New South Wales Court of Criminal Appeal CITATION: Scott Raymond Brown v Regina [2006] NSWCCA 395 HEARING DATE(S): 7 September 2006 JUDGMENT DATE: 12 December 2006 JUDGMENT OF: Mason P at 1; Sully J at 2; Latham J at 68 DECISION: Appeal against convictions dismissed; Leave granted to appeal against sentences passed at first instance; Appeal against sentences dismissed LEGISLATION CITED: Criminal Appeal Act 1912 M v The Queen (1994) 181 CLR 487 Hui Chi-ming v The Queen [1992] 1 AC 34 CASES CITED: R v Britten and Eger (1988) 36 A Crim R 48 R v Vandine [1970] 1 NSWR 252 R v Spathis and Patsalis (2001) NSWCCA 476 R v Mills, unreported, NSWCCA 3/4/95 PARTIES: Scott Raymond Brown Regina FILE NUMBER(S): CCA 2005/2034 COUNSEL: W. G. Dawe QC - Crown In person - Appellant SOLICITORS: S. Kavanagh - Crown In person - Appellant LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2004/40 LOWER COURT JUDICIAL OFFICER: Newman J LOWER COURT DATE OF DECISION: 18 February 2005 IN THE COURT OF CRIMINAL APPEAL 2005/2034 MASON P SULLY J LATHAM J 12 December 2006 Scott Raymond BROWN v REGINA Judgment 1 MASON P: I agree with Sully J. 2 SULLY J: Mr. Brown (the appellant) appealed against a number of his convictions and sought leave to appeal against the resulting sentences. 3 He had previously been represented by senior counsel in the conviction appeal, but legal aid was withdrawn and he became self-represented. Proceedings in this Court had previously been listed for hearing and there were a number of occasions when the matter was stood over at call-over. At the hearing he sought a further adjournment on a particular basis which was opposed. The appellant then indicated that he was prepared to represent himself. Several documents were handed up and the grounds of appeal were clarified during oral address. 4 The Court permitted the appellant to elaborate upon the non-informative notice of appeal against conviction previously filed. It was clarified that the grounds of appeal were essentially three in number, namely: 1. The verdict was unreasonable having regard to the evidence; 2. Manslaughter ought to have been left to the jury and/or there were inadequate directions on joint enterprise; and 3. The joint trial with the co-offender Hudd had occasioned a miscarriage of justice; 5 I shall outline the issues as to sentence when I come to that topic. 6 The appellant and Patrick Hudd were charged jointly on an indictment with five counts and were found guilty on each count after a trial spanning six weeks. 7 The charges, the respective statutory maximum penalties and the sentences imposed upon the appellant following his conviction on them, were: 1. Murder of James Rawas: imprisonment for life · A head sentence of 20 years commencing on 13 August 2005 and expiring on 12 August 2025, with a non-parole period of 15 years expiring on 12 August 2020. 2. Aggravated armed robbery of James Rawas: imprisonment for 25 years · A head sentence of 8 years commencing on 14 October 2003 and expiring on 13 October 2011, with a non-parole period of 6 years expiring on 13 October 2009. 3. Aggravated armed robbery of Pedro Haedo: imprisonment for 25 years · A head sentence of 8 years commencing on 14 October 2003 and expiring on 13 October 2011, with a non-parole period of 6 years expiring on 13 October 2009. 4. Malicious wounding of Kevin Hines with intent to do grievous bodily harm: imprisonment for 25 years · A head sentence of 3 years commencing on 14 October 2003 and expiring on 13 October 2006, with a non-parole period of 2 years and 3 months expiring on 13 January 2006. 5. Assaulting Pedro Haedo occasioning him actual bodily harm whilst in company: imprisonment for 7 years · A head sentence of 2 years and 6 months commencing on 14 October 2003 and expiring on 13 April 2006, with a non-parole period of 1 year and 10 months commencing on 14 October 2003 and expiring on 13 August 2005. 8 The sentencing Judge (Newman J) gave this summary of the facts: "The events leading to the commission of the subject crimes occurred on 24 December 2002 in Bunnerong Road at Matraville. The deceased, James Rawas, was the proprietor of a Retravision appliance store in that road. Prior to the opening of the store at 9 a.m, Mr. Rawas had attended to the organisation of deliveries of appliances by speaking to his drivers in an area at the rear of the premises occupied by the store. Having done so he entered the store premises, which could only be done by way of an entrance situated on Bunnerong Road itself. On entering the store Mr. Rawas went to the store office and sat at his desk. Also in the office was Mr. Pedro Haedo, who was the store's bookkeeper. He also was seated at his desk. Just before 9 a.m. Mr. Kevin Hines, the store's sales manager, entered the premises. Having entered the premises he proceeded to switch on television sets which were on sale. The front door at this stage was unlocked to allow customers to enter. Prior to entering the store that morning Mr. Hines, when walking along Bunnerong Road, had seen two men standing in an area close to the store. Soon after he switched on the television sets Mr. Hines heard the front entry door slamming. When he turned around, having heard that noise, he saw the younger of the two men he had earlier seen out in the street. At the same time he observed a second man making his way to the rear of the premises, that is, towards the office. He noticed that this man had a revolver in his hand. Before Mr. Hines could leave the building he was grabbed by the younger man and physically forced into the office. Mr. Haedo deposed, and I interpose to say I accept his evidence without question, that when the man with the gun entered the office he yelled at the two "Get down on the fucking floor". Mr. Rawas was then seized by the gunman and forced into a position near where Mr. Haedo was located. I find that the man holding the gun was the prisoner Hudd, and the second and younger man, who forced Hines to enter the office, was the prisoner Brown. I find that it was Hudd who issued the first directive, which I have just set out. When Mr. Rawas was forced by Hudd to the position where Mr. Haedo was located, Hudd said to Haedo "Don't move or I'll kill you". Mr. Haedo overheard Brown saying from a position outside the office "Do you want a bullet? Do you want a bullet?". It was then that Mr. Hines was pushed into the office by Brown. Hudd then called out "Put your hands behind your head and get down or I'll kill you". Hines and Haedo then moved to the position where they were face down on the floor. Hines then felt a blow to the back of his head, which he believed was caused by the butt of the gun. Mr. Hines received as a consequence of that blow a