Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke v R [2012] NSWCCA 272 Hearing dates: 27 November 2012 Decision date: 14 December 2012 Before: Hoeben JA at [1] Davies J at [93] S Campbell J at [94] Decision: Leave to appeal be refused in respect of ground of appeal 1. Grounds of appeal 2 and 3 dismissed. The hearing of the application for leave to appeal against sentence is stood over to a date to the Registrar's next call over. Catchwords: CRIMINAL LAW - conviction appeal - five counts of "break and enter premises and commit a serious indictable offence" - adequacy of "Black direction" - whether inappropriate pressure exerted on jury - whether Crown negatived the defence of duress - whether trial miscarried by reason of inappropriate remarks by Crown prosecutor - direction to jury appropriate in the circumstances - sufficient evidence to negative duress - minor errors by Crown prosecutor in address which did not "warrant interference" with the appellant's convictions - appeal dismissed. Legislation Cited: Criminal Appeal Rules - r 4 Cases Cited: Gonzales v Regina [2007] NSWCCA 321; 178 A Crim R 232 Ingham v R [2011] NSWCCA 88 McKey v R [2012] NSWCCA 1 Ngati v R [2008] NSWCCA 3; 180 A Crim R 384 SKA v The Queen [2011] HCA 13; 243 CLR 400 Whitehorn v R [1983] HCA 42; 152 CLR 657 Category: Principal judgment Parties: Michael Clarke - Appellant Regina - Respondent Crown Representation: Counsel: Ms D Hawkins - Applicant Ms M Cinque - Respondent Crown Solicitors: Australian Criminal Law Specialists - Applicant Mr S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/210610 Decision under appeal Date of Decision: 2011-07-21 00:00:00 Before: Williams DCJ File Number(s): 2009/210610 Judgment 1HOEBEN JA: Nature of proceedings This is an appeal and an application for leave to appeal against conviction. The appellant made an application for leave to appeal against sentence but that application required amendment and did not proceed. 2The appellant appeared for trial at the Sydney District Court before Judge Williams and a jury of twelve on 7 April 2011 and was arraigned on an indictment containing the following five counts: Count 1 - On 30 June 2009 at Chatswood in the State of New South Wales, being in company with persons unknown, did break and enter premises of "Alto Group Motorcycles" at 734 Pacific Highway and did commit a serious indictable offence therein, namely larceny. Count 2 - On 19 August 2009 at Taren Point in the State of New South Wales, being in company with persons unknown, did break and enter the premises of "Cycle City", at 92 Taren Point Road and did commit a serious indictable offence therein, namely larceny. Count 3 - On 26 August 2009 at Jamisontown in the State of New South Wales, being in company with persons unknown, did break and enter the premises of "Sutto's Motorcycle Supply" at 1 Blaikie Road and did commit a serious indictable offence therein, namely larceny. Count 4 - On 11 September 2009 at Jamisontown in the State of New South Wales, being in company with persons unknown, did break and enter the premises of "Sutto's Motorcycle Supply" at 1 Blaikie Road and did commit a serious indictable offence therein, namely larceny. Count 5 - On 16 September 2009 at Emu Plains in the State of New South Wales, being in company with Terrence Raman and other persons unknown, did break and enter the premises of R and D Husqvana at 2/116 Old Bathurst Road and did commit a serious indictable offence therein, namely larceny. 3On 28 April 2011 the appellant was found not guilty on counts 1 - 3 inclusive and guilty on counts 4 and 5. He was sentenced on 21 July 2011 to an aggregate total term of 6 years imprisonment with a non-parole period of 3 years 6 months. Evidence at trial 4By way of summary, the Crown case in respect of each of the counts was as follows: Count 5 5At 1.03am on Wednesday, 16 September 2009 Stefan Appelgren, the owner of the factory unit R and D Husqvana at 2/116 Old Bathurst Road, Emu Plains received an intruder alarm activation by SMS to his mobile telephone. He left home and drove to his business premises. 6On arrival, Mr Appelgren saw a white Nissan Patrol RC 6984 towing a box trailer emerge from the driveway next to his business premises and onto Old Bathurst Road. There were trail bikes in the back of the trailer. Mr Appelgren followed the vehicle and saw it stop to allow two unknown males to get out of the vehicle before it continued along Old Bathurst Road. Mr Appelgren continued to follow the vehicle to the M4 Motorway and called the police. 7Highway Patrol officers and one Polair helicopter conducted a pursuit of the Nissan Patrol, which was recorded by way of video from the Polair helicopter. At Cowpasture Road, Edensor Park the Nissan Patrol stopped and one person jumped out of the driver's side of the car and another from the passenger's side and they ran into a residential area. As the Polair recording continued, a number of police officers searched for the two men. After about five and seven minutes respectively they were located, arrested, handcuffed and taken to police vehicles. 8One of the persons arrested was the appellant, and the other was Terrence Raman. This conduct was relied upon by the Crown as evidence of a consciousness of guilt in respect of this count. It was also relied upon to negative a claim of duress in respect of this count. 9The front registration plate of the Nissan Patrol RC 6984 had been obscured by a piece of grey cloth. The car was registered to the appellant's father. The box trailer had been stolen on the night of 8 September 2009 from Unanderra. Both it and the Nissan Patrol were very similar in appearance to those shown in CCTV footage relating to Count 4. 10Examination of the scene at R and D Husqvana revealed that both the rear door and rear roller door of the premises had been forced. Police undertook investigations relating to the 4WD and these gave rise to the other counts. Count 1 11At 1.40am on Tuesday, 30 June 2009 two witnesses drove past Alto Group Motorcycles at 734 Pacific Highway, Chatswood. They saw four men around a box trailer attached to a light colour 4WD. The men then got into the 4WD and drove along the Pacific Highway in a southerly direction. Emergency 000 calls were made by these witnesses at 1.41am and 1.48am. It was later found that the front glass door of the showroom had been damaged and the frame had been forced and lifted from its locking position. Five Kawasaki motorcycles had been stolen. 12On Tuesday, 30 June 2009 at 1.50.58 hours Nissan Patrol RC 6984 was photographed at the M2 Motorway North Ryde toll collection point. Attached to this vehicle was a box shaped trailer, covered with a grey tarpaulin which, in turn, covered something in the trailer. Count 2 13At 00.43am on Wednesday 19 August 2009 the security alarm of "Cycle City", a Yamaha dealership at 92 Taren Point Road, Taren Point was activated and the owner of the premises attended the premises shortly thereafter. He found that entry to the premises had been gained through rear roller doors which had been smashed forward. Motorcycles and accessories were stolen. 