New South Wales Court of Criminal Appeal CITATION: Clint Joseph Brilley v R [2008] NSWCCA 208 HEARING DATE(S): 6 August, 2008 JUDGMENT DATE: 9 September 2008 JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Blanch J at 3 DECISION: Grant extension of time to appeal. Appeal against conviction dismissed. CATCHWORDS: Criminal law - identification - unreasonable verdict Crimes Act 1900, s97(2) LEGISLATION CITED: Criminal Appeal Act 1912, s6(1) Evidence Act 1995, s116, s137, s138 CATEGORY: Principal judgment Festa v The Queen (2001) 208 CLR 593 R v Yuill (1993) ACrimR 450 R v Demirok (1977) 137 CLR 20 Domican v The Queen (1991-1992) 173 CLR 554 CASES CITED : M v The Queen (1994) 181 CLR 487 Hargan v The Queen (1919) 27 CLR 13 Ratten v The Queen (1974) 131 CLR at 516 Whitehorn v The Queen (1983) 152 CLR 657 Weiss v The Queen (2005) 224 CLR 300 PARTIES: Clint Joseph Brilley (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/5201002 COUNSEL: C Davenport SC (Appellant) L Wells (Respondent) SOLICITORS: S Moran & Co (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0169 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ LOWER COURT DATE OF DECISION: 4 September, 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Clint Brilley IN THE COURT OF CRIMINAL APPEAL CCA 2006/5201002 McCLELLAN CJ at CL GROVE J BLANCH J 9 September, 2008 Clint Joseph BRILLEY v Regina JUDGMENT 1 McCLELLAN CJ at CL: I agree with Blanch J. 2 GROVE J: I agree with Blanch J. 3 BLANCH J: The appellant stood trial in the District Court in Sydney between 31 July, 2006 and 4 September, 2006. He was tried together with Marco Coffen and was convicted of a charge of robbery while armed with a dangerous weapon contrary to s97(2) of the Crimes Act, 1900, the charge on the indictment. The jury could not agree in respect of the charge against Coffen and he subsequently pleaded guilty to a charge of accessory before the fact to armed robbery. The appellant was sentenced on 9 November, 2006 to a non-parole period of 5 years and a total term of 7 years and 6 months. His appeal is against conviction only. The Facts 4 The robbery in question was committed on 28 November, 2002 at the warehouse of CTI Logistics in O'Riordan Street, Alexandria in Sydney. Three employees of the company arrived for work shortly after 5.45 a.m. Soon after they arrived three men entered the warehouse disguised in dust masks or balaclavas, sunglasses, cotton gloves, disposable overalls and orange reflective vests. Two were armed with pistols and one with a baseball bat. They arrived at or had at their disposal a recently stolen white Isuzu truck, registration number LGN 500. They maintained contact using walkie-talkies with a fourth man who was outside in a stolen blue or purple Subaru. During the course of the robbery one employee Burt Errington was beaten with a baseball bat which broke. He ran from the warehouse but he was intercepted by the fourth man outside who threatened him with a pistol. 5 Matthew Marlow was one of the three employees at the premises when the robbers arrived. He was responsible for opening the premises. He went into the kitchen to make a cup of coffee and there was a man standing there with a pistol. That man was wearing a balaclava, black sunglasses, dark coloured clothes and an orange safety vest. The gun was a "bronzy gold" colour. He described the man as medium to solid build, approximately 175cm tall and with olive coloured skin. He could just see a small portion of skin on the man's neck. He was wearing white cotton gloves which appeared to be clean. He was threatened with the gun and forced to join his two fellow workmates. The robbers communicated on a two-way radio and were alerted to the fact that another employee was arriving. When he did arrive he was also forced to join the other employees. Marlow was asked to open the gate to the bonded area and he described the first robber he saw as having some type of accent but he could not tell what it was. 6 Marlow opened the gate and he saw the white truck LGN 500 pull up outside. One of the robbers got into the yellow Yale forklift which was in the bonded area and drove it to some pallets wrapped in black shrink wrap which contained Samsung mobile phones. He picked up the first pallet with the forklift and took it out to the truck. The forklift kept stalling and the first robber asked Marlow if he was able to drive it. When he said he could he was ordered to do so and he did. The first robber got up on to the side of the forklift and held the pistol to Mr Marlow's head. Marlow was ordered to load the truck with the black shrink wrap pallets of mobile phones. There was some conversation between himself and the robber. When he had finished loading them, he was told to rejoin his workmates and sit down. Burt Errington was tied up with silver tape and there was other tape which was used to tie up the other employees of the company. The first robber waved a pistol and said "Don't do anything for five minutes" and then left. Before leaving one of them sprayed the yellow forklift all over with a spray which looked like Glen 20. Marlow attempted to free another employee but could not but managed to get to a phone and dial 000, the emergency number and he reported the hold-up. At about that time another CTI driver Garry Sweeney arrived and he said he arrived shortly after the 6.30 a.m. news and he freed the bound men. 7 Somewhere between 6.15 a.m. and 6.50 a.m. three witnesses saw the white Isuzu truck and a blue Subaru pull into Council Lane at Leichhardt. The white truck made a loud noise as it hit an overhanging tree branch causing damage to the nose cone of the truck. The witnesses saw one man driving the truck and three men in the Subaru. One of the men from the Subaru tried to guide the truck down the lane so it could reverse into a side lane leading to the rear of 58 Moore Street. The truck could not be reversed into the side lane and was then reversed out of Council Lane striking tree branches as it went and it was then driven away. About 7.00 a.m. the white truck was found in Taylor Street, Leichhardt. The witness who found it noticed the ignition wires had been pulled out and there was damage to the nose cone and he called the Police. The load of about 3,810 stolen mobile phones was still on the truck when Police arrived. 