins was of Fijian extraction, or had Fijian parentage. She said she had tailored her description of her attacker to fit what she knew of Cassandra Collins. 34 Mrs El-Sobky was asked about the events of 24 January, when she had claimed to have seen her attacker (whom she again identified as Cassandra Collins) in a McDonalds restaurant. She said: "I saw someone sitting at McDonalds and I thought that could be the woman who had attacked me." She said that she did not then know what Cassandra Collins looked like. When asked why she had told police that she had seen Cassandra Collins, and named her as the woman who had taken her bag, she said: "I was just under the impression that that woman was the same woman who took my bag and cut my hand and that was Cassandra who was sitting at McDonalds." A little later, when asked a question in similar terms, she said: "Yeah well that's what I wanted because as I said, I was afraid of the person who robbed me and I thought that she was everywhere, wherever I went, I was under the impression that that lady was around." 35 Notwithstanding that she acknowledged having said, in her statement of 23 January, that she had seen Cassandra Collins at court during the Apprehended Violence Order proceedings, in cross-examination by the Crown she denied having been present at those proceedings. 36 She said the first time she saw Cassandra Collins was when she came to her home on 3 February 2003. It was only then that she realised that the woman who had robbed her was not Cassandra Collins. 37 She said the note of 10 March was typed by a fellow parishioner of her church. She was asked about the June meeting with Ms Kay and Senior Constable Frame. She maintained that this meeting was arranged because a car registered in her name had been involved in an accident. She said they did not discuss the attack upon her or the robbery. She said that the conversation she had had with her husband related to that accident. She was asked about the conversation Constable Bell claimed to have had with her on the first day of the trial. She denied having said: "No, since she stabbed me, my husband and I have no problems with her any more." Her account of the conversation was: "This did not take place at all. What happened is that she asked me 'Is everything alright between you and your husband?' I said, 'Yes'. And then she said 'Is there an AVO against Cassandra now?' I said, 'No there is no AVO now because my husband went to court and cancelled it.' I didn't tell her anything about that Cassandra stabbed me or anything like that. Besides if it was really Cassandra who stabbed me, I wouldn't have cancelled the AVO." 38 In cross-examination on behalf of the appellant the fact that her husband had been charged as an accessory, and had pleaded guilty, was elicited. 39 Mr Chand also gave evidence in the trial. His evidence was unremarkable, and in accordance with what he had previously told police. Mr Deo did not give evidence. His statement was read to the jury. It was generally accepted that the woman they had seen, and described, was the woman who attacked Mrs El-Sobky. 40 The photographs that had been shown to Mr Chand and Mr Deo were in evidence. These included a photograph of the appellant. The photograph showed the appellant as having a dark or olive complexion, and dark hair and eyes. 41 Mr Amjad Oweis, an officer of the State Rail Authority, also gave evidence. Mr Oweis conducted a search for any record of travel by the appellant from Kendall to Sydney between 19 and 21 January. Using a number of different searches, he checked every train travelling from north to south towards Sydney. He found no record of the appellant having travelled. Only one person by the name of Collins had travelled during that time. That was not the appellant. 42 The appellant's father, Terrence Collins, was also called. He was not a satisfactory witness. Contrary to what (on the Crown case) he had told Senior Constable Blick, he said that he had seen the appellant both in Sydney and in Kendall during December 2002 and January 2003. He could not be precise about the dates. He denied having told Constable Blick that the appellant had not been to his home for the past seven or eight months. 43 Accordingly, leave was granted under s38 of the Evidence Act to cross-examine Mr Collins. This cross-examination did not make any inroads on his evidence in chief. Leading Senior Constable Blick was then called and gave evidence as set out above: that is, that Mr Collins had told him that the appellant was not at his home between 18 and 23 January 2003, that the last time he had seen her was in December 2002 at Cabramatta, and that the appellant had not been to his home for the past seven or eight months. He said that Mr Collins had declined to provide a written statement, saying that was because he was her father and there were family considerations. the grounds of the appeal against conviction ground 2: unreasonable verdict 44 I have outlined above the two grounds advanced on behalf of the appellant. Because, if it were to succeed, it would result in a verdict of acquittal, it is convenient to deal first with the second ground, that the verdict was unreasonable and could not be supported by the evidence. It can be dealt with succinctly. The principles on which this Court will set aside a verdict on that ground are well known and do not need restatement. They are