Aslett v R - [2006] NSWCCA 49

No judgment structure available for this case.

CITATION: Dudley Mark Aslett v Regina [2006] NSWCCA 49

HEARING DATE(S): 20 February 2006

JUDGMENT DATE:
24 March 2006

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Howie J at 147

DECISION: 1. The appeal against conviction is dismissed 2. The application for leave to appeal against the sentences is granted, the appeal is allowed and, other than the sentence on the eighth count, the sentences are quashed 3. The following sentences be and are imposed in lieu of those quashed - Count 1: a non-parole period of eight years commencing on 22 August 2003 and expiring on 21 August 2011 and a balance of term of two years and eight months; Count 2: a non-parole period of sixteen years commencing on 22 August 2008 and expiring on 21 August 2024 and a balance of term of five years and four months; Counts 3 and 4: on each count a non-parole period of fifteen years commencing on 22 August 2009 and expiring on 21 August 2024 and a balance of term of five years; Counts 5, 6, and 7: on each count a non-parole period of nine years and six months commencing on 22 August 2017 and expiring on 21 February 2026 and a balance of term of seven years and six months commencing on 22 February 2026 and expiring on 21 August 2033.

CATCHWORDS: Criminal law - breaking entering and committing the serious indictable offence of robbery in circumstances of special aggravation - sexual intercourse without consent in company with deprivation of liberty - inciting complainant of sixteen years of age to commit an act of indecency - Criminal law - evidence of accomplice - whether direction to jury adequate - whether trial judge obliged to direct jury that evidence uncorroborated - Criminal law - Crown opening - in opening to jury Crown Prosecutor mistakenly misstated the effect of witness’ evidence - whether trial judge ought to have discharged jury - whether miscarriage of justice - Criminal law - whether evidence identifying appellant wrongly admitted - Criminal law - obligation of counsel objecting to admission of evidence to identify legal basis of objection and evidence relevant to that basis - Criminal law - whether prior inconsistent statements of Crown witness wrongly admitted - Criminal law - irrelevant evidence wrongly admitted - whether proviso should apply - Criminal law - remarks of Crown Prosecutor - whether miscarriage of justice - Criminal law - whether verdicts unreasonable and inconsistent with evidence - Criminal law - sentencing - whether sentencing judge erred in treating elements of offences as aggravating criminality - whether judge erred in finding circumstances aggravating criminality - Criminal law - sentencing - whether sentences increased beyond what was proportionate to criminality to extend period of protection of society from offender’s recidivism - Criminal law - sentencing - whether sentences manifestly excessive

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Baskerville [1910] 2 KB 658
Chen & Ors v R (2002) 130 A Crim R 130
The Queen v Johnson (1979) 22 SASR 161
Gilbert v The Queen (2000) 201 CLR 414
Adam v The Queen (2001) 207 CLR 96
Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Lee v The Queen (1998) 195 CLR 594
Weiss v The Queen [2005] HCA 81
R v Street [2005] NSWCCA 139
R v Wickham [2004] NSWCCA 193
R v Blair [2005] NSWCCA 78
Veen v The Queen (No 2) (1998) 164 CLR 465
Markarian v The Queen (2005) 215 ALR 213
R v Wheeler [2000] NSWCCA 34

PARTIES: Dudley Mark Aslett, Regina

FILE NUMBER(S): CCA 2005/1712

COUNSEL: D Arnott SC
J Stratton SC

SOLICITORS: S Kavanagh
Brenda Duchen

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0071

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

CCA 2005/1712

SPIGELMAN CJ
BARR J
HOWIE J
24 MARCH 2006

DUDLEY MARK ASLETT v REGINA

Judgment

1 SPIGELMAN CJ: I agree with Barr J and the additional observations of Howie J.

2 BARR J: The appellant, Dudley Mark Aslett, appeals against convictions and seeks leave to appeal against sentences entered in the District Court. Following a trial by jury, the appellant was found guilty of offences that may be summarised a follows -

1. On 17 July 2003 in a certain suburb of Sydney he broke and entered a certain dwelling house and committed therein the serious indictable offence of robbery in circumstances of aggravation, namely being in the company of Steven Aslett, Jamie Aslett and Christopher Bonham and in circumstances of special aggravation, namely wounding one of the complainants, whom I shall refer to as SA;

2, 3, 4, 5, 6 and 7. At the same time and place he had sexual intercourse with SA without her consent while in the company of the same persons and for a period afterwards deprived her of her liberty;

8 At the same time and place, while in the company of the same persons, he incited SA, who was sixteen years of age, to commit an act of indecency upon herself.

3 Mr and Mrs A lived in a first floor home unit. Their daughter, SA, lived with them. On 17 July 2003, when SA was sixteen years and a few days old, four men broke into the unit. They did so by climbing onto a balcony and opening an unlocked sliding door. Mr A had come home at about midnight after finishing work and had fallen asleep on a lounge chair. They woke him and threatened him with a knife. They forced him to the floor and thrust him up, tying his hands and feet together behind his back. They told him that if he made a noise he would be stabbed or killed. Two of them went to the main bedroom. SA was seated at her desk working on a computer and her mother, Mrs A, was lying on the bed. The first man to enter told SA to be quiet and not to make a noise. The second began stealing things from the desk and putting them into a bag. Both men were armed with knives. They ordered Mrs A and SA to go into the lounge. They made them lie face down on the floor there. While the three members of the family were lying on the floor the offenders ransacked the unit, removing items and placing them in a pile on the lounge floor. They took money, mobile telephones, jewellery, electrical items, CDs and DVDs. During the robbery the offenders continually demanded money and asked for Mr A’s pay. Mr and Mrs A asked them to take anything they wanted but not to hurt any member of the family. They were told that if they looked up they would be killed. The robbers found a safe in the wardrobe in the main bedroom. One pointed a knife at Mrs A and told her to open the safe. When she did so two of the offenders removed items from it.

4 At a later time in the robbery the ringleader, Mrs A and SA were in the bedroom. The ringleader asked SA how old she was and she told him. The ringleader ordered Mrs A to leave the room. He announced to the company that he was going to make a further search of the room. He closed the door. He made SA pull down her underwear and placed a sharp object, which she thought was a knife, against her cheek. He said that he would poke out her eyes if she looked. He required her to manipulate her vagina with her fingers. She complied. That act was the basis of the eighth count. He took down his pants and put on a condom. He forced his penis into her vagina. It hurt and she begged him to stop. She began bleeding but he persisted and overpowered her. As she continued to protest he asked whether she might prefer him to do those things to her mother. He asked whether she was a virgin and she said that she was. Throughout the whole of these acts the leader’s face was covered. When he had finished with SA he left the room. Christopher Bonham was a member of the group. He entered the room, required SA to remove her underwear and lie face down on the floor. He put a knife on the floor near her face. He had penile vaginal intercourse with her. That act was the basis of the third count. She asked him to stop because, she said, the other man had already done that to her and it was really hurting. He forced his penis into her anus. That was the basis of the fourth count. Bonham left semen on the floor. After he had left the room the third member of the group, Steven Aslett, entered. He sat on the toilet in the adjoining bathroom and forced his penis into SA’s mouth. He held her head and forced it backwards and forwards. That was the fifth count. He forced his penis into her vagina and then a second time into her mouth. They were the sixth and the seventh counts. She continually asked him to stop and he said that he would do so when she started enjoying it. SA said that she was going to vomit and Aslett told her that he would stab her if she did so. She spat semen into the sink and Aslett ordered her to brush her teeth.

5 SA was permitted to return to her parents in the lounge but warned not to tell them anything. She had to lie next to them on the floor. As ordered, she told them that she was all right. She was directed to go to the bathroom and Steven Aslett followed. He made her take a shower and as she did so forced liquid soap into her vagina. He ordered her to brush her teeth again. He threw her underpants into the washing machine and turned it on. When SA had finished showering he forced her to dress without drying herself. She returned to the lounge as ordered and they tied her hands and feet behind her back. They tied her to her parents. Steven Aslett sat on a chair holding a knife against SA’s leg, telling her that she was not to say anything. In the meantime the robbery was completed.

6 After the robbers left the unit Mr A managed to untie his hands and so to free himself, his wife and SA. The telephone was out of action because the invaders had cut the cord and used it to tie up the family. Mr A went to a neighbour’s unit and put through a call to the emergency service. That was recorded at 2:44am, a little under three hours after the attack began.

7 SA was treated at Westmead Children’s Hospital. She required suturing of her wounds under general anaesthetic. The principal wound was a three centimetre tear extending into the muscle between the posterior fourchette and the perineum. The anus was lacerated. SA was in too much pain for an anal swab to be taken.

8 Investigating police officers detected finger and palm prints on the railing of the balcony by which the robbers had entered the unit and on an air vent below it. Swabs of semen were taken from SA’s jumper and jacket and from the floor of the ensuite bathroom where she had been attacked. Swabs were taken from the air vent. As a result, finger or palm prints were found which matched those of Steven Aslett and Jamie Aslett. DNA recovered from the swabs matched that of Steven Aslett, Jamie Aslett and Bonham.

9 The evidence showed that the robbers generally kept their faces covered during the attack. Although Mr and Mrs A and SA were shown photographs including photographs of the appellant and the other accused they did not identify any as being of any of the attackers. Mr A picked out a photograph of Jamie Aslett and a photograph of another person as being “very similar” to the youngest of the attackers.

10 It was common ground that Steven and Jamie Aslett and Bonham took part in the robbery, led by an older man. There was no dispute that the appellant was the uncle of Steven and Jamie Aslett.

11 It was the Crown case that the appellant was the ringleader and the first to have sexual intercourse with SA.

12 Steven and Jamie Aslett were arrested on 25 July 2003 and a search was carried out at the house where they were then living. On DVDs identified as having been stolen in the robbery fingerprints were found which matched their fingerprints.

13 Bonham’s mother, Mrs Joan Bonham, was at home on the night of 16 and 17 July 2003. Her daughter Tara had been going out with Jamie Aslett for some time and she knew him. She also knew Steven Aslett. On the night of 16 July Steven and Jamie Aslett went to her house with another person. She only caught a glimpse of the other person. Bonham was at a neighbour’s house and somebody went to get him. The visitors stayed at the back of her house and at one stage she heard Jamie Aslett refer to the third person as “Uncle Dud”. When she learned on 25 July that Steven and Jamie Aslett had been arrested she became concerned that her son might also have been involved in the offence. She asked him and he eventually admitted that he had taken part. Mrs Bonham and her husband proposed to take their son to the police station but he resisted, so Mrs Bonham rang the emergency number. Bonham broke free of Mrs Bonham’s husband and ran away. By the time the police attended he had disappeared.