8 At 10.30 a.m. Police went to the premises at 58 Moore Street and spoke to Michael Keith (also known as Michael Sullivan). The Police noticed a blue Subaru later identified as stolen. It had number plates on it AIE-52A which were stolen number plates and inside the premises the Police found a number plate WYZ-801. Burt Errington thought the number plate on the purple Subaru he saw was WYZ-781. About five minutes after the Police arrived the appellant and Coffen arrived in a silver Subaru registered to Coffen's mother. They were arrested. 9 A Ford motor vehicle belonging to the appellant's mother was found by the Police parked in the lane that day and the Police took it away for examination. Two witnesses who observed the white truck attempting to negotiate the lane gave evidence that this light brown Ford was parked in Council Lane at that time. One of those witnesses said he normally parked there but could not because of three cars parked in the lane including this Ford. 10 Inside the premises at 58 Moore Street, the Police found a baseball bat broken in half on a shelf in the garage and two handguns and three walkie-talkies on a shelf. In the garage next to the blue Subaru they found a black plastic garbage bag containing three pairs of disposable overalls, two orange reflective vests, white cotton gloves, 12 disposable dust masks, two pieces of tape – one grey and the other black, packet labels for disposable overalls, another disposable face mask, sunglasses and labels, a price tag for a balaclava, a packet label for ten dust masks and cotton gloves. Two balaclavas and caps were found in a sports bag. NSW number plates WYZ-801 were found on a shelf. A red Marbig notebook containing three entries: "get and fix car, get disguises for B1, go early so no drawback" was found in the silver Subaru on the floor behind the passenger seat (the book bearing fingerprints of Coffen, Huang and other unidentified prints). Also found were torn pieces of paper which put together showed a sketch of the CTI Logistics floor plan and product descriptions for various mobile phones (bearing fingerprint of Huang), and a forklift that had been hired from Budget Forklifts by Michael Keith the day before the robbery. Items were sent to the Division of Analytical Laboratories and a DNA sample on one of the dust masks was found to match the appellant and DNA on a white glove matched a DNA sample from Coffen. 11 On 17 January, 2003 Matthew Marlow was taken to Redfern Police Station where he was shown four series of 20 photographs in each series. When he watched the third series he asked to see number 14 again. This was a photograph of the appellant taken just after his arrest. When shown the photo again he said "The eyes look familiar. Definitely the red mark." He was asked why it was familiar and he said "The hold up at work…His eyes look familiar from the first guy I saw that morning…did not get much of a look at him…the first man had a balaclava on…a black balaclava with his eyes showing." Marlow's evidence was that he took into account the red mark, the shape of the eyes, the shape of the head, his build and the shape of his neck. In evidence he described the red mark in the eye as a permanent red mark and said "It was like a blood mark in the corner of the eye." 12 The prosecution case significantly involved firstly proving that the premises at 58 Moore Street, Leichhardt were premises from which the robbers operated, secondly proving the appellant was connected with those premises at the relevant time and thirdly the identification of the appellant in the identification procedure. The Grounds of Appeal 13 Although not raised as a ground of appeal it was argued before us that the trial miscarried because of the length, lack of clarity and interruptions to the summing up which commenced on Friday, 25 August, 2006 and concluded on Wednesday, 30 August. The trial itself had commenced on 31 July and it had been preceded by a voir dire hearing from 31 October, 2005 to 25 November, 2005. The summing up in fact only proceeded on Friday morning, Monday and Wednesday. The jury went home at lunchtime on Friday and were not in court on Tuesday because one of the jurors was sick. 14 The "interruptions" to the summing up were all at scheduled breaks in the trial, at morning tea or lunch or on Friday afternoon or on the Tuesday when one juror was ill. Moreover the "interruptions" were at the instigation of counsel. On the first occasion the counsel for the appellant was seeking a redirection because of the incorrect assertion that the trial judge had placed an onus on the appellant. On the other occasions it was because counsel were seeking more favourable directions. 15 The length of the summing up in this case was effectively just over two days and although long, could not be categorised as excessively long in a trial where the evidence had taken four weeks. The "interruptions" did not in my view cause any problem for a jury understanding the directions given. It would be an unfortunate result in the management of jury trials if counsel were able to interrupt the summing up and then rely on those interruptions to maintain the trial miscarried. 