14On Wednesday, 19 August 2009 at 1.19.51am Nissan Patrol RC 6984 was photographed at the M7/M5 Motorways Interchange entry toll collection point. The photograph showed three motorcycles on the trailer. The owner subsequently identified the bikes as of the same type as those stolen. Count 3 15At about 1.15 hours on Wednesday 26 August 2009 a security alarm at Sutto's Motorcycle Supplies at 1 Blaikie Road, Jamisontown was activated. The owner, Christopher Sutton, was notified and he attended the premises. He saw that the rear roller door had been forced, using a wooden pallet to force the door inwards off its track. Motorcycles and accessories, including helmets, were stolen. One of the cycles stolen was a Joel Smets replica Husaberg trail bike. 16Call charge records demonstrated that at 1.25am on 26 August 2009 the appellant's mobile telephone received a call from 0404 433473 (listed as "Stons" in the "Contacts" section) which lasted two minutes fourteen seconds. The call was routed via the Wonderland 1 Cell Tower situated near the M4 Motorway in Minchinbury. 17On Wednesday 26 August 2009 at 1.35.10 hours the Nissan Patrol RC 6984 was photographed at the Cowpasture Road exit of the Westlink M7 Motorway. Attached to this vehicle was a trailer containing bikes, similar to those stolen, including the Husaberg. 18On 2 September 2009 the appellant pawned a motocross helmet at Liverpool Cash Converters. The Crown case was that this helmet was from the break, enter and steal offence at "Sutto's Motorcycle Supply" on 26 August 2009. On 14 September 2009 the appellant pawned a "Fox" brand motocross helmet at Liverpool Cash Converters. This was alleged to be one of the items stolen during the commission of this offence. 19Following the appellant's arrest, his mobile telephone was inspected. Photographs were observed on the SIM card. One photograph depicted two trail bikes. One of those was the unique Joel Smets replica Husaberg taken during the course of this offence. The other was the same make and model as a trail bike that was taken at the same time. Another photograph showed a 50 SX KTM, two of which were stolen during this offence. Count 4 20At about 12.55pm on Friday 11 September 2009 Sutto's Motorcycle Supply alarm was activated again. Mr Sutton attended and found that entry had been gained through the main roller door of the premises. It was evident that the roller door had been forced using a wooden pallet to force the door inwards off its tracks. Motorcycles and accessories were stolen. 21A portion of these events was recorded by CCTV. The CCTV showed a 4WD vehicle towing a box trailer, with enclosed top and sides, entering and exiting the driveway at 0.47.30 and 0.49.36 respectively. Three persons wearing hoodies ran out just before the 4WD exited. 22Call charge records demonstrated that at 1.09.45 on 11 September 2009 an incoming call to the appellant's mobile telephone went unanswered. The call was routed via the Chatsworth 1 Cell Tower, situated at the Mamre Road overpass, M4 Motorway, St Clair. 23At 1.09.46 a call was made from the appellant's mobile telephone and went to voicemail. The call was routed via the Wonderland 1 Cell Tower, situated near the M4 Motorway in Minchinbury. 24At 1.10.35 hours the Nissan Patrol RC 6984 was photographed at the M7/M4 Motorway Interchange entry toll collection point. Attached to this vehicle was a trailer containing motocross bikes. Bikes of similar type had been stolen from Sutto's Motorcycle Supply during the course of this offence. 25One of the photographs contained on the appellant's SIM card, depicted a trail bike of the same make and model as one stolen during this offence. 26At 1.15am the Nissan Patrol RC 6984 was photographed at the M7 Elizabeth Drive exit, the exit closest to the appellant's home at Bonnyrigg. 27In respect of each count, the Crown relied on the evidence in respect of all other counts for a coincidence purpose. 28The appellant spoke to police by way of an ERISP on the day of his arrest. The contents of the ERISP were as follows: He told them that earlier that day some mates of his wanted him to "move some stuff from a trailer". He had met them at the "Miller Pub" the day before. Their names were "Bill" and "Mohammed". 29He picked them up at 11.30pm. On the way he saw his mate Terry Raman and picked him up as well. The appellant was then offered $1,500 by "Bill" and "Mohammed" to assist them to bring a trailer back. He drove to Emu Plains as a result. 30They arrived at R and D Husqvana. Another unknown male in a white tabletop utility towing a box trailer was there. Either "Bill" or "Mohammed" said they were going to ram the roller doors of R and D Husqvana. The appellant told them that he did not want to be involved. He was told it was too late. Either "Bill" or "Mohammed" took an axe from the back of the Nissan Patrol. The appellant assisted "Bill" and "Mohammed" and the other male because of the threat by "Mohammed" that they "were going to kill us". The appellant complied with their orders which were yelled at him, by driving off with the motorcycles taken from the premises. 31The appellant then drove the Nissan Patrol RC 6984 from 116 Old Bathurst Road, Emu Plains and was confronted on the road by Appelgren. At this stage "Bill" and "Mohammed" got out of the vehicle. The appellant and Raman continued in the 4WD towing the seven stolen trail bikes onto the M4. He saw the police attempting to pull him over, but panicked and failed to stop. 32The appellant denied any involvement in the second break and enter at "Sutto's" which was the only other offence about which he was asked in the ERISP. Following the conclusion of the ERISP, the appellant asked to speak to police further (by way of an unrecorded conversation) and volunteered that he had lied when he told them that the other two men were named "Bill" and "Mohammed". In fact, their names were Matt Russell and Brett Williams. 33Matt Russell and Brett Williams were called by the Crown to give evidence in the trial and they denied any involvement. 34At trial, the appellant relied on an alibi notice with respect to counts 1 - 4 and claimed to have lent his father's Nissan Patrol to Matt Russell (and sometimes also Brett Williams) on each occasion. Before lending his father's car on the second occasion, Messrs Russell and Williams had come to his house and, in the presence of his mother, verbally and physically threatened him and damaged his car, a maroon Nissan Skyline. 35The appellant said that he committed the offence, the subject of count 5, but only because he was in fear of his life from Matt Russell and Brett Williams, who had threatened him with his father's axe. 36In the appellant's case, evidence was given by his mother that on 15 July 2009 she heard a commotion outside her home in Bonnyrigg and when she went out to see what was going on, she saw a man she recognised as Brett Williams pick up her wheelie bin and throw it at the appellant's car smashing the windscreen. She also saw that Matt Russell was kicking in the car panels of the appellant's car. She said that Matt Russell came to her and confronted her and told her to get inside the house or he would burn the house down. She said that the appellant was screaming to "get away from him because they carry knives". 