14 Goods stolen in the robbery were found at Bonham’s premises.

15 Bonham was arrested at a caravan park in Lismore on 20 August 2003. He was interviewed by the police and admitted taking part in the robbery but denied having sexually assaulted SA. He said that the leader of the group was the uncle of Steven and Jamie Aslett. His name was Dudley. When asked what Dudley looked like he said -

He’s Aboriginal, bald hair, sort of like, sort, I think he had a goatee of somethin, I don’t know, sort of.

16 He said that Dudley was about thirty years old, maybe twenty-eight, twenty, he did not know. He had seen him once before. By his description of the events he made clear that Dudley was the leader and that Dudley and Steven Aslett had had sexual intercourse with SA. He denied that he or Jamie Aslett had had sexual intercourse with her.

17 Right at the end of the interview police informed Bonham that preliminary tests made by the Department of Analytical Laboratories indicated that his semen was located in the bathroom of the unit. He was asked whether he could explain that and said that he could not. He gave an answer the clear meaning of which was that the test results were unreliable. The interview ended.

18 Within a short time afterwards, Bonham told the police that he wished to say more about the matter. A further interview was had. Like the first, it was electronically recorded. He said that he had intercourse with SA after “the uncle”. He said that he had anal intercourse with her against her will. He did not have vaginal intercourse with her because she was bleeding.

19 Bonham decided to plead guilty. He also indicated that he would give evidence against his co-offenders. Accordingly, investigating police officers visited him on 26 September 2003 and invited him to read transcripts of the interviews he had given on 20 August and confirm that they correctly recorded what had been said. He signed a statement to that effect.

20 However, Bonham changed his mind. Although he maintained his plea of guilty he withdrew his offer to give evidence against the others. That was his position when the appellant was committed for trial. Giving evidence on his own sentence, Bonham would not say who his companions were.

21 Bonham was called to give evidence at the appellant’s trial. He said that he, Steven and Jamie Aslett had taken part in the robbery but that the appellant had not and that in that respect at least the interviews made at Lismore did not correctly record the facts. The Crown was granted leave to cross-examine Bonham and in the course of doing so tendered the two Lismore transcripts and the transcript of the interview in which Bonham had told the police that the Lismore transcripts correctly recorded what had been said. Audiotape recordings of the Lismore interviews were received into evidence as well. (Attempts to videotape the interviews were unsuccessful because the equipment did not work properly). So it came about that the principal pieces of evidence identifying the appellant as a participant in the robbery and the sexual attacks on SA were what Bonham had told the police at Lismore. Against them the jury had to put any weight they might give to Bonham’s subsequent denials. There was evidence supporting the truth of the Lismore accounts but it is convenient to defer consideration of it.

The conviction appeal

Ground 1: his Honour erred in not giving a s165 direction in relation to the witness Christopher Bonham

22 If Bonham was telling the truth when he told the police at Lismore that the leader of the group was the uncle of Steven and Jamie Aslett and was called Dud or Dudley, he and that person were accomplices. At the trial defence counsel asked for a direction under s165, Evidence Act. It was therefore appropriate for his Honour to give such a direction.

23 The trial judge, Finnane QC, DCJ prepared written directions of law, which included these passages -

Christopher Bonham

Without the evidence of Christopher Bonham, the Crown could not establish a case against the accused that he was in the flat at the relevant time, was the leader of the group and was the first person to sexually assault the complainant.

However, the evidence of Christopher Bonham on which the Crown relies is not the evidence he gave in court, but the evidence contained in two interviews given by him on 20th August 2003. which were signed by him on 26th September 2003 as being correct and as being the evidence he was prepared to give at a trial against the accused.

The Crown case is that those statements, while not completely true, (since he falsely claimed in the first statement that he did not have sexual intercourse with the complainant and in the second one, he falsely denied having vaginal intercourse with her) are nevertheless supported by the oral evidence of the

and by the fingerprint and DNA evidence, so that what is said and the detail of it is strikingly similar to this evidence.

You are entitled to have regard to the evidence of the two statements as being evidence, which goes to establish the facts of the case against the accused. Indeed, without these statements there would be no case against him, since there is no other evidence to show that he was at the flat of the

at the time of the home invasion.

However, I must warn you that you should treat these statements with considerable caution. They are statements made by an accomplice to these crimes. He is a confessed rapist and burglar, who has pleaded guilty and has been sentenced. There is evidence that he received a discount on his sentence because of his promise to give assistance to the police. He was thus someone who stood to gain from nominating the others involved in the crimes.

Furthermore, it seems quite clear that he has told lies in this court and before another Judge of this court about his involvement in these matters. He also, in this court, claims that what he told the police about the involvement of the accused was a lie.

Experience teaches that innocent people are from time to time convicted on the evidence of proved liars and you must consider anxiously a number of questions.

1. Are the statements or any of them, which he made in the two interviews, supported by any other credible evidence, which is independent of him?

2. Is there any truth in the evidence he gave in this court that the statements he made in those interviews implicating Dudley Aslett was false?

3. Do the lies he told in this court cause you to have doubts about the truth of what he said in the two interviews about Dudley Asllet?

4. Are you left in doubt as to whether or not you should accept as true what he said in the statements about Dudley Aslett?

5. Even if you accept that many of the statements he made in the two interviews are true, because other evidence supports them as true, can you be certain beyond reasonable doubt that what he says about Dudley Aslett is true, since there is no other evidence at all which shows Dudley Aslett was at the flat at this time?

You are entitled to convict the accused if, having taken into account my warnings, you are satisfied beyond reasonable doubt that you should accept as true what he says in those two interviews concerning Dudley Aslett.

However, you are also entitled to reject his evidence as being that of a liar and an accomplice. If you did, you would find the accused not guilty.

I must emphasise again that the Crown must prove its case beyond a reasonable doubt. Even if you consider that there are some things about Mr Bonham’s evidence which cause you to think that the accused may have been at the flat or which raise in your minds some suspicion about him, that is not enough to convict him. You are entitled to convict him only if the evidence satisfies you beyond reasonable doubt. If it does not, then you must find him not guilty on all charges.

24 During the summing-up his Honour said this -

Lastly, we have the matter of Christopher Bonham. Without his evidence the Crown cannot possibly convict the accused, and I will state that as a proposition of law, not just as a question of fact, because unless somebody can say Mr Dudley Aslett was in the flat there is no other evidence that establishes he was in the flat.

There may be evidence that establishes a sort of suspicion in your minds about maybe he was there, such as there is evidence to show that he went to the Bonham house that night. There is evidence to show – this is not disputed evidence, but there is evidence to show that he drove away in his car with Bonham and the two Asletts. There is evidence to show he indeed is their uncle. That is the uncle of the Asletts. As a matter of birth records he is the biological uncle.

There is that evidence, and there is evidence that later on that night, two of the Asletts and Bonham were three of the four men who committed the offences in this flat. But without evidence establishing that Mr Dudley Aslett was the fourth man in the flat that evidence would not be enough to convict him of anything. It would merely be evidence that he was with them at one point and that they went and did something and there was another man with them when they did it. So the Crown case hinges on Christopher Bonham.

This is a very unusual case because the Crown case does not in any way rely on the evidence Christopher Bonham gave in court. Now that is a very unusual thing. You may remember at the beginning of the case I told you that you would be assessing the witnesses as they came to the witness box, you would see what you thought of them, whether they told the truth all the time, or part of the time, and that indeed is what you did with all the other witnesses.

25 His Honour reviewed the evidence about what Bonham had said from time to time and the arguments put by both sides and continued -

The Crown case is he has given all this evidence about all these other events in these two documents, and they are pretty accurate. There are some differences, of course. The Crown says he also nominated the fourth man as being Dudley Aslett. Mr Stratton says well he was a liar when he made the statements, and he has taken you through various bits of evidence to show that. He was a liar when he gave evidence in this Court. He claims to have told lies at his own sentencing proceeding so you could not place any belief in him.

26 His Honour went onto deal with an assertion made at one time by Bonham, since disowned, that he feared the consequences of giving evidence in accordance with the Lismore versions and told the jury that they should consider the competing submissions. His Honour continued, referring to the written directions -

I have set out in this document all sorts of matters that you should consider and I have set out five particular matters on page seven. “Are the statements or any of them which he made in the two interviews supported by any other credible evidence which is independent of him?” On the Crown case clearly that is so. Mr Stratton does not substantially dispute that. “Is there any truth in the evidence he gave in this Court that the statements he made in those interviews implicating Dudley Aslett was false? Do the lies he told in this Court cause you to have doubts about the truth of what he said in the two interviews about Dudley Aslett? Are you left in any doubt as to whether or not you should accept as true what he said in the statements about Dudley Aslett? Even if you accept that many of the statements he made in the two interviews are true, because other evidence supports them, can you be certain beyond reasonable doubt that what he says about Dudley Aslett is true since there is no other evidence at all which shows that Dudley Aslett was in this flat at this time? Now they are matters you should take into account. Can I suggest to you that you listen very carefully, again I suggest this to you, to the tape recordings of those interviews.

27 His Honour continued to review the inconsistent things that Bonham had said from time to time and the arguments based upon that fact. He reminded the jury that Bonham had agreed that he was a liar, particularly to every suggestion to that effect put to him by defence counsel. His Honour reminded the jury of the Crown submission that Bonham was trying to help the appellant. His Honour continued -

You may be convinced that that does show something. You are entitled to convict clearly on his evidence. He is an accomplice, as has been pointed out. He is a liar, and if he did not commit perjury before Judge Solomon in the sentencing proceedings then he committed perjury here. If he told the truth before Judge Solomon, that he had been threatened, and then in this Court he says that what he said there was false, well he is telling lies here. So somewhere or other he had told lies in a court, and generally speaking it is difficult to accept, without considerable caution, the evidence of someone who tells lies in a court, or lies anywhere.