to be found expressed in M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; and many other cases. On behalf of the appellant it was put: "Conviction required acceptance beyond reasonable doubt of the evidence of Mrs El-Sobky's nomination on 18 and 23 January 2003 of the appellant as her attacker, such evidence being adduced for a hearsay purpose. The jury had no advantage over this Court in assessing such evidence, as it did not see or hear Mrs El-Sobky make such nominations." No point has been taken that the evidence could not properly be used, under the hearsay provisions of the Evidence Act , as evidence of the truth of what Mrs El-Sobky asserted on the occasions in question. It was plainly admissible for that purpose. The focus of the ground of appeal lay in the inherent and obvious unreliability of Mrs El-Sobky as a witness. There is no doubt that her credibility was minimal. But it was open to the jury to conclude that her lack of credibility affected the evidence she gave in the trial as distinct from what she had said to Senior Constable Bell. 45 I do accept that, before the jury was entitled to convict, it was necessary that it accept beyond reasonable doubt that the nomination of the appellant as her attacker by Mrs El-Sobky on those dates was both truthful and correct. What I do not accept is the appellant's second proposition, put by counsel, that the jury had no advantage over this Court in assessing that evidence. The jury had the advantage of observing Mrs El-Sobky give her evidence denying knowing or having met the appellant, and her tortured explanations for her earlier statements to police and other aspects of the Crown case. It was not necessary, for the jury to reach a view about which of Mrs El-Sobky's two accounts was truthful, that it see her give each of them. It was sufficient that the jury could see, as it could, Mrs El-Sobky retracting her earlier version. In this respect it was well placed to make an assessment of Mrs El-Sobky's credibility, and certainly better placed than this Court. 46 Counsel then set out nine features of Mrs El-Sobky's evidence which, she argued, showed that the crucial evidence (of identification and nomination) lacked credibility, displayed inadequacies, and has been demonstrated to lack probative value. 47 It may be accepted that the evidence directly given by Mrs El-Sobky did bear those characteristics. But the evidence that she gave which bore those characteristics was the evidence of denial and retraction. It was not the original statements made by Mrs El-Sobky to Constable Bell. I have no doubt that this was how the jury perceived it. There were, indeed, some (sometimes subtle) pointers in the evidence to support what she had earlier said. For example, she gave the appellant's date of birth as 23 March 1983; in her recorded interview (which was in evidence) the appellant gave her date of birth as 22 March 1983, suggesting that Mrs El-Sobky was indeed more familiar with the appellant than she claimed to be. It was plain that the retraction came after Hesham El-Sobky had been charged as an accessory. The appellant in her interview confirmed that the two women knew each other. 48 Even a reading of the words on the transcript gives a clear impression that it was Mrs El-Sobky's later version, not the earlier, that was riddled with doubt and inadequacy. The jury were entitled to contrast the two accounts and determine which of the two was correct. They were entitled, as they clearly did, to opt for the earlier, and immediate, account as representing the true state of affairs. They were entitled, as they clearly did, to reach this view beyond reasonable doubt. 49 The appellant's acknowledgement, in the second of her interviews, that she knew Mrs El-Sobky was another circumstance relevant (and adverse to the appellant) to the jury's evaluation of Mrs El-Sobky's two versions. 50 The appellant could not, in this respect, have been helped by the evidence concerning what her father told Senior Constable Blick, or his (her father's) obvious lack of cooperation in the trial. This evidence cast serious doubt upon her answers in her interview. 51 There is no basis for concluding that the conviction was unreasonable or was not supported by the evidence. In my opinion the second ground of appeal should be rejected. ground one: directions on identification 52 This ground is framed as follows: "His Honour's directions regarding identification evidence and the victim's out of court representations were inadequate in part, and included evidence which should not have been the subject of a warning, thereby giving rise to a miscarriage of justice." 