severe laceration to the back of his head, which was treated subsequently in hospital by the use of a medicinal glue. It is the consequence of the blow that he received, and the wound that then occurred, which gives rise to the fourth of the crimes for which the prisoners now stand convicted. Mr. Haedo, shortly after the assault carried out on Mr. Hines, was struck himself on the back of the head with the body of a vacuum cleaner. On the evidence I find that it was the prisoner Brown who carried out that assault. Mr. Haedo suffered bruising as a consequence of that assault and it is that event which gives rise to the fifth of the crimes committed by the prisoners. Hudd, while this was going on, was making demands of Mr. Rawas to give him the keys to the safe. Mr. Rawas explained that he didn't have the keys, indicating that the delivery men, to whom he had spoken earlier in the morning, had them. During the course of the making of these demands by Hudd Hines was struck again, though not with the same intensity, and this time not with the gun, but in all probability with the vacuum cleaner, which had been used to assault Mr. Haedo. Again, I find it was Brown who carried out that physical act, albeit not the subject of a specific charge. The prisoners then proceeded to tie the three victims up using plastic electrical ties. They utilised those ties to tie their victims' wrists behind their backs. Both Mr. Haedo and Mr. Rawas had brought bags with them to the premises that morning. The prisoners searched those bags and stole cash, mobile phones and notebooks from both bags. The theft of these items by the prisoners from Messrs. Rawas and Haedo constitute the second and third crimes of which they stand convicted. While the prisoners were rifling the bags of Messrs. Rawas and Haedo, Hudd fired a shot from the revolver he was handing (sic: handling) into a packing case. Hudd and Brown shortly thereafter decamped from the premises. Mr. Rawas quickly extricated himself from the plastic ties. Once he had done that he seized a machete, which he kept in the office, and ran after the escaping offenders. He overtook Hudd outside a shop several doors down from the premises of Retravision. Those latter premises are occupied by a shop known as Bon's Deli. At the time of Mr. Rawas overtaking Hudd, Hudd had a bag slung over his shoulder. Hudd had in the bag, amongst other things, some more plastic ties, money which he had stolen from either Mr. Rawas or Mr. Haedo and the revolver he had used in the events which had taken place within the store. The events which then took place were witnessed by a number of persons within Bon's Deli. While it is a fact that the events which then took place did so at a rapid rate and some confusion is to be found in the account given by eye witnesses, which I find to be hardly surprising, the fact is that I find that the eye witnesses who were in Bon's Deli were all doing their best to tell the truth. In particular, despite the criticisms made of the evidence by Counsel for Hudd, I find that Peter Wayne Cole and Paul William Kerr, two maintenance fitters who were in Bon's Deli, at the relevant time, were witnesses of truth. While Cole deposed that Hudd shot Mr. Rawas twice, when in fact the evidence establishes that Mr. Rawas was only shot once, I accept his description of the event which led to the shooting of Mr. Rawas. Essentially, what Peter Cole described was that he saw Mr. Rawas seize Hudd, Mr. Rawas then held the machete he was holding to Hudd's face. Somehow Hudd managed to spin away from Mr. Rawas and put his hand inside the bag on his body, pull out the revolver and shoot Mr. Rawas at point blank range in the stomach. While Mr. Cole deposed that shortly afterwards a second shot was fired by Hudd into Mr. Rawa's body, the reality is that the second shot (which was fired) was fired upwards, passing through the awning over the footpath. Even though he had been shot, Mr. Rawas continued to hold on to Hudd for a short time then fell to the ground. Almost simultaneously with the event Mr. Rawas, then Mr. Hines and another employee of Retravision, namely Mr. Richard Monroche-Cabon, one of the store's drivers, arrived and struggled with Hudd. After the struggle which then ensued Hudd was finally disarmed. However, I find that during the course of the struggle, despite demands made by either Hines or Monroche-Cabon that he release the weapon, Hudd continued to attempt to use it. Again I accept Mr. Hines as a witness of truth. Whilst it may well be that he was confused as to where his fingers were when he attempted to prevent Hudd pulling the trigger, I find he was telling the truth when he said he placed this thumb between the firing pin and the magazine of the revolver and felt pressure from the hammer of the firing pin during the struggle. Eventually Hudd was subdued, arrested and taken into custody. Brown, in the meantime, had made good his escape. Indeed, I have no doubt that the fleeing figure, which is only just captured in the video from the security camera within Bon's Deli, is in fact Brown. Both Hudd and Brown, at the relevant time, were residents of the city of Goulburn. On the evening of 23 December they had driven in Hudd's vehicle to Kingsford and had stayed overnight at a local hotel. They had then driven from Kingsford to Matraville in the morning and parked the vehicle somewhere in the vicinity of Bunnerong Road. I do accept that Brown was acting as a chauffer at all times because of an eye problem suffered by Hudd, which in fact had been the subject of surgery at the Sydney Eye Hospital only a few days before the events in question. It follows that I, like the jury, do not accept Hudd's account that he was in Sydney on that day, that is 24 December, to attend the Eye Hospital for a check up on his eye condition. What I do find, is that the primary reason for the prisoners' journey to Sydney, was to rob the Retravision store at Matraville. I find that Brown, once he had cleared the immediate area of the crimes, took Hudd's vehicle and drove firstly to Wollongong and subsequently to Goulburn. He was ultimately arrested as a result of statements he made to a variety of lay witnesses about his participation in the crimes in question. Furthermore, in Wollongong, on the day the crimes were committed, he made a clumsy attempt to create a false alibi. The narration of events I have just given demonstrates a very gross breach of the criminal law by both prisoners. While the actions of both men are indicative of a high degree of criminal culpability, purely I might say on the objective facts I have found, I further find that the greater share of that culpability is to be ascribed to the prisoner Hudd. I so find because it is apparent :- (a) that Hudd, who is some 27 years older than Brown, was the dominant personality of the pair; (b) I find it was Hudd who planned the venture; (c) it was Hudd who had at all relevant times control of the revolver that was used; (d) it was Hudd who fired the fatal shot giving rise to the crime of murder." 