28 His Honour completed his review of the arguments and directed the jury in strong terms that they must, before convicting the appellant, be satisfied beyond reasonable doubt that he was there.

29 At the conclusion of the summing-up defence counsel asked for a number of further directions. There was this debate -

STRATTON: Your Honour, I would ask your Honour to give these four further directions. Firstly I would ask that your Honour direct the jury that Bonham’s nomination of the accused as the fourth man is not corroborated or supported by any other evidence.

HIS HONOUR: I have already said that. I have already said a number of times that not one other person supports him in that. This is the one matter in which he has no support. I see no reason to again say it. Anyway I will listen to what --

STRATTON: Your Honour told the jury that Bonham’s evidence was corroborated by the victims. My submission is that their evidence doesn’t corroborate him because they don’t support him on the crucial issue. In any event, your Honour has heard the application.

HIS HONOUR: Yes.

STRATTON: The second matter is I would ask your Honour to direct the jury that Bonham’s accounts in his two records of interview may be unreliable, which in my submission is the other part. Your Honour has told them to treat what he said with caution, but my submission is that the direction under section 165 involves your Honour telling the jury that his accounts may be unreliable.

Thirdly, I would ask your Honour to direct the jury that when assessing what Bonham said in the records of interview they should take into account that he told many proved lies in those records of interview.

The fourth matter, I would ask your Honour to withdraw the statement that your Honour made to the jury that Bonham agreed to every suggestion made by me.

HIS HONOUR: I said that was the submission made by Crown counsel. I didn’t say I agree with it.

30 His Honour refused the applications but shortly afterwards reconsidered the fourth matter raised and decided to say something more about it. In giving further directions his Honour said this to the jury -

The other things I should say is, just in passing, I put to you that there had been big attacks on Mr Bonham as being a liar. It must follow it is an attack on his reliability. Is he a reliable witness, or is he a liar? When you are looking at reliability you can take into account the extent to which any of his evidence is supported by other evidence. When you look at the question of lies and you look at the question of reliability you look at all the evidence really. If you came to the view that he was an unreliable witness then I would have to warn you against placing any confidence at all on anything that he said, if you form the view that he is unreliable. But before you come to that view you must look at all the evidence.

31 It was submitted in this Court that since the concept of corroboration had been introduced it was incumbent on his Honour to give these directions -

1. That it would be dangerous to convict the appellant upon the uncorroborated evidence of the accomplice Bonham;

2. The nature of corroboration, and in particular that corroboration is evidence independent of the accomplice tending to establish both that the crime was committed and that the accused committed the crime; and

3. That there was no evidence that corroborated the evidence of the witness Bonham.

32 Counsel cited R v Baskerville [1910] 2 KB 658 to demonstrate that at common law the evidence of an accomplice is not corroborated unless there is evidence both that the offence was committed and that the accused committed it. Counsel relied on a passage in the judgment of this Court in Chen & Ors v R (2002) 130 A Crim R 130 at para [58] dealing with the duty of the trial judge in summing-up to a jury where the Crown relies on the uncorroborated evidence of an accomplice to draw attention to the absence of corroboration and to warn of the danger of convicting on the uncorroborated evidence of an accomplice.

33 However, these cases do not assist the appellant because there was evidence independent of Bonham that supported the truth of the accounts he had given in Lismore. Such evidence may be circumstantial: R v Baskerville at 667. The supporting evidence was given by Mrs Bonham, who said that on the night of the invasion Steven and Jamie Aslett and Bonham were in the company of a man called Uncle Dud, and Tara Bonham, who said that about a week before the arrest of her boyfriend Steven Aslett she went to her house in the company of Steven and Jamie Aslett and the accused. Bonham was at a neighbour’s house and someone went to fetch him.

34 His Honour was correct in refusing to tell the jury that there was no evidence to support the accounts Bonham had given at Lismore. There was no need for his Honour, therefore, to enter upon the subject of the dangerousness of convicting an accused person on the uncorroborated evidence of an accomplice. It is not surprising that counsel did not ask for such a direction.

35 Relevantly, s165 is in the following terms -

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

36 In the written directions and the passages of the summing-up extracted above his Honour told the jury that they should treat the Lismore accounts with considerable caution because Bonham was an accomplice who received a discount from his sentence and stood to gain from nominating others. His Honour did not say in terms that for that reason Bonham’s evidence “may be unreliable”, but s165 did not require the use of those words: subs(4). The question for this Court is whether the jury would have understood that his Honour was telling them that because of the matters I have summarised Bonham’s evidence might be unreliable and that that was why they should treat it with considerable caution.

37 It seems to me that the whole of the directions, given as they were in the context of a summary of the competing cases in which the Crown promoted the reliability of Bonham’s Lismore accounts and defence counsel attacked the whole of his evidence as that of a liar and therefore unreliable, that the jury would have understood that his Honour was warning them about the need for caution because in the circumstances to which attention was drawn Bonham’s evidence might indeed be unreliable. In my opinion his Honour’s directions complied with the requirements of s165.

38 This ground of appeal has not been made good.

Ground 2: his Honour erred in not discharging the jury after the Crown opened to the jury about a matter which was not supported by the evidence

39 Understandably, the Crown Prosecutor was concerned to draw attention to any evidence independent of Bonham’s accounts which would support his assertions that the appellant was present. When the Crown opened the case to the jury he had a statement made by Miss Tara Bonham that included this passage -

Dudley and Jamie were talking but I’m not sure what they were talking about because it was like three weeks ago. While they were talking I was looking around the car and I saw this gold ring on the floor behind the passenger seat. After a while Dudley got out of the car and, I said ‘Oh, I just found this on the floor. Do you know whose it is?’ He said ‘No just keep it’.

40 If Miss Bonham meant literally what she said in her statement it appeared that the appellant was exercising dominion over the ring, which may be taken to be one of the items stolen in the robbery, and that would be evidence that he was concerned in the robbery. Accordingly, the Crown Prosecutor opened the case to the jury in these terms -

In relation to Dudley Aslett part of the evidence against him will be that the following day he

the girlfriend of Jamie Aslett who was, Tara Bonham who is Christopher Bonham’s sister went over to the Aslett’s car in the backyard with Jamie in the car with Dudley Aslett. She got into the back of the car, which was Dudley’s Holden Commodore. In the back rear part of the seats behind the rear passenger seat she found a ring. She spoke to Dudley and he said she could keep it; she could have it. She subsequently handed that ring to police and police identified it as belonging to

SA. In other words, taken during the home invasion.

41 Later in the trial Miss Bonham gave evidence on the voir dire and, apparently for the first time, indicated that it was not the appellant but Jamie Aslett who had told her that she could keep the ring. He did so, she said, while they were seated in a car. The appellant was not in the car.

42 His Honour upheld the objection of defence counsel and excluded the evidence of the conversation. That precipitated an application by defence counsel for a discharge of the jury, based upon what the Crown Prosecutor had said in opening the case to the jury. His Honour declined to do so.

43 According to the evidence of Constable Cross, a gold ring, Exhibit C21, was recovered at the Bonham residence on 6 August 2003. There was no evidence of exactly how it had got there. After they retired the jury sent a note asking for clarification as to where the gold ring had been found. They asked for a copy of the transcript of the evidence of Constable Cross. His Honour informed the jury that the ring had been recovered at the Bonham residence and that they should not speculate who discovered it or when or where.

44 It was submitted on appeal that, since this was the only question the jury asked about any of the many exhibits of stolen goods, they must have done so because of the Crown’s reference in his opening speech to a conversation about a stolen ring. It was submitted that the opening caused the trial to miscarry, because it included an important assertion affecting the appellant of which there was never any evidence. So his Honour erred in refusing to discharge the jury when asked to do so. It was implied in the submissions that his Honour ought to have reconsidered his refusal after reading the jury question and realising the importance the jury were putting on the recovery of the ring at the Bonham residence. It was submitted that in all the circumstances there was a miscarriage of justice. Counsel relied in this Court on observations made in the Supreme Court of South Australia in The Queen v Johnson (1979) 22 SASR 161 at 181-182 to the effect that in an application to discharge a jury on such a ground it is not for the trial judge to decide what part of an opening the members of a jury are likely to have remembered and what part they have forgotten.

45 I do not accept that the jury asked their question because of anything the Crown said in opening. The Crown Prosecutor opened the case on 2 September 2004. The Crown did not labour the point. What was said was recorded in twelve lines of transcript. Of course, there was no mention in the evidence that followed about anything said to Tara Bonham about keeping any ring. The jury retired on 16 September 2004 and it was on that day that they asked their question. On 14 September, late in the Crown case and only two days before the question was asked, Constable Cross gave evidence about the only two stolen items recovered at the Bonham household. He was cross-examined about one of them, a mobile phone battery, but not about the other, the ring.

46 It seems to me, because of the timing of events and the treatment of the evidence, that it is far more likely that the jury asked their question in order to clarify exactly what had been recovered at the Bonham household. I think that there is no reason to suppose that the jury had in mind anything Miss Tara Bonham might have been told about any ring, of which there had been no evidence.

47 When he entertained the application to discharge the jury his Honour referred to the potentially serious consequence of the Crown’s having opened on a topic and then having adduced no evidence about it. His Honour also knew that he would give directions that the jury must return their verdicts only on the evidence given at trial and that they must not speculate about matters about which there had been no evidence. His Honour was entitled to proceed upon a confident expectation that the jury would obey the directions given to them: Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at para [31] and that, in view of his Honour’s directions, the jury would not, in the absence of evidence, have acted on anything the Crown had said in its opening address.

48 In my opinion his Honour was justified in refusing the application for a discharge. I do not find the reasoning of the Supreme Court of South Australia in The Queen v Johnson persuasive. The statement relied on was no doubt justified in the circumstances of that appeal, but it cannot be elevated to a statement of principle applicable in every trial without regard to the circumstances of that trial.

49 In view of the same matters his Honour would have been justified in refusing a second application for a discharge if such an application had been made after the receipt of the jury question. As it was, no application was made, and that is some indication that the matter was not viewed as seriously at trial as was put to this Court.

50 In written and oral submissions in this Court, counsel sought to extend this ground of appeal by asserting in effect that his Honour failed to do whatever was necessary to avoid a miscarriage of justice. It was put that his Honour’s response to the jury question “did nothing to contradict the Crown’s assertion in the opening address that the appellant had given the ring to Tara Bonham, who later gave it to police” and left open the possibility that although the ring was recovered at the Bonham residence it might have got there because Miss Tara Bonham found it in the car and because the appellant had allowed her to keep it.