37Joanna Gavrilidis, a school teacher by profession, corroborated Mrs Clarke's evidence. She was Mrs Clarke's neighbour. She said that on 15 July 2009 she heard noises coming from the appellant's house directly opposite her home at around 10pm. She saw the appellant and his mother shouting at persons to go away. She heard and saw screaming and shouting and one man pick up a bin and then she closed her door as she was scared. She heard a crash or thud. 38The appellant gave evidence at trial. He said that he did not call the police as he feared retribution and his father had no insurance on the house. He said that he would put the key to the vehicle on the top of the front wheel and the next morning he would find it there when he came out. The appellant's mother gave evidence that at the times when the events giving rise to counts 1 - 4 occurred, the appellant was at home asleep. 39The appellant relied upon the following grounds of appeal. Ground 1 - The learned trial judge erred in his direction to the jury by issuing a Black direction and a Majority Verdict direction at the same time putting pressure on the jury that if they did not come back with a unanimous verdict his Honour could give them a majority verdict direction in any case. Ground 2 - The jury verdict is unsafe because the Crown did not negative the defence of duress at all when raised by the appellant. Ground 3 - The trial miscarried by reason of the prejudice occasioned by the Crown prosecutor for both counts 4 and 5. THE APPEAL Ground 1 - The learned trial judge erred in his direction to the jury by issuing a Black direction and a Majority Verdict direction at the same time putting pressure on the jury that if they did not come back with a unanimous verdict his Honour could give them a majority verdict direction in any case. 40In order to understand this ground of appeal, it is necessary to set out some additional background facts. 41The jury retired to consider its verdict at 12.51pm on 21 April 2011. They returned to Court at 3.52pm and the matter was adjourned to Wednesday 22 April 2011 since Easter had intervened. The jury spent the whole of 27 April 2011 deliberating and the matter was adjourned at 4.07pm on that day. At approximately 11.30am on 28 April 2011, the Court was advised that the jury had agreed unanimously in relation to four counts, but was divided seven:five on the remaining count. That count was not identified. 42His Honour discussed the matter with counsel and gave the following direction: "HIS HONOUR: I might just give a standard Black direction. I perhaps need to let them know though at this point of time whilst I can take a majority verdict, the majority verdict has to be of 11 to 1, not 7 to 5 and just let them go for a bit longer. I rather suspect they are not going to get very far with a 7 to 5 split as indicated. Does anyone have any problems with that? CROWN PROSECUTOR: No your Honour. COUNSEL: No your Honour. HIS HONOUR: Well good morning ladies and gentlemen. I have your note here and I have discussed it with counsel. What I am going to do now is give you a direction that is given in circumstances like this. But I also need to perhaps tell you at this point in time you may have heard that in certain circumstances, majority verdicts can be given in a trial. There is probably not very much publicity about what constitutes a majority verdict but under the legislation a majority verdict is where 11 of the jurors agree and unless there is 11 in agreement, I cannot take a majority verdict. So it is not a question of just there being a simple majority, there has to be 11 jurors' verdict of either guilty or not guilty before a verdict can be taken. I am presuming that you are able to reach a verdict in respect of 4 of the matters and at the end of the trial, I can take a verdict in respect of those 4 matters. So I am just dealing with now that you have indicated that there is a difference of opinion about what the verdict should be. I will give you this direction. The thing is if a jury cannot agree on a verdict I have the power to discharge the jury in respect of a particular count on an indictment, or if there is only 1 count, then that would be in respect of the trial. We have reached the time where I could take a majority verdict, but as I said a majority verdict has to be 11 to 1. Experience has shown that if juries are given a bit more time sometimes differences can be worked out. As I have said to you in summing up you should listen to everyone's argument. If you cannot eventually agree all 12 of you, or 11 of you, on what the verdict should be well of course you have to be true to the oath or affirmation you took at the beginning of the trial to give a true verdict in accordance with the evidence and that is a verdict that is personal to you of course. As I have said to you, you do not have to have the same reasons for joining in a verdict that everyone else does but you have to agree upon what that verdict is, namely either guilty or not guilty. Now as I have said experience has shown that given some extra time juries can eventually work out disagreements and what I propose to do is urge you to try and sort it out. If you cannot and if there is no prospect of you being able to resolve the matter, well you can let me know that in a note and I will discuss the matter with counsel and we will reconvene the trial and deal with the situation. I know that sometimes things can get a bit heated in the jury room. That is just natural. As hard as it might be I would urge you to step back, look at the situation calmly. These are very serious matters that you are sitting here in judgment on and as I said to you before that one of the great things about a jury trial is that if the 12 of you do agree upon what a verdict should be, then that is a great comfort because it is better that 12 people agree rather than just 1, which is the case in a judge alone trial. But of course if you are consistent with your oath or affirmation of jury service, cannot agree with some or all of the rest of the jurors you have got to be true to the oath or affirmation that you took. Again, I will give you some more time to see if you can resolve the situation. If not, if you would let me know by a note and we will reconvene the court. Thanks ladies and gentlemen." 43The jury then retired to further consider its verdict at 10.42am. The following exchange then took place between the trial judge and counsel: "CROWN PROSECUTOR: Your Honour the effect of your direction then might have given them the impression that they can now do a majority verdict and there's been two recent cases of Ingham this year and Doklu late last year where appeal grounds were based around a direction that gave the jury the impression that they could but your Honour before they can do a majority verdict, you've got to take some evidence from one or more members of the jury and they may have the impression from what you've just said that they can now do an 11 to 1 verdict. HIS HONOUR: Well that's true but there was a recent decision that -- COUNSEL: Didn't your Honour just say they could come back if they can't decide? CROWN PROSECUTOR: He certainly did, yes. HIS HONOUR: I told them they could come back yes I mean we've reached the stage where I can take the majority verdict." 