16 The summing up did instruct the jury as to the relevant legal principles and it did relate the law to the facts of the case. It cannot be said it lacked clarity and in my view this argument put by the appellant fails. Ground 1 "The learned trial judge erred in not excluding DNA evidence relating to the appellant". 17 There can be no doubt that the premises at 58 Moore Street, Leichhardt, were associated with the robbery. The evidence to that effect is overwhelming including a finding of the plan of the premises which were robbed and a finding of a number of distinctive articles including guns and clothing of the same kind used in the robbery. The evidence clearly proves the robbery was planned from those premises and an attempt was made to bring the proceeds of the robbery back to those premises. Any evidence which links the appellant to those premises at the time of the robbery or before or immediately after may therefore be relevant as circumstantial evidence. 18 The appellant criticised the directions given by the trial judge as necessarily involving proof by the Crown that the first robber was wearing a dust mask whereas Mr Marlow identified the first robber as wearing a black balaclava. It is submitted the prosecution case was therefore contradictory. In fact what the trial judge directed the jury was that if the jury were to put aside the identification evidence then in order to conclude the appellant was guilty on the other evidence alone, it must be proved that he was present at the robbery and that would involve the finding that the mask was used in the robbery, that it bore his DNA profile and that he came in contact with the mask in the course of the robbery. The prosecution case, however, was not limited to those limited pieces of evidence. The prosecution case relied on all the circumstantial evidence including the identification evidence. The DNA evidence was admissible as a circumstance justifying a finding by the jury that the appellant had contact with that mask being exactly the same kind of mask as worn by one of the robbers at a time prior to the robbery. That was clearly relevant. 19 A further criticism was advanced in general terms before this Court about "technical objections" to the DNA evidence and reference was made in passing to submissions by trial counsel on the question of admissibility at the trial. As to general arguments about the fact that only the inner surface of the facemask was analysed, that they were stacked inside one another, that they were sent to the Division of Analytical Laboratories months after the offence, and that the relevant face mask was crumpled, those were matters of fact to be argued before the jury and were appropriate matters for the jury's determination. As to the passing reference to the objections raised in the trial to the admissibility of the evidence on technical grounds, the trial judge dealt fully with each of those objections. They included an assertion there had been a breach of continuity of the exhibit, the trial judge referred to the evidence of Ms Beilby, that there was no lack of continuity. The tender was also challenged on the basis that the integrity of the exhibit was compromised. The judge considered the evidence of the employees of the Laboratory and accepted their explanation as to any failure to adopt a continuous sequence of numbering. Similarly a submission was made of a compromise in the handling of Exhibit RR tracing the handling by Police officers of particularly No. 20 being the 12 facemasks. The judge accepted the evidence of the Police officers and the Exhibit Book as establishing a chain of continuity. 20 A submission was made at the trial that the judge should exercise a discretion under s137 of the Evidence Act to exclude evidence because it was so compromised that its prejudice outweighed its probative value. The trial judge quite properly rejected that submission. The further submission was made that Inspector McLennan did not enter the items he had received from the DPP in the Exhibit Book at Redfern and secondly, that Detective Henderson failed to fully comply with the recording regulations for exhibits and failed to return the exhibits and record them. The judge accepted some question might arise about the failure of the Police to record items in the book. He noted there was no evidence that the evidence itself was improperly obtained. He rightly concluded that s138 did not apply. Ground 2 "The trial judge erred in not excluding the photo identification evidence of Matthew Marlow". 21 At the trial objection was taken to the tender of this evidence. That objection was based significantly on the fact that the witness had not mentioned a blood spot in the eye of any of the robbers when he made his first statement to the Police. He was cross-examined and said he had tried his best to give a full description of the robbers to the Police and accepted he had not included this feature. The objection was also taken on the basis of the asserted limited opportunity to make a reliable identification bearing in mind the robber was wearing a black balaclava and wraparound sunglasses. The witness could not remember whether the balaclava had one opening for both eyes to look through or two separate openings. The photo identification was done by using a Powerpoint presentation on a computer with four presentations, each containing 20 photographs of men of the approximate age of the robbers. On seeing photograph number 14, which is one of the appellant, the witness said "The eyes look familiar. Definitely the red mark." He was cross-examined about the dark sunglasses and he said that the glasses slipped down from time to time and he was able to see the eyes of the robber. 