51 This attempt to extend the ground invites a somewhat different response. Counsel’s obligations did not cease when his Honour refused to discharge the jury. If defence counsel considered, at any time after it had become clear that Miss Bonham would not give the anticipated evidence, that there was a risk that the jury might not put out of their minds what the Crown Prosecutor had said, there were a number of constructive things that he could have done. He could have cross-examined Miss Bonham herself to demonstrate that the words mistakenly attributed to the appellant had been said by Jamie Aslett in the absence of the appellant. Alternatively, counsel could have asked his Honour to inform the jury or to require the Crown Prosecutor to inform the jury that the Crown had misunderstood and misstated the position and that there was no substance in what he had said. If counsel had asked for that to be done it would surely have been done.

52 Sometimes, after things are said to a jury which ought not to have been said, counsel needs to exercise nice judgment in deciding whether to ask the trial judge to say anything about the matter. Sometimes a direction to ignore the matter may, by repeating it, do more harm than good. But this was not such a case. Counsel could have had no justifiable reason for not seeing that any risk was removed. Insofar as this ground of appeal seeks to add an assertion that a miscarriage of justice resulted from the way his Honour left the matter to the jury, the leave of this Court is necessary. I would refuse leave.

53 This ground of appeal has not been made good.

Ground 3: his Honour erred in admitting the evidence of the witness Christopher Bonham’s identification of the accused

54 The first of the Lismore interviews between Bonham and the police included this passage -

Q 36 I think you also said earlier, in an earlier answer, Uncle came to ---

A Their uncle.

Q37 O.K. What’s their uncle’s name?

A Dudley.

Q38 What’s his surname?

A I don’t know, might be the same as my mates.

Q39 O.K. What does Dudley look like?

A He’s Aboriginal, bald hair, sort of like, sort, I think he had a goatee or somethin’, I dunno, sort of.

Q40 How old is Dudley?

A He’s about 30, 30 something, maybe 28, 20, I dunno.

Q 41 Have you ever seen Dudley before?

A I seen him once.

Q 42 Where was that?

A At a mate’s house, at Steven’s house, Steven and Jamie’s house.

Q43 What did Steven and Jamie call him?

A Uncle.

55 Briefly, the sequence of events was as follows. The events giving rise to the charges happened on 17 July 2003. On 25 July Steven and Jamie Aslett were arrested and Bonham admitted to his mother and father that he had been involved. He ran away. On 20 August he was arrested and interviewed and made admissions against his own interest. He gave an account which, if accepted, identified the appellant as the leader. On 26 September he was indicating his preparedness to give evidence against the appellant. At some later time that has not been precisely identified he changed his mind. The first time he was called to give evidence in the case against the appellant he refused to take the oath. On the next occasion when he went to court, being the committal hearing for Jamie Aslett, he took no objection to being sworn. He said that he had taken part in a home invasion and a sexual assault with three other people but that he did not know who they were.

56 On 1 September 2004, immediately before the commencement of the appellant’s trial, defence counsel took objection to the foreshadowed tender by the Crown of the audiotapes and transcripts of the Lismore interviews and expressed the desire to cross-examine Bonham in the absence of the jury. There was this debate on 1 September -

HIS HONOUR: What particular legal provision will you be relying on?

STRATTON: Well there’s a – in my submission your Honour this is an usual case for this reason. The evidence, and I’ll take your Honour to it, but I won’t have time to do it immediately.

HIS HONOUR: No, no.

STRATTON: The evidence from Bonham himself has consistently been that in effect this man, the accused is a stranger to him. But indeed in the very first version he gives, to which I’ll take your Honour, he says that he’s only ever met this man once before, doesn’t know his surname.

HIS HONOUR: Yeah.

STRATTON: There has never been any species of photographic identification by Bonham of this man.

HIS HONOUR: Yeah.

STRATTON: So we both have an account which is unreliable for a number of reasons.

HIS HONOUR: I don’t know. Why would that be unreliable if he hasn’t met him before? Is that true or not?

STRATTON: Because what the Crown is asking the jury to do is to accept a prior inconsistent account of this version which in effect will amount to an in court identification.

HIS HONOUR: Maybe. But supposing all that’s done – I appreciate there are all sorts of problems with evidence of this type, there always is, there always is a problem with it --

STRATTON: Yes.

HIS HONOUR: -- are you asking me to exclude it under section 137 or --

STRATTON: I suppose in the alternative --

HIS HONOUR: -- find its probative value is exceeded by its prejudicial effect and then exclude it or --

STRATTON: Perhaps taking it step by step your Honour. I anticipate that if – one way or another, it’s likely that your Honour will grant the Crown leave to deal with Mr Bonham as an unfavourable witness. But in that event, in my submission, I would ask your Honour either to not permit cross-examination on the prior inconsistent statement, or to limit the use which the jury can make of it under section 136.

57 The debate continued and counsel drew his Honour’s attention to Bonham’s description of the leader, particularly to the passage that I have extracted above. The debate continued at length and counsel touched upon s114 Evidence Act and submitted that it was not a question of weight but that visual identification evidence was not admissible unless there had been an identification parade or it would not have been reasonable to have held such a parade. The debate was adjourned pending receipt of evidence on the voir dire from certain witnesses including Bonham.

58 During cross-examination by defence counsel in the absence of the jury Bonham agreed that in the Lismore interview he had falsely nominated Dudley Aslett as being the fourth man in the home invasion. Later on he was to say the same thing in the presence of the jury. He was not asked whether he had been asked by the police to attend an identification parade or to select a photograph from any photographs shown to him so as to try to identify the leader of the invasion. He was not asked when he had first indicated his intention not to give evidence in accordance with the Lismore interviews.

59 The investigating detectives, Inspector Yeomans and Detective Senior Constable Barber were available generally to give evidence at the trial and both gave evidence before the jury. Inspector Yeomans gave evidence on the voir dire. Neither was ever asked whether Bonham was asked to attend an identification parade, whether the appellant was asked to attend an identification parade, or whether Bonham was asked to try to identify the leader by reference to photographs. Neither was asked about the development of police intelligence about the matter, and it never became clear precisely when the investigating police came to believe that Bonham would give evidence against his co-offenders and when they realised that he had changed his mind.

60 These would have been important questions because of the inquiry that an objection under s114 Evidence Act necessarily raises. The section is in these terms -

(1) In this section:

“ visual identification evidence ” means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.

(2) Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made, or

(b) it would not have been reasonable to have held such a parade, or

(c) the defendant refused to take part in such a parade,
and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned, and

(b) the importance of the evidence, and

(c) the practicality of holding an identification parade having regard, among other things:

(i) if the defendant failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure, and

(ii) in any case—to whether the identification was made at or about the time of the commission of the offence, and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.

(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.

(5) If:

(a) the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held, and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present,

it is presumed that it would not have been reasonable to have held an identification parade at that time.

(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

61 After evidence had been taken the debate on the objection to the receipt of evidence about the Lismore interviews continued at length. There appears to have been no further reference to s114 Evidence Act. That is not surprising in view of the fact that counsel had adduced no evidence at all whether there had been identification by Bonham by photograph or identification parade or, if that was not the case, why nothing had been done about the matter. No question had been asked about when the police first believed that Bonham would give evidence in accordance with his interviews and when and in what circumstances they ceased to have that belief. Defence counsel merely announced during the course of his submissions that there had been no identification parade.

62 His Honour must, I think, have received the impression that counsel was not concerned about s114 at all. When the debate was resumed on 6 September defence counsel raised objections under ss43, 65, 66, 137 and 192 Evidence Act. There was a long debate about the applicability of section 43. There was a long debate about section 66. Then counsel moved to deal with individual questions or groups of questions which were said for reasons peculiar to themselves to be inadmissible or a vehicle for particular prejudice. Sections 135, 136, 137 and 192 Evidence Act were discussed. Notably, there was no reference during any part of that long debate to the questions which I have extracted above. In the circumstances it comes as no surprise that in the long and careful judgment that his Honour delivered no reference was made to s114 Evidence Act. His Honour fully dealt with the principles and issues arising under the other sections that I have mentioned.

63 A possible reason why defence counsel did not adduce evidence relevant to the questions raised under s114 or make any submissions about reasonableness was that he was not asserting that Bonham had genuinely tried to identify the leader, with the result that his evidence raised well-understood problems of accuracy and reliability, but because he was asserting that the nomination of the man “Uncle Dudley” was, as Bonham readily agreed in cross-examination, a deliberately false assertion that the appellant was involved.

64 At the close of the Crown case defence counsel invited his Honour to withdraw from the jury the evidence of identification incorporated in the evidence of the Lismore interviews, but made no reference to legal principle other than in referring to the submissions he had made earlier in the trial and in submitting that, as the trial had turned out, the probative value of the evidence was weak. The application relied principally, I think, upon an assertion that the probative value of the evidence was outweighed by the unfair prejudice it brought to the appellant. Although the evidence was called “identification evidence” there was no reference in terms to s114. In my opinion the fact that that application was made adds nothing to the matters this Court should consider under this ground.

65 It seems to me that notwithstanding that section 114 was formally raised, defence counsel never pursued the matter in any appropriate way at trial. That leaves this Court in some difficulty, because before it could decide whether Bonham’s evidence identifying the appellant was admissible it would have to consider the questions raised by subs(2), namely whether an identification parade was held, whether, if it was not, it would not have been reasonable to do so or whether the appellant refused to take part in such a parade. It seems quite clear that at all times after he changed his mind, Bonham would by no means have given any assistance to the investigating police officers. Directly relevant to the question of reasonableness would be how much time the police had in which to arrange an identification parade, beginning when they first believed that Bonham would assist and ending when they realised that he would not. The evidence is silent about that.

66 Ordinarily when counsel objects to the tender of evidence, any law affecting its admissibility may be relied upon, even if not raised in terms. So long as objection is clearly taken it does not matter if one ground is advanced at trial and a different one on appeal. This case seems to me to be somewhat different, however, because the failure of counsel to follow through the consequences of the objection left his Honour without the evidence he had to have in order to make proper and informed judgment under subs(2). This Court is in no better position. I think that this is really a matter to which rule 4 applies and that leave to argue this ground of appeal should be refused.