44The jury returned at 11.36am with a unanimous verdict in relation to all five counts. 45The appellant submitted that his Honour had mixed up a Black direction and a majority verdict direction and as a result, the jury had felt under pressure to produce a majority verdict. The appellant submitted that it was an error on the part of the trial judge to mix a Black direction with a majority verdict direction. 46The appellant submitted that the primary judge had committed the error identified in Ingham v R [2011] NSWCCA 88. There McClellan CJ at CL set out what this Court (Barr J with whom Hidden J and Tobias JA agreed) said in Ngati v R [2008] NSWCCA 3; 180 A Crim R 384: "61 In Ngati v R [2008] NSWCCA 3 the trial judge gave a Black direction which was modified to include the following reference to majority verdicts (a "modified Black direction"): "[22] ...The circumstances in which I may take a majority verdict have not yet arisen, and you should still consider that your verdict of guilty or not guilty must be unanimous. Now, when I refer to a majority verdict, the law now provides that in certain circumstances a verdict or guilty or not guilty agreed upon by eleven out of twelve jurors may be accepted. Those circumstances, as I have said, have not yet arisen, so you must confine yourself to attempting to reach a unanimous verdict either way of guilty or not guilty...." 62 This Court held that a direction in these terms was not inappropriate in that case. ... "[27] The principal contention [of the appellant] ... was that there was a miscarriage of justice because the jury were confused by the reference to a verdict by majority. Counsel referred to the judgment of this Court in R v RJS [2007] NSWCCA 241, a case in which, as in the present case, the jury delivered a verdict after they had reported having difficulty agreeing and after the consequent Black direction. The problem in RJS was that although the jury were told that they should continue to try to reach a unanimous verdict, they were at the same time told, in effect, that if they were unable to do so within quite a short time (effectively, I think, fifteen minutes) the Court would accept a verdict by majority. So the information which followed immediately upon the direction to return a unanimous verdict completely undermined it. [28] Counsel also referred to the Victorian case of R v VST [2003] VSCA 35, referred to in para [23] of RJS , in which the Victorian Court of Appeal considered it wiser for a judge sending a jury back to continue to try to reach a unanimous verdict to avoid telling them that the time at which a majority verdict might be accepted was imminent. [29] There was no such flavour in anything his Honour said to the jury in the present appeal. The jury were told a second time that the circumstances in which a majority verdict might be accepted had not yet arisen. His Honour gave no indication when, or, I think, even whether, those circumstances would arise. In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary. And after that, more than two hours elapsed before the jury delivered its verdict. ... [31] In my opinion this ground of appeal has not been made good. I would dismiss the appeal against conviction." " 47Initially at least, his Honour's direction to the jury may have been somewhat confusing in that his Honour explained to the jury that a majority verdict could be given in certain circumstances and went on to explain that a majority verdict was only possible if 11 jurors were in agreement. This was against a background where the Court had been advised that the jury were divided seven:five in relation to one count. The thrust of the direction was to urge the jurors to agree if that were possible. 48Although his Honour did say in the course of the direction that the time had arrived when he could take a majority verdict, he did not say that he would. As the direction concluded, however, his Honour made it clear that he was asking the jury to reach a unanimous verdict if possible and if they could not, the Court was to be advised so that the next step could be taken. He did not identify that next step. His Honour's concluding remarks were clearly to this effect: "Now as I have said experience has shown that given some extra time juries can eventually work out disagreements and what I propose to do is urge you to try and sort it out. If you cannot and there is no prospect of you being able to resolve the matter, well you can let me know that in a note and I will discuss the matter with counsel and we will reconvene the trial and deal with the situation ... These are very serious matters that you are sitting here in judgment on and as I said to you before, that one of the great things about a jury trial is that if the twelve of you do agree upon what a verdict should be then that is a great comfort because it is better that twelve people agree rather than just one, which is the case in a judge alone trial. ... Again I will give you some more time, see if you can resolve the situation, if not, if you would let me know by a note and we will reconvene the Court." 49Against that background, it is significant that the jury did return within an hour with a unanimous verdict on all counts. What his Honour was not doing was inviting or urging the jury to return with a majority verdict, even though he had explained what a majority verdict involved and did advise the jury that sufficient time had passed when he could take a majority verdict. 50The following observations of McClellan CJ at CL in Ingham are relevant. His Honour said: "84 ... (b) Even leaving to one side the trial judge's reference to a majority verdict during the course of his summing up, it is likely that, in light of the fact that majority verdicts had at the time of the trial been available in this State for almost two years, at least one if not more of the jurors would have known of their potential availability. Indeed, as noted at [41], the trial judge initially told counsel that he would leave out reference to majority verdicts in the challenged direction, but decided to include a reference after the Crown prosecutor requested that he "comply with the draft direction as it is recommended in the bench book because of the situation being that some of the jurors might be aware that there are majority verdicts available in NSW. ... (e) The obiter remarks of Spigelman CJ (Simpson and Harrison JJ concurring) in RJS referred to at [60] and James, Hoeben and Hall JJ in Hanna referred to at [66]-[68] do not support the proposition that the jury should be told nothing at all about majority verdicts unless and until all the s 55F preconditions have been fulfilled. Those remarks are limited to the proposition that a trial judge should not give a jury a Black direction and at the same time direct that the jury may return a majority verdict after a certain specified period of time has elapsed (as in RJS ) or without the need for any further deliberation (as in Hanna ). I appreciate that Spigelman CJ said in RJS at [22]: "No further direction [in addition to the Black direction] should have been given at this time" and James J said in Hanna at [23]: "in the present case it might have been a preferable course for the trial judge to have given a Black direction without referring to the possibility of a majority verdict", and that those remarks, when taken in isolation, may convey the impression that a trial judge should make no reference whatsoever to majority verdicts at any time before the fulfilment of the s 55F preconditions. However, when those remarks are read in context it is clear that they relate to the specific directions given by the trial judges and not to any direction that makes reference to majority verdicts. ..." 