1. An unreasonable verdict? 9 The Court of Criminal Appeal may allow an appeal against a conviction if of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence: Criminal Appeal Act 1912, s6(1). The Court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the Court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the fact that the jury has had the benefit of having seen and heard the witnesses (M v The Queen (1994) 181 CLR 487). 10 In R v Sharah (1992) 30 NSWLR 292, Carruthers J, (Gleeson CJ and Smart J concurring), gave the following exposition: "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." [30 NSWLR at 301B and C] 11 Carruthers J went on to discuss the advising of the Privy Council in Hui Chi-ming v The Queen [1992] 1 AC 34 and aspects of the decision of the Court of Criminal Appeal of South Australia in R v Britten and Eger (1988) 36 A Crim R 48. As Carruthers J explains, a correct analysis of those decisions, but in particular a correct analysis of the advising of the Privy Council, establishes that in a case falling within what his Honour had previously described as the second class of common purpose murder, the notion of contemplation on the part of the accessory is not to be equated with the notion of some form of positive authorisation, whether express or implied, by the accessory. 12 In an earlier decision of this Court, R v Vandine [1970] 1 NSWR 252, Herron CJ, (Maguire and Issacs JJ agreeing), made at 257 (1) – (19), the following observations which have, in my opinion, relevance not only as propositions of general application, but also as propositions that are particularly relevant to the given facts of the present appellant's case: "Courts have not been over-astute in giving a negative answer to the question whether or not the particular act causing the death charged came within the common design provided there was evidence that it was a part of the joint enterprise. An example of this is seen in R v Smith [1963] 3 All ER 597. It was held that as the appellant had taken part in a concerted attack and that since, in the circumstances, it must have been within his contemplation that one of his confederates might use a knife, which he knew him to be carrying, on the deceased, that use was within the scope of the concerted action. The decision of a Bench of five on the facts of that case reveals how far the criminal courts will act on inference to be drawn from facts surrounding the concerted arrangements, the inference eventually being drawn that the fatal wound was within the ambit of the concerted arrangement so that everything which was within it was the responsibility of each party who chose to enter into the criminal purpose. That case provides an example of how, in a criminal case, the Court is entitled to take a common sense view of criminal activities. There the knife, used to inflict the fatal wound, was carried by one of the appellant's confederates inside the building and at the time of the stabbing the appellant was outside the building; none the less the Court inferred that it would be used if occasion arose in order to facilitate the robbery, overcome resistance or make good the escape." 13 There was overwhelming evidence that on the relevant occasions two male persons had gone in company to the Retravision store for the purpose of there carrying out an armed robbery in company. There was overwhelming evidence of the actions, in concert, of those two robbers as they went about their criminal business of carrying out that armed robbery in company. There was overwhelming evidence that in the immediate aftermath of the carrying out of the armed robbery in company, one of the two robbers, namely the appellant's co-offender Hudd, had shot Mr. Rawas at point-blank range and in circumstances where the overwhelming inference to be drawn was that Hudd, when he fired at Mr. Rawas, then intended either to kill, or to inflict grievous bodily harm upon, Mr. Rawas. Hudd shot Mr. Rawas in cold blood and in broad daylight; he was seen to do so by witnesses whose evidence the jury at trial was entitled to accept and plainly did accept; and he was caught, so to speak, red-handed in possession not only of the revolver used in the shooting, but also of other items that could plainly be related to the antecedent armed robbery in company. 14 It seems to me that the appellant's position at trial was, therefore, this: that if the Crown could persuade the jury to find beyond reasonable doubt that the appellant was correctly identified as Hudd's accomplice, then the appellant was as guilty of Mr. Rawas' murder as was Hudd, the appellant's culpability in that respect being established because his conduct brought him within Carruthers J's second category of common purpose murder. 15 The real issue at trial, so far as concerns the appellant, seems to me to have been the issue of the correctness or otherwise of the appellant's identification by the Crown as the person who had been Hudd's accomplice in the pre-planned armed robbery in company of the Retravision premises. 16 The Crown case at trial against the appellant comprised a number of particular pieces of evidence which the written submissions of the Crown summarise as follows: "(a) Telephone calls between the appellant and Hudd in the days before the robbery; (b) Recent telephone calls between Hudd and one Glen Martin, an employee at the Matraville Retravision store until October 2002, two months prior to the robbery; (c) Evidence from Tracey Little, the former girl-friend of the appellant, who said the appellant called her on the evening of 23 December 2002 and told her he was staying at the Barker Lodge Motor Inn, Kingsford. This was only a short distance from the Retravision store; (d) Records showing that Patrick Hudd booked two rooms at the Barker Lodge Motor Inn on the night of 23 December 2002; (e) When spoken to by police on 23 January 2003 the appellant said that on the day of the offence he was at the Three Wreckerteers from 8 am to 9 am and from there went to the Wollongong area and then back to Goulburn; (f) Evidence from the owner of the Three Wrekerteers motor wreckers at Albion Park, Mr. Nguyen, who said the appellant was there on the afternoon of the offence and offered him money to provide an alibi for a robbery he had done; (g) An Alibi Notice dated 6 October 2004 ………… was filed nominating Scott Endersby at