53 Some provisions of the Evidence Act 1995 are relevant to the consideration of this ground. They can conveniently be set out here. They are: (i) the definition of "identification evidence" contained in the Dictionary, as follows: "(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion."; (ii) S116, which provides as follows: "116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury."; (iii) S165, which is relevantly in the following terms: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) ..., (b) identification evidence, ... (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) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury." 54 The directions given by Neild DCJ were: "As to the evidence of identification, and this is the evidence of the complainant that Cassandra Collins was her attacker, and the description given by Mrs El-Sobky of her attacker, and the descriptions given by Mr Chand and Mr Deo of the woman who they saw getting into Mrs El-Sobky's husband's car , I give you this warning. You must scrutinise the evidence of identification with special care and caution before you decide to accept it. I give you this warning because in past trials witnesses have made mistakes in the identification of persons and objects, even though those witnesses have been completely honest people. Furthermore, in past trials, more than one witness in the trial have made mistakes about the identification of person and objects. ... So, members of the trial (sic), in trials where the Crown relies upon witnesses' identification of persons or objects the presiding judge must, and I emphasise 'must', give a warning to the jury to scrutinise the evidence of identification with special care and caution. That is one reason for my giving you this warning. You must not think that I have given you this warning because of a view that I have formed about the evidence of identification. The other reason for my giving you this warning is obvious, and it is this. Mrs El-Sobky has withdrawn her identification of the accused as her attacker. This means that you have the complainant's statements, that is Mrs El-Sobky's statements, identifying the accused as her attacker given to police on 18 January 2003, there were two such statements on that day, which were confirmed to police on 23 January 2003 and repeated to police in the 000 call on 24 January 2003, and Mrs El-Sobky's withdrawal of that identification by her letter of 10 March 2003, and perhaps by the letter of 13 February 2003. The conflict in the statements of Mrs El-Sobky may mean that Mrs El-Sobky's evidence is unreliable. So, members of the jury, for these two reasons, (1) that the evidence of identification may be mistaken and (2) that Mrs El-Sobky's identification may be unreliable, I tell you that you must scrutinise the evidence of identification and particularly that of Mrs El-Sobky with special care and caution." (emphasis added) 55 His Honour went on to tell the jury that, having scrutinised the evidence appropriately, they were entitled to act upon it. He then dealt in more detail with a number of specific questions which he formulated as follows: "... did the person making the identification know the person or recognise the object? "... what was happening when the identification was made?" "... how long did the person making the identification have to observe what was happening?" "... what was the distance between the event, what happened, and the person making the identification at the time when the event was observed?" "... what was the light at the place when the event was observed by the person making the identification?" "... was there anything about the person who or object which was identified which was distinctive?" His Honour gave detailed directions in relation to each of these questions and returned to the description originally given of her attacker by Mrs El-Sobky. 56 Counsel for the appellant drew a distinction between two categories of evidence, which may broadly be characterised as "identification evidence" (although not necessarily within the meaning of the Evidence Act definition). The first category is what she termed the general descriptive evidence – that is, the description of her attacker given by Mrs El-Sobky, and the descriptions of the woman they had observed given by Mr Chand and Mr Deo. The second category was the identification, by Mrs El-Sobky only, of Cassandra Collins as the woman who had perpetrated the robbery. This was identification evidence, properly so called, within the meaning of the definition. 57 As will be seen from the italicised passage in the summing-up, the trial judge treated the two kinds of evidence in the same way, as requiring the same kind of caution on the part of the jury. In a nutshell, the ground was that only Mrs El-Sobky's identification should have been the subject of the cautionary directions. The descriptive evidence, which counsel sought to turn to the appellant's advantage, ought not, she argued, to have been the subject of such directions. 58 On behalf of the appellant the submission was (correctly in my opinion) made that the descriptive evidence alone would have been insufficient to sustain the conviction. The conviction depends upon the positive identification by Mrs El-Sobky. 59 Counsel contended that to treat the two kinds of evidence in the same way was erroneous. This was because of the explanation given by Mrs El-Sobky for having wrongly (as she then claimed) nominated the appellant. Her explanation was that, knowing of the appellant's association with her husband, she had made an assumption that she later learned to be wrong. To support the submission counsel pointed to some common elements between the appearance of the appellant and the descriptions of the woman. These were to do with her body size and build and colouring. She argued that the descriptive evidence assisted the defence because it made it more probable that Mrs El-Sobky's explanation was correct – that because of the consistency between the descriptions of the woman and the appearance of the appellant, the jury might more readily accept that Mrs El-Sobky had wrongly jumped to a conclusion about the identity of her attacker. Succinctly, counsel submitted: "With the knowledge that she [Mrs El-Sobky] had of such a woman, it would have been unlikely she would presume the assailant to be Cassandra Collins had she been blonde, pale and petite." 