51In Ingham McClellan CJ at CL also said: "85 In my opinion the applicant has also failed to establish that the trial judge erred because he referred to the availability of majority verdicts at a time and in a manner which failed to adequately safeguard the applicant's common law right to a unanimous verdict and accordingly undermining the effect of the Black direction (Ground 1(b) of the applicant's Notice of Appeal against Conviction). My reasons are: (a) The Victorian Court of Appeal decision in Muto is distinguishable. In Muto the trial judge gave a direction to the jury before they retired to the effect that they would be able to return a majority verdict if they were unable to reach a unanimous verdict after at least six hours deliberation (see [70] above). By contrast, in the present matter the trial judge gave the challenged direction after the jury had been deliberating for at least eleven and a half hours and in response to a note from the jury informing his Honour that no amount of deliberation would lead to a unanimous verdict and requesting advice as to how to proceed. Furthermore, the only reference made by the trial judge in the present matter to majority verdicts was to the effect that the circumstances in which his Honour was able to take a majority verdict had "not yet arisen". His Honour neither identified the nature of those circumstances nor the time at which they would arise. Moreover, in contrast to Muto where "[u]nanimity was never held out to the jury as anything more than an ideal", the trial judge in the present matter emphasised that the jurors "should still consider that your verdicts must be unanimous". (b) In my opinion, the failure of the trial judge to include the words "and may not arise at all" (which form part of the Victorian model direction set out at [72] above) did not leave the jury with the notion that it was simply a matter of time before a majority verdict could be accepted. The words "[t]he circumstances in which I may take a majority verdict have not yet arisen" did not convey an impression either that such circumstances would necessarily arise in the future or that their existence would be entirely dependent on the passage of a specific period of time. (c) The trial judge's direction did not fail to make clear to the jury that his Honour had a discretion as to whether or not to accept a majority verdict. The use of the word "may" in the phrase "[t]he circumstances in which I may take a majority verdict have not yet arisen" plainly indicated that the trial judge was not obliged to accept a majority verdict even if such a verdict was returned by the jury." 52As indicated, while here the primary judge told the jury that the time when he could accept a majority verdict had arrived, he also told them to continuing deliberating to try to reach the unanimous verdict which they did less than an hour later. It was apparent that the Black or "perserverance" direction in respect of unanimous verdicts had the desired effect. As "the split" had been seven:five, any reference to a majority verdict can have had no effect on the jury entering a unanimous verdict a short time later. Rule 4 Criminal Appeal Rules 53This ground of appeal has not been made out. That does not end the matter. Rule 4 of the Criminal Appeal Rules applies to this ground. Not only was no objection taken to the direction given by his Honour, but defence counsel endorsed the direction when some reservations had been expressed by the Crown. 54In Ingham McClellan CJ at CL in similar circumstances said: "50 No objection was taken by defence counsel to the directions noted at [39]-[40], either when the trial judge read its proposed terms aloud to counsel in the absence of the jury or when it was actually given to the jury by his Honour. Furthermore, defence counsel at no time sought any redirections. Accordingly, Rule 4 of the Criminal Appeal Rules applies. ... 52 In R v Jeffrey (unreported, Court of Criminal Appeal, NSW, 16 December 1993), Mahoney JA stated: "[It] is proper to emphasise the importance of the principle embodied in r 4. In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial ... ... and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial." 53 This passage has been cited with approval in many subsequent decisions including R v DH [2000] NSWCCA 360, R v King [2000] NSWCCA 507 at [54], and R v ITA (2003) 139 A Crim R 340 at [93]. 54 In R v Abusafiah (1991) 24 NSWLR 531 at 536 Hunt CJ at CL stated: "The requirements of r 4 of the Criminal Appeal Rules (NSW) do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. ... There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice ."" 55The fact that no objection was raised by counsel for the appellant at trial and that counsel positively endorsed the direction, is strongly indicative that defence counsel did not believe that in the circumstances there could be any concern about the trial judge's statement, or that any miscarriage of justice might occur. In my opinion, that view is correct. I would apply r 4 and refuse leave to appeal in respect of this ground. Ground 2 - The jury verdict is unsafe because the Crown did not negative the defence of duress at all when raised by the appellant. 56By way of background to this ground of appeal, the persons identified by the appellant as having threatened him, so as to force his participation in the offence, Matt Russell and Brett Williams, were both called to give evidence by the Crown. Matt Russell (who was brought in from prison) denied any knowledge of the appellant and gave evidence regarding his knowledge of Brett Williams which was broadly consistent with that given by the latter insofar as they knew each other because Brett Williams was a friend of Matt Russell's brother. 57Matt Russell denied any knowledge of the appellant or involvement with any of the offences. He had a criminal history involving numerous aggravated break, enter and steal offences. A telephone number with the name "Matt Russell" was recorded in the address book on the appellant's mobile telephone. In cross-examination, Mr Russell said he could not remember his number and denied that the appellant had it, or that they had been in contact via it. Telephone records showed numerous calls passing between the two numbers at around the times of the events in counts 4 and 5, including one from "Matt Russell" at 02:28:13 on 16 September 2009, i.e. about 48 minutes after the appellant's arrest. 