Ground 4: his Honour erred in admitting the prior inconsistent statements of the witness Christopher Bonham

67 The hearsay rule is set forth in s59 Evidence Act. Relevantly, the section is as follows -

59 The hearsay rule—exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

68 Section 66 is as follows -

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(a) that person, or

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

69 Audiotapes and transcripts of Bonham’s two Lismore interviews and the statement he signed on 26 September were admitted into evidence over the objection of defence counsel. It was submitted on appeal that the statement of 26 September was made to indicate the evidence that Bonham would be able to give, so s66(3) applied. When Bonham signed that statement he also signed each page of the transcripts of the interviews held on 20 August. The result, it was submitted, was that those transcripts also became indicators of the evidence Bonham would be able to give. So subs(3) applied to them as well. Because of subs(3), subs(2) did not apply and the evidence was caught by the hearsay rule and inadmissible.

70 The Crown’s response at trial and in this Court was that, whatever the effect, if any, of subs(3) and subs(2) on the evidence, it was independently admissible under ss38, 103 and 60 Evidence Act. Those sections are as follows. I shall include s102 for completeness.

38 Unfavourable witnesses

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.

Note.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

102 The credibility rule

Evidence that is relevant only to a witness’s credibility is not admissible.

Notes.

1 Specific exceptions to the credibility rule are as follows:

• evidence adduced in cross-examination (sections 103 and 104)

• evidence in rebuttal of denials (section 106)

• evidence to re-establish credibility (section 108)

• character of accused persons (section 110).

Other provisions of this Act, or of other laws, may operate as further exceptions.

2 Section 108A makes provision as to the admission of evidence that is relevant only to the credibility of a person who has made a previous representation.

103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

60 Exception: evidence relevant for a non-hearsay purpose

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

71 The circumstances were similar to those that arose in Adam v The Queen (2001) 207 CLR 96. A witness, having knowledge of the events giving rise to the charges and probably concerned in them, made a statement that assisted the prosecution. At trial it was apparent that he was unwilling to assist the Crown by giving evidence in accordance with the statement. The Crown obtained leave under s38 to cross-examine him. His statement was tendered on the question of his credit and was admitted by virtue of s103. The effect of s60 was to make the contents of the prior statement available to prove the truth of the assertions in it. See generally the judgment of the majority of the Justices of the High Court of Australia at 105 -109.

72 The trial judge held the evidence admissible on that basis. In my opinion his Honour was correct. Section 66 is one of a group of sections dealing with circumstances in which hearsay evidence may become admissible as an exception to the hearsay rule. In its context and by its terms the section does not purport to concern itself with all the circumstances in which the Act makes hearsay evidence admissible notwithstanding s59. Nothing in s66 or in the Part in which it lies, Part 3.2, purports to limit the effect of ss38, 103 or 60.

73 Counsel for the appellant also relied on s43 Evidence Act, which is in the following terms -

(a) complete particulars of the statement have been given to the witness, or

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and

(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.

74 It was submitted that the effect of subs(2) was that evidence of Bonham’s prior inconsistent statements made at Lismore became admissible only if Bonham did not admit making them. He did admit making them. They were therefore inadmissible.

75 Section 43 lies in Chapter 2 of the Act, which is concerned with adducing evidence. The sections dealing with the hearsay rule and its exceptions fall within Chapter 3, which is concerned with the admissibility of evidence. Section 43(2) is not intended to cover every instance of reliance on a prior inconsistent statement of a witness or to deal in general terms with its admissibility. The purpose of the section is to ensure that if a party intends to adduce evidence of a prior inconsistent statement “otherwise than from the witness” that the witness refuses to acknowledge, that party may only do so after drawing to the witness’ attention the circumstances of the statement so that the witness can identify it and the inconsistency the cross-examiner is asserting. The purpose is to ensure that such a witness has a proper opportunity to consider precisely what he or she is asserted to have said and precisely how that is asserted to be inconsistent with what the witness now says. Subs(2) is in its terms limited to the things that must happen when a witness does not admit having made an inconsistent statement. It says nothing about what may or must or must not happen in other circumstances, for example, where the witness admits having made a prior inconsistent statement.

76 Subs(2) draws on pre-Evidence Act 1995 law about the use of prior inconsistent statements. Before the commencement of the present Evidence Act such statements, when admissible, were relevant only to the credit to the witness who made them. If their making was admitted, therefore, there was no purpose in tendering them: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498. Under the modern law, on the other hand, there is a purpose in tendering such statements beyond any attack on credibility, namely proof of the facts asserted: s60. Nothing in s43 is directed to the admissibility of any prior inconsistent statement to prove the truth of its assertions. All subs(2) does is ensure that a witness who is about to be attacked on credit is fairly dealt with. Nothing in s43 purports to limit the effect of ss38, 103 or 60.

77 This ground of appeal has not been made good.

Ground 5: his Honour erred in admitting Exhibits C37 and C38, a tape of a 000 call made by Mrs Joanne Bonham and a transcript of that call

78 The telephone call which Mrs Bonham made to the emergency services was recorded. A transcript of the conversation was admitted over the objection of defence counsel. It contained this passage -

000 OPERATOR: What’s going on there ma’am?

MRS BONHAM: About the rape, we just found out our son did it. The rape --

000 OPERATOR: What rape? What rape?

MRS BONHAM: Those two boys. The two, 17 and 18 year old, our son’s involved too. 42 Moonshine Avenue. Our son’s here, he’s going to run.

79 It was submitted that his Honour erred in admitting the evidence of what Mrs Bonham said because her report of what Bonham told her about his part was second-hand hearsay and inadmissible: Lee v The Queen (1998) 195 CLR 594. Alternatively, it was submitted, the tape had no probative value and was prejudicial to the appellant because of its highly emotional content.

80 By the time this objection was taken, Bonham had given evidence in course of which he had admitted that he was guilty and that he had told his mother so. Defence counsel informed the trial judge that he would not object to Mrs Bonham saying that she had heard Bonham admit committing the rape.

81 Counsel for the appellant did not invite this Court to listen to the audiotape. According to counsel’s written submissions it contained much shouting and screaming that apparently went on as Bonham struggled with his father. I proceed on an acceptance of that assertion. I assume that the tape demonstrated that Bonham’s parents reacted in a highly emotional way to what Bonham had told them and to the prospect of his imminent flight.

82 His Honour gave judgment admitting the audiotape into evidence not to prove the truth of Bonham’s assertion that he had committed the rape but in order to prove that he had made his confession. That, it was said, was relevant to explain why Mrs Bonham acted as she did.

83 Although his Honour listened to the tape no submission was made at trial that the evidence would unfairly prejudice the appellant. There was no mention of s137 Evidence Act. Not surprisingly, his Honour’s judgment contained no consideration of prejudice and s137 was not mentioned.

84 It seems to me that it was not relevant for the Crown to prove that Mrs Bonham had told the emergency services operator that Bonham had confessed to her or to put before the jury any recording to prove that she had made that report. The fact that the report was made was incapable to my mind of rationally affecting directly or indirectly the assessment of the probability of the existence of any fact in issue at the trial. The evidence did not pass the test in s55 of the Evidence Act and was therefore inadmissible: s56.

85 It was submitted by the Crown that even if this Court held that the evidence was wrongly admitted it should dismiss the appeal because there was no substantial miscarriage of justice. I shall defer consideration of that submission.

Ground 6: the trial miscarried as a result of improper remarks made by the Crown Prosecutor

86 According to the appellant’s written submissions, during the examination in chief by the Crown Prosecutor of an ambulance officer, Miss Parker, there was this exchange -

Q And he told you something about what had occurred?

A Yes.

Q He told you that there had been a home invasion…

87 At that stage an objection was taken and the Crown said in the presence of the jury -

According to you the accused was not even there.

88 During cross-examination these things were said -

STRATTON: Q Miss Parker, do you have a copy of the paperwork with you?

A Yes.

STRATTON: I make a call for it under the Evidence Act.

CROWN PROSECUTOR: I’m happy to produce it. I’m happy to tender it, if need be, but of course it’s conversation between

and the other ambulance officer which my friend may well have objected to.

HIS HONOUR: He is entitled to have a look at it.

CROWN PROSECUTOR: Of course he is.

STRATTON: Your Honour, I haven’t seen it.

HIS HONOUR: I think it should be given to counsel. I don’t think it needs a running commentary about its contents.

89 At the next adjournment defence counsel applied for a discharge of the jury. His Honour refused the application.

90 Something should be said about the first of these extracts. According to the transcript, what was said was as follows and not as recorded in the appellant’s written submissions, extracted above -

Q And he told you something about what had occurred?

A Yes.

Q He told you there had been a home invasion --

OBJECTION

CROWN PROSECUTOR: What was that?

HIS HONOUR: It’s objected to I think.

STRATTON: Second-hand hearsay.

CROWN PROSECUTOR: Obviously. But if there’s no dispute – Anyway, I’ll move on.

Q You had a conversation with the police officer?

A Yes.

Q He told you, without going into it, what he had learned had happened?

A Yes.

91 If the transcript did not correctly record what was said it was counsel’s responsibility, if he wished to rely on a different version, to draw the matter to his Honour’s attention and have a correction made. No such thing appears to have been done. In my opinion this Court should deal with the matter as recorded in the official transcript. There appears to be no legitimate cause for complaint about the first passage.

92 As to the second, the remark appears to have been unnecessary but, in the context of the trial, trivial. It was submitted in this Court that it would have given the jury the impression that the appellant was trying to keep information from the jury as well as improperly putting before the jury the contents of a document. Plainly, nothing the Crown Prosecutor said put before the jury the contents of the document that was being called for. His Honour was right in refusing to discharge the jury.

93 This ground of appeal was faintly argued. A better course would have been to abandon it.

Ground 7: the jury’s verdicts were unreasonable and inconsistent with the evidence

94 There was sufficient in Bonham’s Lismore interviews to prove that the appellant took part in the attack. Given the general understanding that the appellant’s name was Dudley and that he was referred to as Dud and was the uncle of Steven and Jamie Aslett, Bonham’s description in the interviews was enough to prove that the appellant played the part asserted by the Crown. There was no evidence independent of Bonham’s account that could prove beyond reasonable doubt that the appellant was one of the attackers.