Port Kembla as an alibi witness. This man was in gaol at the time of the offence; (h) Various confessions of involvement in the offence to three witnesses – Carol Evans, Scott O'Connor and Darren Weekes; (i) Evidence from numerous witnesses providing a description of two men, one of whom fitted the appellant (and the other Hudd), being near or just outside the Retravision store just prior to the robbery. Although a number of inconsistencies understandably emerged from the various descriptions of the appellant, all generally fitted him; (j) Evidence from Paul Kerr, Mr. Barko, Ms Heikkanen and Mr. Taaffe describing a man fitting the description of the appellant running from the fight in the street a few seconds after the gun went off." 17 The Crown led as part of its case against the appellant various eye witness identifications. It cannot be gainsaid that they were, at the very least, inconclusive; and in some respects at least, were inconsistent among themselves. The learned trial Judge gave very careful directions about this evidence. 18 His Honour, having canvassed the other elements in the Crown case against the appellant summarised as follows that case and his Honour's directions upon it: "Well, members of the jury, in essence that is the case against Brown, namely, that he was in the area. There is the evidence of the motel manager, which I have not referred to, who said Hudd had booked in, he got the two rooms. You have got Hudd's evidence that Brown was there with him in the motel and he says that Brown in fact departed when he found that the Retravision store did not open as early as he thought it did because he, Hudd, was going there to see Martin and he sent Brown on his way in his, Hudd's, car because Brown said he had to see people in Wollongong. Secondly, of course, Tracey Little, the phone call, Barker Lodge, and you also have the phone records from the Barker Lodge and they are easily referred to on that chart you have, ……………………….. . The evidence of past association with Hudd so that Brown and Hudd knew each other, Brown subsequently makes statements to three people admitting his complicity in a crime committed with Hudd. The description of that crime, the Crown points out, varies. If you were to accept the evidence of those three witnesses that he had admitted complicity in a crime, it would certainly be open to you to conclude that it was these crimes. Even though there is reference to debt collections going wrong, it is open to you, if you accept that he did make those statements, that he was admitting his involvement in these crimes. The Crown says you would use the plethora of lies he told – and I am not going to go through them, members of the jury – as an indication of his guilty mind. False alibis. Even a lie about being in a white Toyota rather than a Mica green Holden Station Wagon, the Crown says, because the mica green Holden Station Wagon was owned by Patrick Hudd. So that is the Crown case against Mr. Brown. As I have said, (counsel then appearing for the appellant) says: "Hang on you would not rely upon any of those three witnesses as being reliable, you would reject their testimony and, in the absence of their testimony, the case against Mr. Brown collapses and, members of the jury, I direct you if you are of the view that you cannot rely upon the testimony of those witnesses – and I am not saying all of them, I mean, if you cannot rely upon one of those witnesses but if you exclude the whole of the testimony from your consideration and say 'I can't rely upon it', I would tell you very directly that you would have to acquit Brown because lies, by themselves, as I have told you, cannot be used as positive evidence. They can be used, of course, as evidence of a guilty mind and, when you couple it with the other evidence, the Crown says you would have no doubt that Brown was involved but, if you reject all those three witnesses, all that confessional material, you would have to acquit Brown because the rest of the evidence against him is, while in the area, he has told lies, it is not positive evidence of guilt. However, if you were to accept that confessional evidence given by those three witnesses, then the Crown puts it: A very compelling case is made against Mr. Brown, a case you would have no trouble in finding has been proved beyond reasonable doubt". 19 I should add that his Honour, earlier in the summing up, had canvassed carefully the alleged confessional evidence given by the particular Crown witnesses; and his Honour had canvassed thoroughly and fairly all the criticisms that had been made of that evidence by the appellant's counsel at trial, who was, it might usefully be observed, a barrister with very great experience in the representation of accused persons at trial. 20 At the conclusion of the summing up, the appellant's then counsel asked for, and his Honour gave, further short redirections as follows: "One, I made an error, when I said Mr. Nguyen had said that Brown, when he offered him the bribe, said to say that he had been there in the morning, it is that day, not in the morning, so bear that in mind. Secondly, just to clarify one of the directions of law I gave you in relation to the so-called confessional material involving Mr. Brown, i.e. the so-called confessions to Mr. O'Connor, Miss Evans and Mr. Weekes – and in fact this just clarifies, I believe, what I told you – you cannot convict Mr. Brown unless the Crown satisfies you beyond reasonable doubt that at least one of those confessional statements was made, and not only that, that it was in fact a true confession to his involvement, as it were, man number 2 in the events at Matraville on 24 December and not mere bravado or bragging. You have to be so satisfied." 21 The appellant's counsel was at once asked by his Honour whether the redirections were sufficient; and was told in response that they were. 22 The verdict of guilt returned against the appellant by the jury must be understood, in the light of such emphatic and precise directions, as conveying that the jury did in fact accept the relevant confessional evidence; and accepted it, conformably with the directions that had been given by his Honour, as credible evidence of admissions made seriously by the appellant. 