58Brett Williams gave evidence and denied any knowledge of the appellant and of any of the offences with which the appellant stood charged. Williams had a minor criminal history, which did not include any offences of this nature. Both Mr Russell and Mr Williams were cross-examined that they had gone to the appellant's house on 15 July 2009 because he told them he would not lend them his father's car (as he had in the past). Both denied it. Mr Russell drew attention to the illogicality of a suggestion that they had attacked the appellant's car on 15 July 2009, yet later the appellant supposedly helped them. In the course of cross-examination by defence counsel the following exchanged occurred: "COUNSEL: Q: On 18 July sir - sorry 18 August sir, you picked up that vehicle, that four wheel drive vehicle again outside Mr Clarke's home, didn't you? A. No. Q. In Kincumber Road, Bonnyrigg, didn't you sir? A. No, I didn't. If I'd threatened his life, why would he come - give me his vehicle after that, why - I don't understand that. You told me I threatened his life, his family's life and then he lets me borrow his car. Isn't that a bit strange to you? If someone threatened you for your life, would you let him borrow your car? Wouldn't you call the police if you know they're coming to pick up your car? (T.273.46-274.6) ... "Q. At some stage during the evening, you went and picked up that vehicle outside of the Clarke resident in Kincumber Avenue, Bonnyrigg, didn't you? A. No. Like I said to you before, if I threatened you for your life, would you let me borrow your car, or would you call the police and tell them that I'm coming to pick it up? Is that a fair enough question to ask you?" (T.275.8) 59The primary judge in his summing up to the jury said the following in relation to duress: "One of the things in the criminal law is that the Crown has to establish that the acts of an accused, no matter what sort of offence is alleged, that they were done voluntarily, and in this particular case in order to prove the accused did act voluntarily the Crown must eliminate any reasonable possibility that Mr Clarke acted under duress. The accused does not have to establish that his actions were done under duress. ... Once the Crown is aware that there is an issue as to the voluntariness ... the obligation rests on the Crown to negative that the accused acted under duress. In other words the Crown has got to remove duress as a reasonable possibility before you can convict. Now as I understand the present case, what the Crown is saying to you is that you just would not accept that there was any duress at all ... As I understand it, the Crown is saying to you well you just would not believe that, you would not accept that there was any duress at all. ... So essentially, as far as duress is concerned, it is an all or nothing alternative that the Crown is suggesting to you that you just would not accept that there was any threat with an axe, that it just does not make sense." (SU 13-14) 60The appellant raised two issues in relation to this ground. Firstly, he submitted that the evidence of Mr Russell and Mr Williams was unconvincing and that they had a clear motive to not tell the truth. He submitted that the evidence of Mr Appelgren that two males jumped out of the vehicle and ran off after they raised their arms in the air was consistent with Messrs Williams and Russell being present in the four wheel drive and threatening him. The appellant submitted that there was a genuine consistency in his version of events, since he had told the police about the duress during his ERISP and had consistently maintained that version of events thereafter and in evidence at trial. Finally, on that issue, the appellant submitted that both Mr Russell and Mr Williams were physically big persons and substantially bigger than him. 61The second issue raised by the appellant was that the police did not test the handle of the axe for DNA or fingerprints to confirm or remove any doubt about whether either Messrs Williams or Russell had held the axe. The appellant submitted that had the DNA of either of them been found on the axe handle, it would have confirmed his version of events and almost certainly resulted in his acquittal. He submitted that the police officer's explanation as to why such testing did not take place was unconvincing, i.e. he did not think that it was relevant to test the axe handle for DNA. The appellant submitted that this created an element of unfairness which he was not able to overcome. 62The appellant submitted that on the whole of the evidence, his version of events was not challenged. It could have been confirmed had the handle of the axe been tested for the DNA of Messrs Williams and Russell. He submitted that his evidence as to duress was consistent with the evidence of his mother and Mrs Gavrilidis as to the trashing of his car and as to the threats made against him and his mother. He submitted that on that evidence, not only was it not open to the jury to be satisfied beyond reasonable doubt that he was guilty, but that this Court could not be so satisfied. 63This ground of appeal, of course, relates only to count 5. To that extent, the evidence of the appellant's mother and Mrs Gavrilidis is relevant, but not directly applicable. 64The submission relating to the "failure" of the police to test the handle of the axe for DNA is not made out. In his ERISP, the appellant provided the following responses. "Q.323 All right. So the three of them have gone in ... A. Yeah. Q. ... to the factory, is that what you call it? A. Yeah. The factory. Q.324 And what did you do? A. I pretty much just stood there in shock. Q.325. Yep. A. I was just in shock and then um before I know it, they're out the fire door and -- Q.326 How did they get out of the fire door? A. They must have been using the axe. Q.327 All right. A. 'Cos they were banging up against the fire door, then within no time the fire door was, they were coming through the fire door, and running bikes out at us. And they're just yelling at us "put them on the trailer, put them on the trailer"." 65It follows from that evidence, that if the DNA of either Mr Williams or Mr Russell had been found on the handle of the axe, it was not necessarily consistent with the axe being used to threaten the appellant. It was equally consistent with the axe being used to gain access to the Husqvana premises. Such evidence, even if it had been available, would have been far from decisive. 