22 The witness Marlow was in the presence of the robber for a significant period of time. This was the robber who first confronted him and who then asked him to drive the forklift and who was beside him on the forklift and gave him directions as to what to do with it. He had some conversation with the robber about loading the truck. The robbery was committed in daylight and the witness was in a very good position to see the eye of the robber at close quarters. It was a question for the jury as to whether or not his identification of the eye and/or his identification of the appellant was otherwise compromised by his fear. 23 There was a further question raised about the Powerpoint presentation because at the relevant time of identifying photo number 14 the equipment malfunctioned and that gave rise to questions as to whether the Police had coached the witness or there was some suspicious circumstance relating to the identification. That was denied by the Police and by the witness and that was also a matter for the jury. 24 It was submitted to this Court that the probative value of the evidence was negligible and should have been excluded having regard to the provisions of s137 of the Evidence Act, 1995. In Festa v The Queen (2001) 208 CLR 593 at 609 McHugh J said: "But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And that evidence is not prejudicial merely because it strengthens a prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task." 25 In my view the evidence was properly admitted. It was relevant and once admitted it required appropriate directions to the jury and in the subsequent grounds of appeal it is asserted such appropriate directions were not given. The question raised as to the reliability of this evidence was a matter for a jury to assess. 26 Before this Court criticism was made of the judge making an assessment of the reliability of the witness in determining the admissibility of the evidence. That is a part of the function that judges may have to perform in considering these questions and there is no validity in those criticisms. Ground 3 "The learned trial judge erred in directing the jury the appellant's case was that he had not participated in the robbery but that he may have been involved in the planning of it." 27 During the course of the summing up the trial judge did say: "They say we don't dispute a robbery occurred. We don't dispute there were guns. We don't dispute the goods were taken from the scene of the robbery to 58 Moore Street. We weren't involved. We did not participate in that robbery, that's what they say. They don't say we were not involved in the sense that we didn't plan it, we didn't make telephone calls." 28 Counsel raised this issue with the trial judge on the basis that the appellant had never raised that issue. The appellant did not give evidence and that issue was never raised on his behalf in cross-examination. As a result the judge further directed the jury when he said: "Now finally there is one other matter which is somewhat more important and I want you to pay attention to this. I did say, I am informed, that I told you that the accused do not dispute that they were involved in the planning of the robbery. I did say, I am well informed, they did not say to you they did not plan it, they did not say to you they did not plan it. Now I want you to completely ignore that because they have not said anything except that they are not guilty. They have not addressed any planning and you have heard no evidence of any planning and if you came to a conclusion or discussed whether they were involved in the planning you would have no evidence on which to come to that so you would be wrong in law to be going in that direction. What I said was very undisciplined and I take it back and I do not want you to pay any attention to it. Each accused has said nothing except I am not guilty. So there is absolutely no evidence of any planning by either of them. There is no suggestion from any evidence that Coffen or Brilley were involved in the planning and they say they are not guilty as charged." 29 It is submitted on behalf of the appellant that the mistake made by the trial judge was not cured by his further direction and the jury should have been discharged. In R v Yuill (1993) 69 ACrimR 450 at 453 and 454 Kirby ACJ said: "Courts will assume that jurors properly instructed will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in the Court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, views and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled. Judge Herron made observations in this case that such is his conviction and experience. His Honour's expression of opinion parallels that of many other judges." 30 This expression of opinion as to the ability of jurors to accept directions given to them also accords with my experience and it applies not only to cases involving pre-trial publicity but to any matters of significance during the course of the trial. The jury system after all depends on the assumption that jurors do follow the directions they are given. Moreover in this case the jury would be well aware that no suggestion was made during the course of the trial that the appellant might have been involved in the planning but not in the robbery. The judge's direction would simply have reinforced their own observations. Ground 4 "The trial judge should have discharged the jury and failed to give reasons for not doing so." 31 For the reasons discussed above any error of fact in the summing up was corrected and no basis existed for the judge to discharge the jury. Ground 5 "The trial judge gave erroneous or at least confusing directions regarding the onus of proof." 