23 At the hearing before this Court the appellant put before the Court an extensive written critique of the evidence of various of the witnesses who had been called against him in the Crown case at his trial. It is not necessary to set out the detail of this material. It is sufficient, in my opinion, to say that there are two short answers to the criticisms thus made by the appellant. One is that much of what the appellant says, was raised distinctly by his counsel at trial; was canvassed carefully and fairly in the summing-up to the jury; and, absent evidence to the contrary, must be understood as having been taken into account by the jury in conformity with those instructions. The other is that the jury, especially in connection with the confessional witnesses, if I may so describe them, had the advantage, which this Court does not have, of having seen and heard those witnesses as they gave, respectively, their evidence. As I have earlier pointed out, his Honour gave the jury emphatic and careful directions about the need for them to be cautious and careful in their consideration of that material. I see no basis upon which this Court would be entitled to say that it was not open to the jury to accept one or all of those confessional witnesses. 24 If there be then asked the fundamental question: was it reasonably open to the jury to find the appellant guilty as charged, then in my opinion, the correct answer is: yes. 25 I would not uphold this ground of appeal. 2. Miscarriage stemming from refusal to order separate trials? 26 The written submissions on this topic state: "At the trial on 1 November 2004 Application for separate trials. 11 November 2004 Application by Mr. Cook for the discharge of the jury in relation to the trial against Mr. Brown, on account of Dr. Gumbert. 12 November 2004 Application made by Mr. Cook for directions to the jury concerning the potential prejudice to his client Mr. Brown. 24 November 2004 Application for Ms Lesley Pantoleon's statement to be read to the jury, but the Crown said in front of the jury that the statement had to be altered to suit the Crown. 25 November 2004 Discussion about subpoenaed documents and editing of the statement of Detective Sergeant Whitfield. 26 November 2004 Dr. Gumbert's application for separate trials. Mr. Cook's application for separate trials due to the conduct of Counsel for Mr. Hudd. 29 November 2004 Discussions about the co-accused Mr. Hudd communicating with Mr. Brown and attempting to abort the trial, when in fact Mr. Hudd had been giving Mr. Brown death threats. Mr. Brown later made a statement to the police. 1 December 2004 Application by Mr. Cook for his Honour to leave manslaughter as an alternative to murder open to the jury for the case against Mr. Brown. 3 December 2004 Applications to discharge the jury made by Mr. Cook, Dr. Gumbert and the Crown." 27 As to the application of 1 November 2004: this application was made by counsel for Hudd. There was no concurrent application made by counsel then appearing for the present appellant. The learned trial Judge, having correctly identified and discussed the relevant authorities, expressed as follows his Honour's conclusions: "However, the Crown properly observes, it proposes to call no less than 87 witnesses. Of those witnesses, the great bulk of the evidence is evidence which is admissible against both accused, whereas the evidence of the witnesses, Nguyen, Hegudus, Weekes, Scott O'Connor and Karen Evans is admissible only in the case as the Crown put, against Brown. Plainly enough, the balance of convenience and the matter to be taken into account to which I have referred earlier in these reasons is the factor of importance. It seems to me while there is currently a conflict of authority in the Court of Criminal Appeal, ……………… , it appears to me that relative strength is still a factor to be taken into account. Here the case against the accused Hudd is on paper, and I stress, 'on paper' stronger than the case brought against Brown. The reason why I say that is that and again, I stress, nothing has been proved as yet on paper, Hudd was literally caught red-handed, normally a consideration which indicates a very powerful Crown case. It is in the background a very strong, and I repeat, on paper and yet unproved Crown case against Hudd that this application must be considered. The evidence which has been impugned by …… (counsel for Hudd) ….. this morning as being prejudicial to an extent where a positive injustice could occur, does not constitute the bulk of the evidence in the case. Admittedly one small piece of inadmissible and prejudicial evidence, of course, can swing a case unfairly against an accused person. I am keenly aware of that. However, the evidence in my view, can be appropriately dealt with with a direction reinforced during the course of the summing-up that that is the evidence of the witnesses to whom I referred constituting the evidence and admissions, and a false alibi could be (sic) raised only against Brown should be sufficient to avoid the possibility of a positive injustice occurring to the accused, Hudd." 28 I see no error of principle in this ruling upon Hudd's separate trial application. 29 As to the application of 11 November 2004: his Honour identified some six particular complaints made by the appellant's then counsel about counsel then appearing for Hudd. His Honour said, summarising his perception of matters as they then stood: "While I am of the view that it is appropriate at some stage to give a direction that the conduct of the case by one counsel is not to influence the jury's views of a case brought against the other accused, ………………………. I do not believe at this stage of the trial that it will be appropriate to accede to …….(the)…..application." 30 It was, in my respectful opinion, entirely open to his Honour, attuned as he was, and in a way that this Court cannot replicate, to the actual atmosphere of the trial, to take that stance. 31 As to the application of 12 November 2004: this application was debated on the 12th, 15th and 17th November. The upshot was a short but completely clear direction to the jury, [T747], which culminated in the following: "Now members of the jury, any impression adverse or otherwise gained from the manner or style of cross-examination by either counsel should, in no way, affect your assessment of the case against the other accused. You might think that that is obvious, but that's the way the law works." 32 I do not see that the appellant has any just cause for complaint about that direction. 33 As to the items dated 24 and 25 November 2004: I do not see that these have any relevance to the question whether there ought to have been separate trials. 34 As to the application of 26 November 2004: the application made on his behalf by the appellant's trial counsel concentrated, once again, upon aspects of the conduct at trial of counsel then appearing for the co-accused Hudd. His Honour, essentially, adhered to views earlier expressed by him, namely, that insofar as there was substance, - and his Honour thought there was indeed substance, - in the criticisms that had been made of the propriety of some of the things done by counsel for Hudd, then, and as his Honour observed, those improprieties had been directed at his Honour himself and at the Crown Prosecutor rather than at the present appellant's counsel. His Honour was of the view that any such impropriety "in no way ……..prejudices the situation of the accused Brown". 