95 It was not submitted on behalf of the appellant that evidence of Bonham’s account could not convict the appellant if accepted beyond reasonable doubt as reliable. The submission was that it could not be accepted beyond reasonable doubt as a truthful account. That was because Bonham was an admitted liar, unworthy of belief. So the jury ought to have had a reasonable doubt about accepting his prior inconsistent statements as the truth.

96 This is a catalogue of the events concerning Bonham and his reported accounts of them -

17 July 2003 Bonham committed the offences.

21 July 2003 Charged by his mother, Bonham admitted taking part in the offence and committing rape. He immediately ran away.

20 August 2003 Bonham was arrested in Lismore and took part in two interviews. In the first he identified the appellant, Steven and Jamie Aslett and himself as the attackers and said that the appellant and Steven Aslett spent time in the bedroom with the complainant, presumably raping her. He said that neither he nor Jamie Aslett raped the complainant. At the conclusion of the interview he was told that DNA matching his had been identified. After the interview was over he asked to be interviewed a second time and told the police that he, too, had raped the complainant.

26 September 2003 Investigating police visited Bonham at Silverwater, where he was being held in custody. He must have indicated an intention to plead guilty and to give evidence against others. He signed the statement of that day the effect of which was to indicate that he was prepared to give evidence in accordance with the transcripts of the two interviews, which he then acknowledged by signing.

At appellant’s Bonham refused to take the oath.

At Jamie Aslett’s Bonham gave evidence but refused to say

committal who his companions were.

Bonham’s sentence Bonham told the sentencing judge that he had changed his attitude towards cooperation because he would get killed if he told a court who had been involved. He said that he had “heard from somebody from the appellant”.

97 Nobody tells lies all the time. The jury had to consider why Bonham changed his story from time to time and whether there was a reasonable possibility that any account after 26 September, denying the presence of the appellant, was true. Bonham’s denial of the rape in the first account is understandable. It is common for offenders who make early admission of guilt informally to persons close to them later to make formal denial to investigating police officers. The change which took place between the first and second of the Lismore interviews is explained by what Bonham was told about DNA and his realisation that he had been found out. His refusal to take the oath at the appellant’s committal is consistent with the truth of the Lismore accounts and a fear of the appellant. The conclusion that he was in fear of the appellant is supported by what he later told his sentencing judge. His later denial of any fear of the appellant was consistent with the false denials of the appellant’s presence. Bonham’s reasons, lately advanced, for deliberately and untruthfully involving the appellant – namely, that the police officers bashed him and wanted him to name the appellant – must have been unimpressive. The interviews were audiorecorded and the jury would be able to decide for themselves whether Bonham sounded as though he had been bashed and whether he was giving his answers out of fear of the police. The idea that investigating police officers who desired the cooperation of an offender in giving evidence against a co-offender should begin by beating the offender was likely to be seen by the jury as highly improbable.

98 The second thing that may be said about the accounts given at Lismore is that Bonham’s description of what happened and how and of the order of things was consistent with what was known about such matters from the accounts given by the complainants and from the evidence of police fingerprint experts and from DNA and medical experts. The contrary was not submitted. It seems to me that the jury were entitled to accept that Bonham was trying, at least by the commencement of the second Lismore interview, to give a truthful account of events. The jury were entitled to ask themselves why, if Bonham was prepared to name his friends Steven and Jamie Aslett as co-offenders, he would lie so as falsely to implicate the appellant, whom he did not know well.

99 The jury were not bound to be troubled by the description of Uncle Dudley as “bald” in the passage I have extracted. The passage which follows shortly afterwards in which Bonham finds difficulty in saying how old Uncle Dud was – the appellant was in fact thirty-two years of age at the time – was capable of showing that the difficulty arose not from any desire on Bonham’s part to depart from the truth but from the difficulty he had expressing himself in readily understandable language. That difficulty appears throughout the transcript of the interviews.

100 In this latter connection, it is important for this Court to acknowledge the superior position the jury were in, having seen and heard Bonham give evidence and being in a position to compare his demeanour in court with the way he sounded during the Lismore interviews. An important submission made by the Crown Prosecutor in his closing address, and reviewed by his Honour in the summing-up, was that Bonham was over-eager to agree with anything put to him by defence counsel which assisted the appellant and asserted the falsity of his nomination of the appellant as one of the offenders.

101 Finally, there was substantial support for Bonham’s nomination of the appellant. Mr and Mrs A said that the man was considerably older than the three companions. In fact the appellant was in his early thirties and Bonham and the other Asletts were in their early twenties or teens.

102 Bonham said at trial that the appellant, with the other two Asletts, had picked him up from his house in the appellant’s car on the evening of the offence. Mrs Joan Bonham said that on the night of the offence her son Bonham, Steven and Jamie Aslett and “another person” were at the back of her house. The evidence showed that there was a sleep-out there. At one stage she heard Jamie Aslett refer to the other person as “Uncle Dud”.

103 Miss Tara Bonham said that in mid 2003 she had seen the appellant at the Aslett residence and had heard both Steven and Jamie Aslett refer to him as “Uncle Dud”.

104 Miss Bonham said that one night in July 2003 the appellant, with Jamie and Steven Aslett, drove her from the Aslett home to her home. That was at around the time of the offences. On the next day she had gone to the Aslett residence and had seen the appellant and Jamie Aslett sitting in the appellant’s car.

105 The appellant drove a VL Commodore. During Bonham’s first Lismore interview he told the police that the man he then called Uncle Dudley drove a VL Commodore, greenish or bluish and that he was the person that was instructing everybody else what to do and where to go.

106 In my view the jury were entitled accept as truthful Bonham’s nomination of the appellant as the leader of the attackers. They were entitled to be satisfied that his retractions were false, arising out of a fear of the appellant and a desire to avoid doing anything he might think likely to attract retribution from the appellant.

107 The question for the Court is whether it thinks that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty. I have considered the evidence and for the reasons which I have explained I conclude that the jury were entitled to regard Bonham’s nomination of the appellant as truthful and reliable. That being so, they were entitled to be satisfied beyond reasonable doubt that the appellant was the older man who led the other three in the attack. This ground of appeal has not been made good.

The proviso

108 After setting out the circumstances in which this Court shall allow an appeal, s6(1) Criminal Appeal Act continues -

provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

109 The Crown submitted that even if his Honour had erred in admitting the tape recording of Mrs Bonham’s conversation with the emergency services officer the Court ought to apply the proviso and dismiss the appeal. The duty of the Court is therefore to make an independent assessment of the whole of the evidence and determine whether, after allowing for the natural limitation of an appellate court that proceeds upon the record, the appellant was proved beyond reasonable doubt to be guilty of the offences. Weiss v The Queen [2005] HCA 81 at [41].

110 I have assessed all the evidence for myself and have taken into account the natural limitations inherent in my reliance on the record. There could be no doubt that four attackers committed the offences charged. The principal issue was whether the appellant was present, leading the other attackers. The central and simple practical question that arose was whether any of Bonham’s accounts after his Lismore interviews, denying the presence of the appellant, might reasonably possibly have been true, thereby raising a reasonable doubt about the guilt of the appellant. I have summarised earlier in this judgment the principal pieces of evidence going to that question.

111 In my opinion no substantial miscarriage of justice actually occurred. In my view it was not reasonably open to accept Bonham’s later versions exculpating the appellant. They were obviously solely the product of his fear of retribution. I am of the view that the appellant was proved beyond reasonable doubt to be guilty of the offences.

112 As the Justices of the High Court of Australia said in Weiss v The Queen at [43] there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have no significance in determining the verdict that was returned by the jury. In my opinion this was such a case. The content of the tape recording, both as to the words spoken and as to the noise of the background commotion, went only to what Bonham had done. It said nothing about the appellant or any part he had played. The evidence was therefore tangential to the central issues about the participation of the appellant, which I have summarised above.

113 Notwithstanding that I would decide the fifth ground of appeal in favour of the appellant, I would dismiss the appeal.

The application for leave to appeal against sentence

114 The first count was laid under s112(3) Crimes Act and attracted a maximum sentence of twenty-five years. Counts 2, 3, 4, 5, 6, and 7 were laid under s61JA of the same Act and attracted the maximum sentence of imprisonment for life. The eighth count attracted a maximum sentence of three years’ imprisonment.

115 His Honour sentenced the appellant as follows -

Count 1: a non-parole period of ten years commencing on 22 August 2003 and expiring on 21 August 2013 and a balance of term of three years and four months;

Count 2: a non-parole period of twenty years commencing on 22 August 2003 and expiring on 21 August 2023 and a balance of term of six years and eight months;

Counts 3 and 4: a non-parole period of fifteen years commencing on 22 August 2010 and expiring on 21 August 2025 and a balance of term of five years;

Counts 5, 6 and 7: a non-parole period of eight years commencing on 22 August 2025 and expiring on 21 August 2033 and a balance of term of ten years;

Count 8: a fixed term of two years commencing on 22 August 2003.

116 The total effective sentence was of forty years with a non-parole period of thirty years.

117 The appellant was thirty-two years old when he committed the offences and thirty-four years old when sentenced. His Honour dealt with his personal circumstances in these words -

The offender is a man of Aboriginal heritage. He is the youngest son of Mrs Rita Hill and grew up in the Granville/Mt Druitt areas of Sydney. His mother is a worker in a hospital, his father’s a truck driver. His mother gave evidence on his behalf. The evidence shows that from the age of ten years he was an inmate of an institution and later a gaol. According to his mother he has had one Christmas and one birthday out of gaol or institution in the years since he was ten years old. The longest period he had out of gaol was ten months. She said he had a drug problem but he did not want to go to a rehabilitation establishment for this, preferring to seek treatment direct from a doctor. He had not spoken to his mother about the current offences.

His criminal record makes for depressing reading. He first came before a children’s court when he was ten years old and was first put into custody when he was eleven years old. From this time until he was eighteen years old he was frequently arrested, charged and detained for offences of stealing, breaking, entering and stealing, stealing and driving motor vehicles without a licence and other related offences. As an adult his pattern of offending continued, although there were serious driving offences and assaults. In April 1995 he became involved in a robbery and associated charges of malicious wounding and malicious damage to property, and received a prison sentence of two and a half years custody.