32 The first complaint is that the judge said to the jury: "You must examine all the evidence and put it together in a way that either satisfies you beyond reasonable doubt that X and Y – Brilley and Coffen – each individually is guilty or in such a way, having put it all together, you are not satisfied beyond reasonable doubt that one or the other or both is guilty and therefore find them both or one or the other not guilty." 33 The submission is made that the use of the phrase "putting it all together" suggests there is a need to have something tangible to support the conclusion particularly the conclusion that the verdict should be not guilty. In my view what the trial judge said amounted to no more than telling them they had to consider all of the evidence. He went on after these remarks to give very clear and strong directions as to the onus of proof and he continued to refer precisely and correctly to the fact that it was for the Crown to prove the case beyond reasonable doubt and that the appellant did not have to prove his innocence. Part way through the summing up counsel for the appellant misquoted the judge as having said "You have to be satisfied they are not guilty" as part of this passage. The judge appears to have accepted that he said that (although he did not) and he then directed the jury again that "The Crown bears the onus and the accused bear no onus so you do not have to be satisfied they are not guilty you understand." 34 The second passage complained of in the summing up is: "You are presumed to have a really strong community sense of what is right, of what is true, of what is doubtful and you pool that and come up with a just conclusion." 35 That statement occurred shortly after the first statement referred to above and immediately before the judge gave very clear and strong directions about the onus of proof. Although this direction is not in the usual terms, it amounted to no more than telling the jury that they should use their accumulated experience and commonsense and no confusion or misdirection resulted from what was said. The submission was made to us that the reaction of counsel to these directions clearly indicated the impact of the continued misdirection. That reaction may well have resulted from the fact that counsel was mistaken as to what the trial judge had said. Ground 6 "The directions given by the learned trial judge on the evidence relating to the finding of DNA matching that of the appellant on exhibits tendered in the prosecution case were erroneous and inadequate." 36 No submissions were made to this Court in support of the contention that these directions were erroneous. The submission made here was that the judge did not adequately assist the jury in its task. Again what that inadequacy is asserted to be was not identified. 37 The judge did give directions to the jury about expert evidence generally and he directed the jury about DNA evidence. He also directed the jury about the continuity of the exhibits which had been a matter of contention and he explained the relevance of DNA evidence as part of the circumstantial evidence in this case. I do not believe any further directions were necessary. Ground 7 "The directions given by the learned trial judge on the evidence given by the witness Matthew Marlow and the directions in relation to evidence of identification generally were erroneous and inadequate." 38 The submission was made that because the identification evidence was crucial in the case of the appellant, it was necessary to alert the jury to the general deficiencies of identification evidence and the specific weaknesses in the evidence against the appellant. A broad submission was made here that the summing up did not satisfy these requirements. No specific deficiency is identified. There is no doubt the broad proposal advanced by the appellant is correct; see, for example, Domican v The Queen (1991-1992) 173 CLR 554 and s116 of the Evidence Act, 1995. The judge did direct the jury to consider the identification evidence on its own and to consider both the honesty and reliability of the witness. He directed them that special caution is required because an honest witness may be mistaken. He warned the jury that miscarriages of justice had occurred and that special caution was needed when considering identification evidence. He went on to identify a number of issues which might affect the reliability of identification in this case including the failure by Marlow to mention the red mark on the eye in his first statement to Police, the delay of seven weeks from the robbery to the photo identification, the limited opportunity of Marlow to observe the offender at the scene, the emotionally charged situation of the robbery, the interruption of the video presentation by the Police, the extent of the disguise and the concession by Marlow that he didn't get much to look at, allegations of bias in relation to Marlow, that Marlow knew people had been arrested at the time of the photo identification and the person identified was a stranger. 