35 In my view this was quintessentially a matter for his Honour's judgment; and it has not been shown that his Honour erred in his approach. 36 As to the events of 29 November 2004: at the inception of the day's hearing the appellant's counsel at trial asked leave to mention a matter "…….which should be placed on the record because it potentially affects the future of this trial". 37 Counsel went on to detail instructions that he had received from the appellant "…… that conduct had been engaged in by his co-accused towards him whilst they'd both been in court which is calculated to cause this trial to abort ……". 38 Counsel went on to explain that, according to his instructions, Hudd had been endeavouring to have the appellant do some act in the presence of the jury, or make some prejudicial remark in the presence of the jury, such that there would be a resulting miscarriage of the then current trial, entailing a discharge of the jury. 39 Counsel indicated that there had been attempts to have the appellant withdraw counsel's instructions "because of a perception of the way the case is going is not particularly favourable to ….. (Hudd). The importuning or requesting has been consistent and has been extended to threats of death." 40 Counsel, as I read his submissions, did not actually make an application for a discharge of the jury to the end of having a reconstituted and separate trial of the appellant. There was a deal of discussion involving his Honour, both trial counsel and the Crown Prosecutor. The upshot was that his Honour noted that, as a result of what had been brought to his attention, he was "…… keenly aware of what could happen if the allegation is true. They may not be. It's been brought to my attention so I am on notice. Being on notice, of course, if something does happen, I'd be in a much better position to meet it. So at the moment, I propose not to do anything except to say that the comments have been noted, but should something happen, I am in a better position now to meet it should it occur than I would have been otherwise". 41 Once again, it seems to me that these were matters quintessentially for the prudent judgment on the spot of the trial Judge. I see no error in his Honour's approach. 42 As to the application of 1 December 2004: this matter will be dealt with separately and in the following section of these reasons. 43 As to the application of 3 December 2004: the application made on behalf of the appellant was made upon three essential bases. The first basis had to do with a submission made by the Crown which, in the submission of the appellant's trial counsel, went impermissibly beyond the approved description of the nature of the onus of proof resting upon the Crown in a criminal trial. As to this matter, his Honour indicated that he would rectify any problem by giving the jury a simple and definitive instruction; and his Honour did that in subsequent summing-up. The second basis had to do with a submission made by the Crown Prosecutor as to an aspect of the evidence that had been given by Miss Evans relating to a reference to a person other than either the appellant or Hudd. His Honour took the view that what had been put by the Crown Prosecutor was not an improper submission although it was, perhaps, a submission that " ………….. reflect(ed) robust advocacy". His Honour expressed the view that the matter could be dealt with adequately in the subsequent address of the appellant's counsel. The third basis had to do with a Crown submission relating to alleged lies told by an accused person. As to this, his Honour was of the view that justice could be done adequately by appropriate directions in the course of the summing-up; and his Honour did in fact give correct and careful directions on the topic. 44 In my opinion none of these matters establishes that the joint trial miscarried. 45 For the whole of the foregoing reasons I would not uphold this ground taken by the appellant. 3(a) Ought manslaughter to have been left to the jury? 46 In dealing with this application made by the appellant's trial counsel, his Honour, having canvassed the relevant authorities, adverted to a passage in the judgment of Carruthers AJ in R v Spathis and Patsalis (2001) NSWCCA 476 at [303]. Carruthers AJ there says: "If the jury were satisfied beyond reasonable doubt that it was the appellant Spathis who stabbed Mr. Ludwig, no question of manslaughter could arise because of the nature of the attack. If, on the other hand, the jury were satisfied that Patsalis, solely, stabbed Mr. Ludiwig, but that Spathis agreed to join with Patsalis in robbing Mr. Ludwig, knowing that Patsalis was armed with a knife, then again, no question of manslaughter could arise because in the circumstances Spathis would necessarily be convicted of murder under the felony murder doctrine. The jury's verdicts indicate that they must have been satisfied of one or other of those hypotheses." 47 His Honour went on to note that the appellant had denied not only that he had taken part in the robbery of the Retravision store, but also that he had even been in Sydney at the relevant time. 48 His Honour noted the evidence of admissions that had been led from the relevant lay witnesses in the Crown case. Having done that, his Honour then summarised as follows his conclusions and the process of reasoning upon which those conclusions rested: "If it were the case that the accused Brown in fact had given evidence admitting his participation in the robbery but saying that the gun was never meant to be used or saying that he was unaware that it was a loaded weapon or evidence of that type, then I am of the view that manslaughter would properly be the subject of a direction to the jury as submitted. However, that is not the case. In my view, the evidence of Evans and O'Connor, and, for that matter, Weekes, is evidence of participation in the robbery. It is the law, as I believe Carruthers AJ correctly stated in Spathis and Patsalis , particularly between paragraphs 277 and 304 of his judgment and in particular the quote at paragraph 303 which I have given, stated the law as it stands. In other words, that the unlawful and dangerous act of involving the use of a dangerous weapon, namely, a point 38 revolver, is such that its discharge involving the wounding or killing of a person is squarely within the felony murder concept. The use of a gun being to wound or kill another human being was a contingency that is, on the evidence, one which is certainly open to the jury to conclude. The evidence which would remove the concept of that contingency, in my view, simply does not exist here. In other words, as I have said, the admissions of participation in the robbery made do not, in my view, remove the concept of wounding or killing being a contingency which must have been in Brown's mind when the events took place." 