Following this he got a further sentence for escaping from lawful custody, and further sentences for driving matters and drug possession matters. On 27 July 2000 he was imprisoned for the offence of robbery in company for five years with a non-parole period of two years and ordered to undertake drug rehabilitation on his release to parole. The sentence was to commence from 23 September 1999. On 8 August 2000 his parole was revoked and he served a further one year and three months as a consequence of this.

Since then he has been back before local courts for various offences of dishonesty and involving the use of illegal drugs, stealing motor vehicles, and the like. He received a series of concurrent six-month gaol sentences from 12 December 2001.

According to facts set out in a report of a psychologist, he has never worked out of gaol. He has apparently not had any long-term relationships with anyone apart from members of his family. He can read and write. According to the psychologist he attempted suicide in 1998 in gaol, requiring blood transfusions and hospitalisation. He also reported to the psychologist that he had been a long-term drug abuser, using marijuana, heroin and latterly, crystal methylamphetamine.

I treat these claims with some caution, since he gave no evidence, and there is only slight evidence from other sources to support them. There is some evidence from his criminal convictions that support his use of drugs in recent years, but nothing to support his claim of drug use as a teenager. He has been assessed as someone possessed of sound intelligence and to have a paranoid personality disorder. He is not mentally ill.

Ground 8: his Honour erred in treating as aggravating features the following factors:

(a) the appellant’s actual or threatened use of violence

(b) the appellant’s record of previous convictions

(c) the offences were motivated by hatred for, or prejudice against a group of people to which the offender believed the victim belonged

(d) the offences involved multiple victims; there were a series of criminal acts

118 In imposing sentence his Honour said this -

In determining sentence I am required to have regard to the provisions of s3 and 21A of the Crimes (Sentencing Procedure) Act and of the common law principles which underlie them. It is not necessary that I set out these provisions in this judgment. There are eight aggravating factors in these offences. There are no mitigating factors.

I set out these factors referring to the paragraphs of s21A(2) of the Crimes (Sentencing Procedure Act) 1999. (b) The offences involved the actual or threatened use of violence. (d) The offender has a record of previous convictions. (f) The offences involved gratuitous cruelty. The rapes of the complainant were savage. She and her parents were treated cruelly by the offender and his gang. (g) The injury, emotional harm, loss or damage caused by the offences were substantial. There is evidence of the physical harm suffered by the complainant. It is obvious enough she would also have suffered severe emotional harm. Additionally, she and her parents were physically injured by being tied up, and their property was damaged. They also incurred loss of valuable items, much of which, but not all of which, was subsequently returned. (h) The offences were motivated by hatred for, or prejudice against, a group of people to which the offender believed the victim belonged. According to Christopher Bonham the gang was told by the offender to look for Asians, apparently on the basis that they would have money and jewellery at their home. (j) The offences were committed while the offender was on conditional liberty in relation to an offence. (l) The victims were vulnerable, in that the complainant was very young, and both she and her parents were assaulted, tied up and terrorised in their own home. (m) The offences involved multiple victims; there were a series of criminal acts. (n) The offences were part of a planned or organised criminal activity.

119 It was submitted that an element of the first count was robbery, the taking of property by force or by threat of force. It was therefore not permissible for the sentencing court to take into account as aggravating the appellant’s criminality the fact that the offence involved the actual or threatened use of violence. It was submitted that his Honour failed to discriminate between the several offences in his references to aggravating features.

120 These submissions may be accepted. S21A(2) itself provides that the Court is not to have regard to any such feature if it is an element of the offence. Where a sentencing court refers in a general way to aggravating factors which are elements of some but not all the offences for which sentence is being imposed, and without explaining how, in any offence, criminality is thereby aggravated, that court falls into error: R v Street [2005] NSWCCA 139 per Wood CJ at CL at [32] – [34].

121 Subs 21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating feature mentioned in the section if it would be contrary to any act or rule of law to do so. It was submitted that his Honour’s reference as aggravating criminality to the appellant’s record of previous convictions was erroneous. At common law, an offender’s prior criminal history does not aggravate the offence but may deprive an offender of leniency or indicate that more weight should be given to retribution, deterrence or community protection: R v Wickham [2004] NSWCCA 193; R v Blair [2005] NSWCCA 78; Veen v The Queen(No 2) (1998) 164 CLR 465.

122 I accept those submissions.

123 The next submission was based upon his Honour’s finding under para 21A(2)(h). The para is as follows -

124 Bonham’s evidence was that he and his co-offenders were told to look for Asians, apparently on the basis that Asians tended to keep money and jewellery in their homes. Mr and Mrs A may be taken to fall within the description “Asians”. Whether persons of that description have the quality or tendency asserted by the appellant to Bonham is beside the point. The importance is that the offenders were at least in part motivated by a belief that because their intended victims were Asians they were more likely to have on their premises money and goods they would like to steal. It was submitted that that was quite a different motivation from crimes committed out of race hatred or prejudice. In my opinion that submission should be accepted. It seems to me that a better analysis is that the appellant approved the attack on Mr and Mrs A’s home not because he believed that Mr and Mrs A were Asian but because he believed that as Asians they fell into the category of people whose homes might contain valuables suitable for stealing. There was no evidence that the appellant hated Asians. There was no evidence that he was prejudiced against Asians.

125 It was submitted that his Honour erred also in taking into account that the offences involved multiple victims: s21A(2)(m). Clearly, there were multiple victims of the robbery. The same could not be said for any of the other offences for which sentence was being imposed, however, and as before, his Honour did not discriminate between the first count and the remaining counts.

126 I think that these submissions also should be accepted.

127 The Crown conceded that his Honour had erred in the ways contended for by the appellant but submitted that the errors were technical. I would not accept that submission, partly because of the number of errors pointed to and partly because of the length of the sentences imposed for the individual offences and the remarkably long effective sentence. In my opinion this ground of appeal has been made good and the Court should interfere.

Ground 9: his Honour erred in taking into account the sentence his Honour imposed in the matter of Regina v Bilal Skaf and others

128 Defence counsel tendered for the guidance of the court on sentence a schedule of sentences in other cases. The schedule did not contain reference to the matters of R v Bilal Skaf and others, in which his Honour had been the sentencing judge. Referring to the schedule and to that case his Honour said this during the remarks on sentence -

The sentences imposed for s61J offences as revealed in the table made available by Mr Stratton, do not contain the sentences imposed by me on the offenders Bilal Skaf, Mohamed Skaf, Bilal Haljid, Mohamed Garnam and others, involved in the gang rape trials over which I presided in 2001 and 2002. These sentences are the subject of appeal, but the Court of Criminal Appeal has not ruled on them, and I have no idea when the appeals might be heard, let alone when decisions might be given. In my opinion it is relevant to consider in the present case those sentences and the reasons I expressed for imposing them.

In broad terms I took the view that the ringleader, Bilal Skaf, should get a greater sentence for the offences committed by him than I imposed on his co-offenders because he was the ringleader and he organised the others to commit the offences they committed. I was also of the view that Skaf and each of the other offenders should get sentences for each group of offences committed by them and by the others with whom they were in company, which were partly cumulative on one another, so that it was clear that each additional set of crimes received its own extra punishment. I am of the opinion I was justified in taking this approach and I intend to take it in the present case as well.

129 It was submitted that although his Honour was entitled to take into account general sentencing patterns, which would include sentences imposed by his Honour, his Honour erred in taking into account sentences imposed in quite dissimilar cases. So the sentencing process miscarried.

130 Because of the view to which I have come in two of the remaining grounds of appeal I consider it unnecessary to deal with this ground.

Ground 10: his Honour erred in not correctly applying the principles in Veen v The Queen (No 2) (1987) 164 CLR 465

Ground 12: the sentences were individually and collectively manifestly excessive

131 It is convenient to deal with these grounds of appeal together.

132 A sentencing court should not increase a sentence beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: See Veen v The Queen(No2) (1987) 164 CLR 465. Mason CJ, Brennan, Dawson and Toohey JJ said this at 475 -

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

133 In sentencing the appellant his Honour said this -

He has no remorse for what he did. He has expressed no compassion for the plight of his victims. In my opinion he is a cold, callous, vicious and extremely dangerous criminal. The only way to protect society from him is to lock him away from society for many years. To take any other course would be to fail to protect society, and women especially.

He shows no contrition or remorse. He is a very clear danger to society, and to protect society he must be removed from it for many years. Hopefully by the time he is sixty-two, he might be able to change.

134 It was submitted that his Honour’s remarks on sentence and the length of the sentence imposed upon the appellant establish that his Honour was not simply taking the protection of society into account. Rather, his Honour was increasing the sentence beyond what was proportionate to the offences because of his expressed view that the appellant was a dangerous criminal.

135 The Crown submitted that his Honour’s remarks did not convey any intention to impose a sentence disproportionate to those under consideration to extend the period of protection of society. Reference was made to s3A(c) Crimes (Sentencing Procedure) Act 1999, which states as one of the purposes for which a court may impose a sentence on an offender the protection of the community from the offender. Having regard to the appellant’s criminal record, which contained a number of matters of violence, the leading role he played in the commission of these offences and the gravity of offences, a non-parole period of thirty years, while severe, was not outside the bounds of sound discretionary judgment.

136 The Crown referred to Markarian v The Queen (2005) 215 ALR 213 and the statement therein by the Justices of the High Court of Australia that it is not open to an appellate court to substitute its own opinion for that of a sentencing judge merely because it would have exercised its discretion differently. Reference was also made to the need, referred to by Sully J in R v Wheeler [2000] NSWCCA 34 for a sentencing court to accumulate sentences when an offender commits multiple rapes. It was submitted that while the sentences appeared high, the Court ought to respect the discretion of the sentencing judge and not interfere with the sentences.

137 I do not understand that in enacting s3A(c) Crimes (Sentencing Procedure) Act the Parliament had any intention of introducing a system of preventive detention contrary to the principles expressed by the High Court of Australia in Veen v The Queen (No2).

138 The appellant’s offences were very serious indeed. These findings of the sentencing judge have not been challenged. The appellant was the first to rape the complainant, holding a knife against her cheek and ordering her not to look or he would poke out her eyes. He encouraged the others to rape her knowing that she was bleeding and wounded and that they would make her wounds worse. Her injuries were severe. Her ordeal amounted to torture and extended over a few hours. The complainant suffered physical and lasting emotional harm. She was imprisoned, degraded and utterly humiliated. The offences fell into the worst category of cases.