60 There is nothing in the relevant provisions of the Evidence Act that requires a warning to be given in relation to the descriptive evidence. That is for the simple reason that that evidence does not come within the Dictionary definitions of identification evidence. Ss116 and 165 are directed to identification evidence within that definition. S116 did call for a warning in respect of Mrs El-Sobky's identification. No complaint is made about the terms in which that was given. Counsel complained that to include the descriptive evidence in the warning had two different impacts upon the appellant's defence. The first she specified as the likelihood that the direction weakened the impact of the warning that was required in relation to the identification evidence properly so called, and genuinely in dispute; the second as the potential of the direction to undermine the exculpatory capacity of the evidence in question (the descriptive evidence). In making this latter submission, counsel relied upon the descriptions of the woman by both Mr Chand and Mr Deo as of middle-eastern (not islander or Fijian) appearance, and the failure of both of these men to identify the appellant's photograph from the array presented to them. These circumstances favoured the appellant, by suggesting that she was not the woman they had seen, or, at least, that the jury ought to experience a reasonable doubt about whether she was. But the direction given to the jury invited caution in the approach to the descriptive evidence. 61 It is correct, as counsel argued, that neither s116 nor s165 obliged the trial judge to give a direction to the jury to exercise caution in relation to the descriptive evidence. But neither is there anything that prevents a trial judge giving such a direction where it is appropriate to do so: see R v Rose [2002] NSWCCA 455; 55 NSWLR 701, per Wood CJ at CL and Howie J. It was perfectly appropriate, in this case, for the judge to draw to the jury's attention any potential weaknesses in the descriptive evidence. Recognition of such weaknesses might explain to the jury the description of the woman as of middle-eastern rather than islander or Fijian appearance, and the failure of Mr Chand and Mr Deo to identify the appellant from the photographs. It has often been said that the requirements concerning directions to a jury are designed to ensure a fair trial to all parties. The task of judges in directing juries is to assist them to reach the correct verdict. Pointing out potential weaknesses in evidence that may appear to favour the defence, provided it is done with restraint, is a proper approach to that task. 62 While I accept that the direction had some potential to undermine the exculpatory capacity of the descriptive evidence, I do not see that it was in any way unfair to do so. I am unable to accept that including in the direction a reference to the descriptive evidence had any likelihood of weakening the impact of the warning given in respect of Mrs El-Sobky's identification of the appellant. 63 I would reject that aspect of this ground that complains that, in respect of the descriptive evidence, warnings which should not have been given were given. 64 There is another aspect to this ground of appeal. It was submitted that the identification evidence direction required reference to a number of specified circumstances. These were said to be: "- the direct and circumstantial evidence as to the general description of the woman who attacked Mrs El-Sobky; - that the descriptive evidence was not of itself sufficient to convict the appellant; - the failure of both Mr Chand and Mr Deo to recognise the appellant when shown her photograph amongst a number of others; - that the evidence of what Mrs El-Sobky had initially said to police was, within s165, evidence which may have been unreliable both because it was identification evidence and hearsay evidence; - inconsistencies in Mrs El-Sobky's different versions of events." 65 It may be that the directions given did not specifically incorporate all of these matters. However, I am satisfied that the directions given were adequate for the purposes of the case. All that was required was a direction that drew to the jury's attention any weakness in Mrs El-Sobky's initial identification of the appellant. This was done. The other evidence in the case, as I have already pointed out, was overwhelmingly in support of that initial recognition and identification. It was overwhelmingly in support of the appellant's guilt. I would also reject this aspect of this ground of appeal. It follows that I would reject ground 1. I would, accordingly, dismiss the appeal against conviction. the application for leave to appeal against sentence 66 A sentencing hearing took place on 1 April 2005. By that time Hesham El-Sobky had entered a plea of guilty to the charge of having been an accessory after the fact of the armed robbery of his wife. The sentencing proceedings in relation to the appellant and Hesham El-Sobky took place together. Mrs El-Sobky gave evidence. Her evidence was primarily related to her husband's proceedings. In particular, she gave evidence about her state of health. She said that she had arrived with her husband from Egypt in Australia in January 1987. Shortly after her arrival she had been involved in a motor vehicle accident in which she suffered fractures to two spinal discs and both ankles. As a result she was left in a state of disability. Subsequently, in December 2004, she suffered another back injury. This evidence was directed to demonstrating her dependence upon her husband. However, as will become apparent, it is relevant to one of the grounds upon which the application for leave to appeal against sentence was advanced. 