49 I see no error of principle in his Honour's analysis; and I see no error in his Honour's application of those principles to the facts of the appellant's case as it stood at the time of the ruling. 50 I would not uphold this ground of appeal 3(b) Inadequate directions on joint enterprise? 51 Very early in the summing-up the learned trial Judge gave the jury the following directions upon the topic of joint criminal enterprise: "Members of the jury, you have heard during the course of the case 'joint criminal enterprise' and that is what the Crown alleges took place here. The law, members of the jury, is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other in carrying out that enterprise. The Crown must establish on the requisite standard of proof both the existence of that joint criminal enterprise and the participation in it by each of the accused. The joint criminal enterprise exists where 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 agreement need not be expressed but its existence may be inferred from all the circumstances. It need not in fact have been reached at any particular 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. If the agreed crime is committed by one or other of the parties to that joint criminal enterprise or if both in this case played some part in committing that crime, all parties are equally guilty of the crime regardless of the part played by each in its commission. Now, where instead of the crime previously agreed another crime is committed by one or other of the parties to that joint criminal enterprise or played some part in the committing of that other crime, that where the Crown has established that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime, all parties are equally guilty, meaning here, both parties are equally guilty of that crime regardless of the part played by each in its commission. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties; what must be contemplated by the parties is a substantial risk – and not merely a slender chance – that it will be committed. Perhaps to explain further, where instead of the crime previously agreed a crime other than that which was planned, that is, an incidental crime outside the scope of the common purpose is committed by one or other of the parties to the joint criminal enterprise, the Crown must establish that the accused contemplated the possibility that the incidental crime might be committed by one or other of the parties carrying out the joint criminal enterprise but nevertheless continued to participate in that enterprise with that knowledge. What that means here is that the Crown alleges that it may not have been that there was any intention to murder anybody when, as the Crown alleges, the accused entered the Retravision store at Matraville. However, the Crown case is that whoever committed the robbery at the store at Matraville – and I will come to the ingredients of that crime quite shortly – a dangerous weapon was to be used, a point 38 revolver, which was loaded. The Crown case is simply this, that whoever shot James Rawas may not have intended to shoot him at the commencement of the joint criminal enterprise, and indeed it may well be that the other person had no intention of shooting James Rawas or any other person. However, the fact that a dangerous weapon was to be used in the commission of the crime of robbery means that both persons must have appreciated that the risk of somebody being either grievously wounded or killed by the use of that weapon would have been apparent to all who took part in the robbery and, accordingly, the Crown's case here is that it was Patrick Hudd who shot James Rawas but that Scott Brown was aware of the use of a dangerous weapon in the commission of the armed robbery and should have been aware that, as an incident of that crime, somebody was likely to suffer really serious bodily harm or be killed by the use of that dangerous weapon and there, members of the jury, is the scope of a joint criminal enterprise in this case." 52 Shortly thereafter his Honour took the normal daily adjournment. At the resumption of the trial on the following day, applications were made by the appellant's counsel at trial for further directions on the topic of joint criminal enterprise. The learned trial Judge gave the following additional directions: "……………………….. (Y)ou will also recall that the last direction I gave you was to direct you as to the law relating to what has been described as felony murder or, as I think I said to you, otherwise known as constructive murder; these being legal colloquialisms. ……………………….. The case against Brown is not that he shot Mr. Rawas. You will recall that I gave you directions relating to the concept of joint criminal enterprise and it is enough for you to find Brown guilty if you are satisfied that, if you find that the shooting was done, if you so find, by Hudd, during or immediately after the armed robbery of the Retravision store at Matraville, was a contingency which Brown had in mind whether or not the shooting was intentional or whether or not it was carried out in furtherance of the unlawful common purpose; the common unlawful purpose being the robbery under arms of the Matraville Retravision store and that is the Crown case against Brown ……………….." 53 The summing-up then continued until the normal mid-morning adjournment. His Honour then asked counsel at trial for the appellant whether he was content with the final directions; and counsel responded that he was. 54 In my opinion, the directions given by his Honour were correct in principle; and related, correctly and fairly, the stated principles to the evidence in the case. 55 I would not uphold this ground of appeal. 4. Conclusion as to the appeal against conviction 56 In my opinion all of the grounds taken by the appellant are without substance. The appeal against conviction should be dismissed. 