66The question of the believability of Messrs Russell and Williams was fundamentally a jury question. In his closing address, the Crown prosecutor set out a number of matters on which he relied to negative the claim for duress. (a) That the appellant's version of events was wholly unbelievable. (b) That the appellant had previously lent his father's car (without his knowledge) to Messrs Russell and Williams on a number of prior occasions. (c) That when the appellant refused to lend the car, on 15 July 2009 they came and trashed his car but notwithstanding that, he agreed to help them out on 15 September 2009. (d) That they let him pick up Mr Raman on the way to the commission of the offence. (e) That they offered to give him $1,500 for the use of his father's vehicle to tow another when he had always let them borrow it for nothing. (f) That they allowed or required him to come along. (g) That the presence of the axe in the car was fortuitous, including its return to its original position at the back of the vehicle. 67In my opinion, it was well open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty and having made my own independent assessment of the evidence, I am satisfied as to the guilt of the appellant in respect of count 5 (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [20]). This ground of appeal should be dismissed. Ground 3 - The trial miscarried by reason of the prejudice occasioned by the Crown prosecutor for both counts 4 and 5. 68The appellant listed a number of examples of conduct by the Crown prosecutor which he said gave rise to irreparable prejudice and as a result caused the trial to miscarry. For ease of reference, I have used the same numbering as that used by the appellant. 69(1) The appellant was cross-examined as to his employment record to the effect that he had ceased work in mid July 2009 as a result of his successful criminality. The appellant submitted that there was no factual basis for this cross-examination and consequently unknown prejudice was caused to him. 70The relevant cross-examination was at T.417: "CROWN PROSECUTOR: Is it just fortuitous that towards the middle or end of July you throw your job in?" The question was objected to and allowed. The purpose of the question was to suggest that as a result of at least one of the successful robberies in June and August 2009, the appellant had voluntarily given up work. 71Apart from the fact that the line of cross-examination is relatively weak, the question was not objectionable. More importantly, the question related to counts 1, 2 and 3 in respect of which the appellant was acquitted. In those circumstances, it is difficult for the appellant to maintain a complaint that "unknown prejudice" was caused. 72(2) In the course of cross-examining the appellant's mother, by reference to what had occurred in an earlier trial, the Crown prosecutor at T.495.35 put the following question: "Q. Likewise you were asked no questions by the Crown prosecutor or Mr Rickard for your son about the issue whether your son was at home on the -- COUNSEL: Your Honour I object to this. HIS HONOUR: Wait a minute, what's this going to? COUNSEL: The fact that she's never given this evidence before. HIS HONOUR: Look, the Crown didn't ask it on the last time, it's bad luck. CROWN PROSECUTOR: Yes I agree with that, but she was cross-examined by Mr Rickard who then raised the issue. COUNSEL: Your Honour I object to this interchange going on in front of the jury. HIS HONOUR: No Mr Crown." 73On the basis of that disallowed question, the appellant submitted that the Crown prosecutor was attempting to cross-examine his mother about his previous counsel not asking her any questions about alibi, the suggestion being that her evidence as to the appellant's alibi was a recent invention. The appellant submitted that it was on the basis of this question that the jury subsequently requested a transcript of the evidence given at the previous trial. (A request which was refused.) The appellant submitted that the asking of this question violated his right to a fair trial. 74This submission is not made out. The question was so obscure as to be meaningless. The jury did not know that the previous trial had been aborted because of a late alibi notice served by the defence. This disallowed question certainly did not alert them to that fact. The jury were well aware that there had been a previous trial which had not proceeded to completion. This had been led by defence counsel from the appellant's own witnesses. The disallowed question could not have had any influence on the fairness or outcome of the trial. 75(3) The appellant identified a number of submissions made by the Crown prosecutor in his closing address, which he said cumulatively were so damaging as to prevent him having a fair trial. (a) In relation to the appellant's character, and the fact that he had no previous convictions, the Crown prosecutor said: "I will just say this to you, people such as Ned Kelly or Jack the Ripper at a time had no prior convictions and anyone in our community is likely to be able to have people come along here and say nice things about them." The appellant complained that this was a scandalous submission which attempted to belittle him. 76It is true that the submission was foolish and unnecessarily flamboyant. It was, however, so exaggerated as to be of little effect. Moreover, his Honour specifically directed the jury to disregard the submission in the course of his summing up. I am confident that this submission, either on its own or in combination with others, had no effect on the jury's deliberations. (b) The appellant submitted that the Crown was not entitled to challenge the appellant's two character witnesses, i.e. a security guard who said that it was out of character for the appellant to have driven while suspended and to lie to the police and his girlfriend, who gave evidence as to his honesty when seeing him pick up a lady's purse beside a car and hand it to her. 77The submissions made by the Crown were available. The character evidence from those two witnesses was limited and susceptible to the challenge which was made. In any event, his Honour gave the conventional direction to the jury concerning character evidence. There was no basis to assume that the jury did not heed that instruction. (c) The appellant submitted that it was not open to the Crown prosecutor to submit that his evidence as to duress was improbable, in the absence of positive evidence to that effect. 78This submission is misconceived. Apart from the fact that the Crown did call Messrs Williams and Russell to rebut the duress defence, it was open to the Crown prosecutor to highlight inconsistencies in the appellant's evidence as to duress, and to argue as to its improbability. (d) The appellant submitted that the Crown prosecutor had belittled and ridiculed his case by stating on a number of occasions how "unlucky" it was that the appellant had found himself in such unfortunate circumstances. 79This submission is based on the following submission: "Then you know he must be the unluckiest person in the world if he didn't commit this offence because he's got his mobile phone and there's photographs on it and what are the photographs of. Probably most importantly of the Husaberg and other bikes. And in the Husaberg photo you've got the KTM in the middle but he's just happened to go down the road and this person that also happens to be on his memory that he's close enough to go down he just happened to take a photo of his new bike. How unlucky is that?" (Address p 7.35) 80An initial problem for the appellant is that this submission was directed at count 3 which involved the theft of the Husaberg bike. This was a count on which the jury entered a verdict of acquittal. It is clear, therefore, that this submission had no prejudicial effect. 