67 The appellant was arrested on 4 February 2003, and was refused bail. On 11 June 2003 she was released on conditional bail. In May 2004 she was again arrested on unrelated matters and spent about a month in custody specifically in relation to those matters. She was again released on bail on 9 June 2004 and remained at liberty until 16 February, the date of the jury's verdict. During the course of sentencing submissions, counsel who appeared for the appellant advised his Honour that the appellant had spent about four months in custody before being granted bail. At that time, it appears, precise information as to the period of time she had spent in custody was not available. His Honour appears to have indicated that he proposed to take the pre-sentence custody into account, because he said: "Well, I might be able to do it by reference to the papers. There's bound to be the bail undertaking in the court papers, so I'll know the date of charging from the charge sheet, and the date of release on bail. And that will come also from the – and I don't have it – custodial record." 68 The appellant did not give evidence in the sentencing proceedings. Nield DCJ had available to him a pre-sentence report, a report from a "Services and Programs Officer" of the Department of Corrective Services, and a report from a psychologist. All were dated March or April 2005. 69 From these reports Nield DCJ was given a picture of the appellant's personal circumstances. She was, as has already been mentioned, born on 22 March 1983. She was therefore about two and a half months short of her twentieth birthday at the time of the offence. She had, considering her age, a significant criminal history which included many offences of dishonesty, two of common assault, and another of assault occasioning actual bodily harm. In January 2002, in relation to one count of common assault and the offence of assault occasioning actual bodily harm, she was sentenced to imprisonment for two years, with the sentence suspended on her entering into a two-year bond pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). In February 2002, in respect of an offence of larceny, she was subjected to a bond under s9 of the same Act, for twelve months. Accordingly, she was subject to both bonds at the time of the offence against Mrs El-Sobky. She was born of a Fijian mother and Australian father. Her parents separated while she was a small child, and her father subsequently remarried. For many years she had no contact with her mother. She lived with her father and stepmother for some time and was there well cared for. Notwithstanding that, and devoted care given to her by her stepmother, she began using drugs, beginning with cannabis and progressing to heroin, at about the age of 14. She became addicted to heroin. She gave up using the drug for about two years from 1999, but relapsed after the breakdown of a relationship. She worked as a prostitute for a time. She has attempted methadone rehabilitation but has not met with great success. She met Hesham El-Sobky (under his alias of Mark David) in 2001 at the time she was working as a prostitute and was drug dependent. She made a suicide attempt in late 2002. 70 The psychological report disclosed an unusual and concerning personality profile, combining a high level of dependency with symptoms consistent with paranoid personality disorder. This combination, the psychologist said, created "an uncomfortable construct and dynamic". The psychologist wrote: "Someone who has strong elements of dependent and paranoid behaviours would be in a constant state of conflict and fear about interpersonal relationships – wanting to trust and depend on others yet at the same time fearing they could be harmed or damaged in relationships." 71 In her discussion with the psychologist, the appellant maintained her innocence of the charge. the remarks on sentence 72 The appellant and Hesham El-Sobky were sentenced together. 73 Nield DCJ outlined the chronology relevant to the commission of the offence and also the chronology relevant to the charge against the appellant. This demonstrated that considerable delay had occurred before the trial was brought on. The appellant was arrested and charged on 4 February 2003, but was not brought to trial until 9 February 2005. The reason for the delay does not clearly emerge. Hesham El-Sobky entered a plea of guilty on 2 February 2005. Until then it was anticipated that both would enter pleas of not guilty. On 31 May 2004 the appellant applied for a separate trial, which was refused on 2 June. The joint trial was then fixed for 6 September 2004. However, three days before that, the trial date was vacated because of Hesham El-Sobky's ill-health. The trial was re-fixed to commence on 7 February 2005. 