4. The application for leave to appeal against sentence 57 Hand-written submissions in connection with sentence were lodged by the appellant. I apprehend the intended grounds to be:- [1] All sentences should have been made concurrent. The partial accumulation ordered by the learned sentencing Judge has resulted in an overall result that is appellably excessive. [2] The appellant is on strict protection and expects to be on strict protection throughout the period of his incarceration. Incarceration in strict protection is regarded as itself a penalty and its incidents should be taken into account in connection with the overall sentencing. [3] The appellant has never had a conviction for an offence of violence. A sentence of 10 years with a non-parole period of 8 years for armed robbery in company is too severe. 58 The third of the grounds propounded is unsound in fact. The appellant's head sentence on each of the two aggravated armed robberies charged in counts 2 and 3 of the indictment was one of imprisonment for 8 years with a non-parole period of 6 years. Had the sentence passed upon the appellant for these two offences been in fact one of 10 years with a non-parole period of 8 years, I would have rejected out-of-hand the submission that such a sentence was manifestly excessive. The robbery was premeditated. From first to last it was accompanied by violence and threats of violence. During the course of the robbery a .38 calibre revolver was presented to the victims and was fired once in such a way as to coerce the victims into complying with the outrageous demands being made upon them by their attackers. Any armed robbery in company is a serious breach of the criminal law. Any such breach attracts a statutory maximum penalty of imprisonment for 25 years. A head sentence of about one-third of the statutory maximum, passed in respect of each of two related offences and ordered to be served concurrently, cannot be regarded, on any sensible view, as excessive when the relevant criminal culpability is balanced sensibly against the relevant subjective factors, all of which the learned sentencing Judge correctly identified and brought fairly to account. 59 It is correct to say, and as the appellant submits, that his antecedent criminal record did not contain a conviction for a crime of violence. The record was, nevertheless, a very bad one. It embraced a significant number of offences some of which involved breaking, entering and stealing. Others of the offences in the antecedent record were serious driving offences; and there were some drug-related offences. The record showed a breach of a community service order and three instances, one in 2000, one in 2003 and one in 2004 of imprisonment for periods ranging from a low of 6 months to a high of 3 years with a non-parole period of 18 months. The appellant, when he stood for sentence on 22 February 2005, so stood with an antecedent criminal record which could fairly be regarded as having manifested a marked disregard for the law. 60 Generally as to the points now taken by the appellant, the correct starting point is a simple one and it is stated succinctly by Gleeson CJ in his Honour's concurring judgment in R v Mills, unreported, NSWCCA 3 April 1995. His Honour there says: "For the sake of the appellant's determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness." 61 It is the case, as the appellant points out in his written submissions, that there is an abundance of authority, to much of which the appellant's submissions refer in terms, for the proposition that incarceration in protection is an additional hardship to the particular prisoner and that the incidents of such additional hardship are available to be taken into account in mitigation of sentence. 62 That the factor is available to be taken into account in mitigation of sentence does not mean that it is automatically to be weighted in such a way as will entail, more or less as a matter of course, that, no matter how heinous the particular crime or crimes for which punishment is being imposed, incarceration on strict protection must have the effect of reducing an otherwise proper sentence. 63 It is trite that a sentencing Judge must bring into a fair and sensible balance the objective criminality of the particular crime or crimes and such subjective matters as are properly available to be called in aid by the person standing for sentence. It is, however, important always to keep in mind that the striking of that balance in a way that is correct in point of legal principle, entails a need to be careful that subjective considerations do not simply swamp the relevant objective criminality. 64 As I have said, the robbery of the Retravision store was a premeditated crime that was, from first to last, instinct with violence. In the aftermath of the carrying out of that joint criminal enterprise an innocent man was shot to death at point blank range in broad daylight on the footpath of a public street. The appellant sought to argue that Mr. Rawas was an unprovoked aggressor of the co-offender Hudd; and that he had been shot by Hudd in self defence. The appellant submitted in terms that Mr. Rawas ought not to have accosted Hudd; but should have simply called for assistance from the police. I consider that such an argument is affronting, both to common morality and to common sense, and I would reject it out of hand. All five of the crimes of which the appellant was convicted, - and in my opinion correctly convicted on the evidence, - were appalling crimes, the proper punishment of which called for appropriately severe sentences. 65 The effect of the way in which the learned sentencing Judge structured the sentences passed by his Honour upon the appellant was to impose an effective head sentence of imprisonment for 21 years and 10 months with an effective non-parole period of 16 years and 10 months. The appellant has submitted that he should receive from this Court a reduced head sentence of imprisonment for 15 years with a reduced non-parole period of imprisonment for 11 years, both those periods to be dated from 14 October 2003. In my opinion that submission ought to be firmly rejected. As overall punishment, according to proper principle, for a cold-blooded murder; for two premeditated armed robberies in company, each of which was accompanied by egregious violence; for a malicious wounding with intent to do grievous bodily harm; and for an assault in company occasioning actual bodily harm; neither the overall head sentence nor the overall non-parole period can reasonably be regarded as appellably excessive. 66 I would grant leave to appeal against sentence. The appeal against sentence should be dismissed. 5. Orders 67 In my opinion the Court should order: 1. that the appeal against convictions be dismissed; 2. that leave be granted to appeal against the sentences passed at first instance; 3. that the appeal against those sentences be dismissed. 68 LATHAM J: I agree with Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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