81In any event, it was a submission which could properly be made by the Crown prosecutor. In Gonzales v Regina [2007] NSWCCA 321; 178 A Crim R 232 the Court in respect of a similar submission said: "120 The passage in the address to the jury about bringing bad luck on himself was something of a flourish, but I do not accept that it or attributing to the appellant that he was an unlucky man invited the jury to engage in impermissible reasoning. Similarly, in my view the cross-examination concerned with coincidence, of which this passage may have reminded the jury, was not, and reading the material as a whole was not presented as, a choice between guilt and bad luck. Fact finding can include consideration of coincidence in events, and of the likelihood that a number of independent indicators that a fact did or did not occur are all incorrect, and there was no objection to the cross-examination of which the appellant complained by his counsel at the time. The Crown Prosecutor was entitled to be robust, in the public interest, and by the cross-examination was laying a foundation for permissible reasoning by the jury. I do not accept that the trial was made unfair. This ground fails." (e) The appellant submitted that the Crown prosecutor had misrepresented the evidence relating to the size of helmets stolen from Sutto's in the robbery which formed the basis of count 3. He submitted that the submission invited the jury to speculate about how the appellant had obtained the helmet which he had sold to Cash Converters. 82As with submission 3(d), the difficulty for the appellant is that the theft of the helmets was part of the subject matter of count 3. The jury had entered a verdict of acquittal in relation to that count. Accordingly, the appellant has failed to make out any prejudice arising from that submission. (f) The appellant submitted that it was not open to the Crown prosecutor to make submissions based on the inherent improbability of his evidence that he was not immediately scared of the axe being held behind him for a short period of time. The appellant submitted such a submission could not be made in the absence of positive evidence to that effect. 83This submission is misconceived. The Crown was entitled, in order to negative duress, to make submissions which arose properly on the evidence that was given at trial. The appellant was cross-examined as to the improbability of his evidence. It was a matter for the jury to assess the value of the submissions made to them but it was not improper or inappropriate for the Crown prosecutor to make the submission which he did. (g) The appellant submitted that it was not open to the Crown prosecutor to make a submission directed to the improbability of his evidence that he made his father's car available to Messrs Williams and Russell when they were apparently persons who were capable of and did steal motor vehicles. 84This submission is not made out. It was open to the Crown prosecutor to make submissions, based on the inherent improbability of evidence given by a witness. (h) The appellant submitted that it was not open to the Crown prosecutor to make submissions concerning his demeanour when participating in the ERISP, in particular the movement of his eyes. 85This submission is not made out. It was open to the Crown prosecutor to make submissions concerning the appellant's demeanour, both during the trial and when participating in the ERISP. (i) The appellant submitted that it was not open to the Crown prosecutor to be critical of his late identification to the police of Messrs Russell and Williams, after the conclusion of the ERISP. The appellant submitted that this involved error of the kind identified by the Court in McKey v R [2012] NSWCCA 1, which should have been remedied by further directions by the trial judge. 86This submission is misconceived. The Crown prosecutor was doing no more than drawing attention to the fact that the appellant had given what he subsequently claimed to have been a false version of events in the ERISP and that even the subsequent identification of Messrs Russell and Williams took the matter nowhere. The observations of the Court in McKey v R have no application to what was said by the Crown prosecutor. In McKey the submission was to the effect that the reactions and conduct of the accused indicated a consciousness of guilt. That was a submission which was not open on the evidence and needed to be corrected by the trial judge. Such a circumstance did not arise here. (j) The appellant submitted that the Crown prosecutor had made an inappropriate comment in relation to the conduct of defence counsel. The appellant submitted that this had the effect of belittling defence counsel in the eyes of the jury and reducing the effect of her submissions. 87It was properly conceded by the Crown that it was inappropriate for the Crown prosecutor to comment on defence counsel's treatment of this issue. Significantly, defence counsel objected to the comment immediately and no doubt the jury would have taken note of the objection which was upheld. 88That having been said, the point made by the Crown prosecutor was relevant and appropriate. He was entitled to identify those parts of the appellant's evidence which were internally inconsistent and improbable, as part of the Crown's attempt to negative the duress defence. 89The appellant's basal submission that, although these criticisms of the submissions of the Crown prosecutor might not individually have caused irremedial prejudice to his case, but cumulatively did so, has not been made out. Those marked (1), (3)(b), (c), (e), (f), (g), (h) and (i) raised issues in respect of which objection was not taken at trial and consequently are affected by rule 4. A number of these submissions concerned counts 1 - 3 in relation to which verdicts of acquittal were entered, so that it is difficult to see how any prejudice was suffered by the appellant. 90Finally, except for the comparatively minor issues raised in (3)(a) and (j), the challenges to the Crown prosecutor's submissions have not been made out. The matters made out whilst "regrettable" do not "warrant interference" by this Court with the appellants' convictions (Whitehorn v R [1983] HCA 42; 152 CLR 657 at 664). 91This ground of appeal should be dismissed. Conclusion 92The orders which I propose are as follows: (1) Leave to appeal be refused in respect of ground of appeal 1. (2) Grounds of appeal 2 and 3 be dismissed. (3) The hearing of the application for leave to appeal against sentence is stood over to the Registrar's next call over. 93DAVIES J: I agree with Hoeben JA. 94CAMPBELL J: I agree with Hoeben JA. ********** 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. Decision last updated: 14 December 2012