74 Having recounted those chronologies, Nield DCJ observed that the offence was very serious, and was planned (as shown by the appellant's possession of the knife). He did, however, also observe that the planning was "without sophistication". He noted that at the time of the offence the appellant was on two forms of conditional liberty, and that the offence resulted in Mrs El-Sobky being injured and her property being stolen. His Honour then said this: "It was committed upon a vulnerable victim, as, to the knowledge of Ms Collins, Mrs El-Sobky was disabled by her spinal injury and used her crutch to aid her walking." This observation gives rise to the principal basis of the application. 75 His Honour then referred to the subjective materials that had been placed before him and then turned his attention to s21A of the Sentencing Procedure Act. He took into account, as aggravating factors: (i) that the offence was committed while the offender was on conditional liberty (s21A(2)(j)); (ii) that the victim was vulnerable (s21A(2)(l)); and (iii) that the event was part of a planned or organised criminal activity (s21A(2)(n)). 76 He said that he took into account, as mitigating factors, those identified in s21A(3)(a) and (k). S21A(3)(a) requires to be taken into account as a mitigating factor the fact that the injury, emotional harm, loss or damage caused by the offence was not substantial. S21A(3)(k) relates to a plea of guilty. It is obvious that the reference to s21A(3)(k) is a mistake. It is not possible to determine if his Honour intended to take into account some other mitigating factor, although it is not easy to identify any that applies. He specifically referred to the need for the sentence to reflect principles of specific and general deterrence. His Honour then imposed the sentence I have already set out. He made no mention of the period of pre-trial custody. the grounds of the application 77 On behalf of the appellant it was contended that two specific errors could be identified in the sentencing process. 78 The first concerned his Honour's decision to take into account, as an aggravating factor within s21A(2)(l), that the offence was committed upon a vulnerable victim. This was, his Honour said, because the appellant knew that Mrs El-Sobky was disabled by spinal injury and used a crutch to aid her in walking. 79 It was argued that no evidence to this effect was before the court. The evidence given by Mrs El-Sobky in the sentencing proceedings was given in the proceedings relevant to her husband. During the course of that, in another context, his Honour made it clear that, although the proceedings were heard jointly, he regarded the evidence in each as entirely separate from the other. 80 There was, however, evidence in the trial from Mrs El-Sobky that her husband was her carer. And there was evidence from Detective Sergeant Harding, who saw Mrs El-Sobky at the Liverpool Police Station on the evening of 18 January, that she needed crutches to walk. There was also evidence that the contents of her handbag included taxi vouchers. These were in fact in evidence, although they have not been produced to this Court. 81 It may be that the observation, as expressed by his Honour, that the appellant knew that Mrs El-Sobky was disabled by spinal injury, was something of an overstatement. But it must have been obvious to the appellant that Mrs El-Sobky was disabled to the extent that she used a crutch to aid her walking. I do not think it was incorrect to say that the offence was committed upon a vulnerable victim; nor do I think it was incorrect to say that this was known to the appellant. The most that could be said to be incorrect in the observation is that the appellant knew that the cause of the disability was spinal injury. Even that, in the circumstances, is unlikely – his Honour was entitled also to take into account the relationship between Hesham El-Sobky and the appellant, and draw such inferences as seemed appropriate. 82 In my opinion this error has not been established. 83 The second ground on which the application is advanced concerns the appellant's pre-trial custody. His Honour specified that the sentence was to commence on 16 February 2005, the date the appellant was taken into custody following conviction. There is no reference in the remarks on sentence to the period of pre-trial custody. In the ordinary course of events a sentence will either be reduced by a term equivalent to the amount of pre-trial custody, or made retrospective to incorporate that period of time. Neither was here done. I accept that this error has been demonstrated. Accordingly, the commencement date of the sentence should be adjusted so as to take account of that period. 84 I would otherwise grant leave to appeal against the sentence but dismiss the appeal. 85 The orders I propose are: (i) appeal against conviction dismissed; (ii) leave granted to appeal against sentence; (iii) appeal against sentence allowed to the extent only that the sentence of imprisonment for eight years with a non-parole period of five years to commence on 16 February 2005 be set aside. The appellant be re-sentenced to a period of imprisonment for eight years, commencing on 8 October 2004 and expiring on 7 October 2012, with a non-parole period of five years, expiring on 7 October 2009. 86 JOHNSON J: I agree with Simpson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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