139 The offences were committed while the applicant was on conditional liberty, serving the parole period for offences of robbery in company.

140 The offences of which the appellant was convicted attracted standard non-parole periods under the provisions of Division 1A of Part 4 Crimes (Sentencing Procedure) Act. The standard non-parole period under s61JA Crimes Act (counts 2, 3, 4, 5, 6 and 7) was fifteen years and for an offence under s112(3) Crimes Act (count 1) seven years.

141 His Honour found that the offences under s61JA were worse than those in the middle of the range and that he ought therefore to impose a non-parole period exceeding the standard non-parole period. In my opinion his Honour was entitled to come to that view. His Honour was also entitled to conclude that the offence under the first count merited a non-parole period exceeding the standard non-parole period.

142 I would not take his Honour’s remarks about the need to protect society from the appellant and to lock him away from society for many years or the repeated remark that the appellant was a clear danger to society and that to protect society he must be removed from it for many years, standing by themselves, as indicating an intention to impose any sentence longer than any individual offence warranted merely in order to protect society. However, when those remarks are seen in the light of the sentences which followed, it seems to me that his Honour fell into error.

143 His Honour had a most difficult task to perform in imposing sentence for these numerous and serious offences. Notwithstanding the need to recognise the commission of individual offences by appropriate accumulation there was an overriding need to impose a total effective sentence which reflected the totality of the appellant’s criminality. In my opinion the several errors which I have identified led his Honour to impose sentences which were effectively excessive. I think that the Court should intervene and re-sentence the appellant.

144 The one remaining ground of appeal complained that the appellant had a justifiable sense of grievance by comparing his sentences with those imposed upon his co-offenders. In the circumstances there is no need to deal with it.

145 My intention is to substitute for each count a sentence which reflects the criminality contemplated by that count and to achieve an overall sentence that reflects the totality of criminality. Once accumulation of sentences is allowed for, there is no circumstance capable of justifying an extension of the parole period at the expense of the non-parole period of the overall sentences. The overall head sentence should be thirty years and the overall non-parole period twenty-two and one-half years. My reasons for departing from the standard non-parole periods are the seriousness, elsewhere explained, of the appellant’s criminality in the first and second counts and the need, in imposing sentence on counts 5, 6 and 7, to provide a proper opportunity for parole.

146 I propose the following orders -

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against the sentences is granted, the appeal is allowed and, other than the sentence on the eighth count, the sentences are quashed.

3. The following sentences be and are imposed in lieu of those quashed -

Count 1: a non-parole period of eight years commencing on 22 August 2003 and expiring on 21 August 2011 and a balance of term of two years and eight months.

Count 2: a non-parole period of sixteen years commencing on 22 August 2008 and expiring on 21 August 2024 and a balance of term of five years and four months.

Counts 3 and 4: on each count a non-parole period of fifteen years commencing on 22 August 2009 and expiring on 21 August 2024 and a balance of term of five years.

Counts 5, 6, and 7: on each count a non-parole period of nine years and six months commencing on 22 August 2017 and expiring on 21 February 2026 and a balance of term of seven years and six months commencing on 22 February 2026 and expiring on 21 August 2033.

147 HOWIE J: I have read the judgment of Barr J in draft and I agree that the appeal against conviction should be dismissed for the reasons given by his Honour. I also agree with the proposed orders in relation to the application for leave to appeal against sentence. I simply wish to add some comments to the reasons given by Barr J for dismissing the third ground of appeal relating to the admissibility of the audiotape of the police interview with Bonham and statements made by him thereafter.

148 I agree with Barr J that s 43 of the Evidence Act (the Act) does not prevent the admission of a prior inconsistent statement where the witness admits that such a statement was made. There may, however, be other reasons for the rejection of the tendering of the statement, such as a finding that the probative value of the statement in documentary form outweighs its probative value under s 137 of the Act.

149 In the present case the audiotape recordings of Bonham’s interviews with the police were admissible as relevant to his credit under s 55 of the Act. The jury was asked to listen to the answering of questions by Bonham as recorded on the tapes to consider whether he was telling the truth at that time or in his evidence in the witness box. Having been admitted for that reason, the tapes could be used by the jury as evidence of the truth of what Bonham said on them under s 60 of the Act. I do not understand that there was an objection to the admission of the audiotapes or the transcripts based upon s 137 or any other section of the Act.

150 Mr Stratton SC, counsel for the appellant, also argued before this Court that, whatever might be the situation with the audiotapes of the interviews, a written statement made later by Bonham was inadmissible by reason of s 66(3) of the Act. It was argued that the statement purported to be an account of what the witness would say in court, Bonham at this stage being willing to give evidence for the prosecution, and, therefore, could not be admitted as hearsay evidence under s 66. No objection was taken to this statement independently from the audiotapes of the interviews and no reliance was placed before the trial judge on s 66(3).

151 When asked what the statement added to the recorded interviews and the transcripts of it which were, in my view, properly before the jury, Mr Stratton answered that it was in effect evidence that Bonham was prepared to continue with his account given in the interviews as at 26 September 2003, that is about a month after the interviews were recorded. Mr Stratton emphasised that the Crown “had a motive” to place this statement before the jury but conceded that the Crown had not explicitly used it to prove that Bonham was still maintaining his original version as at 26 September 2003. Nor was the statement used for this purpose by the trial judge in his summing up.

152 In any event, Mr Stratton agreed that the Crown adduced oral evidence from Bonham that he signed a statement in accordance with his interviews when it was presented to him by the police on 26 September 2003, so the fact that he was still willing to maintain his original version of the involvement of the appellant in the offences on that date was before the jury.

153 Although Mr Stratton submitted that the statement was “powerful evidence”, I cannot see how it was. The jury had the taped interviews and the transcripts of them. The fact that they had other documentary evidence of the version of Bonham implicating the appellant made about a month after the interviews seems to me to be neither here nor there. There was no added prejudice by reason of the fact that the statement was in documentary form because the jury had the tape recordings of the same account and transcripts of the recordings. Nor did the fact that Bonham had signed that statement add anything to its weight as evidence of the truth because he also signed a transcript of the interviews containing the same account.

154 In my opinion the statement was inadmissible under s 66(3), but there was not the slightest prejudice caused to the appellant by its admission and it could have had no possible bearing upon the jury’s verdicts.

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Citations

Dudley Mark Aslett v Regina [2006] NSWCCA 49

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Cases Citing This Decision

24

Adam v The Queen [2001] HCA 57

R. v Michael Anthony Ryan (No. 7) [2012] NSWSC 1160

Cases Cited

15

Statutory Material Cited

4

R v Nylander [2003] SASC 191

R v Georgiou [1999] NSWCCA 125

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CITATION:	Dudley Mark Aslett v Regina [2006] NSWCCA 49
HEARING DATE(S):	20 February 2006
JUDGMENT DATE:	24 March 2006
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 2; Howie J at 147
DECISION:	1. The appeal against conviction is dismissed 2. The application for leave to appeal against the sentences is granted, the appeal is allowed and, other than the sentence on the eighth count, the sentences are quashed 3. The following sentences be and are imposed in lieu of those quashed - Count 1: a non-parole period of eight years commencing on 22 August 2003 and expiring on 21 August 2011 and a balance of term of two years and eight months; Count 2: a non-parole period of sixteen years commencing on 22 August 2008 and expiring on 21 August 2024 and a balance of term of five years and four months; Counts 3 and 4: on each count a non-parole period of fifteen years commencing on 22 August 2009 and expiring on 21 August 2024 and a balance of term of five years; Counts 5, 6, and 7: on each count a non-parole period of nine years and six months commencing on 22 August 2017 and expiring on 21 February 2026 and a balance of term of seven years and six months commencing on 22 February 2026 and expiring on 21 August 2033.
CATCHWORDS:	Criminal law - breaking entering and committing the serious indictable offence of robbery in circumstances of special aggravation - sexual intercourse without consent in company with deprivation of liberty - inciting complainant of sixteen years of age to commit an act of indecency - Criminal law - evidence of accomplice - whether direction to jury adequate - whether trial judge obliged to direct jury that evidence uncorroborated - Criminal law - Crown opening - in opening to jury Crown Prosecutor mistakenly misstated the effect of witness’ evidence - whether trial judge ought to have discharged jury - whether miscarriage of justice - Criminal law - whether evidence identifying appellant wrongly admitted - Criminal law - obligation of counsel objecting to admission of evidence to identify legal basis of objection and evidence relevant to that basis - Criminal law - whether prior inconsistent statements of Crown witness wrongly admitted - Criminal law - irrelevant evidence wrongly admitted - whether proviso should apply - Criminal law - remarks of Crown Prosecutor - whether miscarriage of justice - Criminal law - whether verdicts unreasonable and inconsistent with evidence - Criminal law - sentencing - whether sentencing judge erred in treating elements of offences as aggravating criminality - whether judge erred in finding circumstances aggravating criminality - Criminal law - sentencing - whether sentences increased beyond what was proportionate to criminality to extend period of protection of society from offender’s recidivism - Criminal law - sentencing - whether sentences manifestly excessive
LEGISLATION CITED:	Evidence Act 1995 Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Baskerville [1910] 2 KB 658 Chen & Ors v R (2002) 130 A Crim R 130 The Queen v Johnson (1979) 22 SASR 161 Gilbert v The Queen (2000) 201 CLR 414 Adam v The Queen (2001) 207 CLR 96 Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 Lee v The Queen (1998) 195 CLR 594 Weiss v The Queen [2005] HCA 81 R v Street [2005] NSWCCA 139 R v Wickham [2004] NSWCCA 193 R v Blair [2005] NSWCCA 78 Veen v The Queen (No 2) (1998) 164 CLR 465 Markarian v The Queen (2005) 215 ALR 213 R v Wheeler [2000] NSWCCA 34
PARTIES:	Dudley Mark Aslett, Regina
FILE NUMBER(S):	CCA 2005/1712
COUNSEL:	D Arnott SC J Stratton SC
SOLICITORS:	S Kavanagh Brenda Duchen
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0071
LOWER COURT JUDICIAL OFFICER:	Finnane QC DCJ