39 The judge went on to tell the jury if they were not satisfied that the evidence amounted to a positive identification of the appellant but only evidence he resembled the robber, then he explained how that became relevant in the circumstances of the case. In my view the directions given more than adequately alerted the jury to the special need for caution in identification cases and drew their attention to the particular features of this case which required scrutiny. Ground 8 "The verdict of the jury is unreasonable having regard to the evidence." 40 Section 6(1) of the Criminal Appeal Act, 1912 states that the Court of Criminal Appeal must allow an appeal against conviction if the Court is: "…of opinion that the verdict of the jury should be set aside on the grounds that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice". The High Court considered the history of this section of the Act in M v The Queen (1994) 181 CLR 487. The majority of the Court in a joint judgment of Mason CJ, Deane J, Dawson J and Toohey J considered the terms which have been used over the years in setting aside a verdict as unreasonable. These terms include "unjust or unsafe", "unsafe or unsatisfactory", or "dangerous or unsafe", see at page 492. They went on to quote the view of Isaacs J in Hargan v The Queen (1919) 27 CLR 13 at page 23: "If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance." 41 They also quoted the statement of Barwick CJ in Ratten v The Queen (1974) 131 CLR at page 516 that: "It is the reasonable doubt in the mind of the court which is the operative factor". 42 It was suggested in the majority judgment that some cases had indicated that such broad tests place insufficient emphasis upon the fact that the jury had seen and heard the evidence. In Whitehorn v The Queen (1983) 152 CLR 657 at page 687 Dawson J said: "In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given … These considerations point to important differences between the functions of the jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot." 43 In M v The Queen Brennan J at page 504 to 505 expressed the view that the test was "…to determine whether a jury, acting reasonably and appreciating the burden and standard of proof, could have convicted on the evidence available to support the conviction." Applying that test to the facts of that case he concluded the conviction should not be overturned whereas the majority concluded the conviction should be overturned. McHugh J at page 525 came to the conclusion that the appropriate test was "If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict." Applying that test he also concluded the conviction should stand. 44 In the majority judgment at page 494 it was said: "But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." 45 In the context of an appeal relating to the application of the proviso to the various Criminal Appeal Acts in Australia in Weiss v The Queen (2005) 224 CLR 300 in a unanimous judgment of six judges, the High Court said at paragraph 39 on page 315: "Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt." And at paragraph 41 on page 316 it was said: "That task is to be undertaken the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." 46 In my assessment of the evidence the accused was proved beyond reasonable doubt to be guilty of the offence. I note in this case the jury was in a somewhat better position to make an assessment because they were able to assess Mr Marlow in particular as to honesty and reliability and they were in a position to observe the appellant and compare the description of the first robber given by Mr Marlow. The appellant was not brought to Court for the hearing of the appeal. 47 The basis for my belief may be stated briefly. Firstly, for the reasons I have given, there is no doubt that the premises at 58 Moore Street, Leichhardt were used for the planning of the robbery and the preparations for it. The robbers clearly intended to bring the stolen vehicle with the mobile phones back to those premises. Secondly, there was significant evidence linking the appellant to those premises. His mother's car was observed parked in the lane near the premises at the time the robbers brought the truck into the lane after the robbery. That vehicle was still there when the Police arrived and they removed it subsequently. The appellant arrived back at the premises with the co-accused Coffen in a silver Subaru shortly after 10.30 a.m., that being approximately four hours after the robbery. The facemask with the DNA of the appellant was found in a bag next to the blue Subaru in the garage of the premises and the evidence linked that car to the robbery. Other items in the bag matched items worn by the robbers and included distinctive items. Thirdly, the evidence of the witness Marlow relating to the resemblance of the appellant to the robber and in particular his identification of the red spot in the eye of the robber is of significance as resemblance evidence. Allowing for the tension of the situation at the time of the robbery, the witness Marlow was in a good position to observe the blood spot in the eye of the robber. The robber was beside him on the forklift giving him directions and there was some discussion between him and the robber about the loading of the truck. The only part of the robber he could clearly see was his eyes and it might reasonably be expected that in daylight at such close quarters he did notice such a distinctive mark. I am not troubled by his failure to mention this feature to the Police at first. It appears to me reasonable that he was reminded of it when he saw the photograph. The jury obviously assessed him as a reliable witness and I see no reason to view him differently. 48 Accordingly, I would grant an extension of time to appeal but I would dismiss the appeal against the conviction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.