Bryant v R - [2011] NSWCCA 26

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bryant v R [2011] NSWCCA 26
Hearing dates: 15 November 2010
Decision date: 02 March 2011
Before: McClellan CJ at CL at 1; Simpson J at 2; Howie AJ at 3
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - whether error in not ordering separate trials - whether error in admitting evidence of offences not on indictment - whether error in leaving all counts for the jury to determine - whether miscarriage resulting from submissions by prosecutor or errors of fact by trial judge
EVIDENCE - whether evidence in support of some counts and offences not on indictment admissible as tendency or coincidence evidence - whether evidence of confessional statements to custody manager admissible under s 281 of Criminal Procedure Act 1986 - whether in the course of "official questioning" - whether "in connection with the investigation" of an offence
Legislation Cited: Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Carr v Western Australia [2007] HCA 47; 232 CLR 138
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
Kelly v The Queen [2004] HCA 12; 218 CLR 216
Nicholls v The Queen; Coates v The Queen [2005] NSWCCA HCA 1; 219 CLR 196
O'Keefe v R [2009] NSWCCA 121
R v Armstrong [2010] NSWSC 483
R v Bryant [2008] NSWDC 346
R v Horton (1998) 45 NSWLR 426
R v Naa [2009] NSWSC 851; 76 NSWLR 271; 197 A Crim R 192
R v Sharp [2003] NSWSC 1117; 143 A Crim R 344
R v Taouk [2005] NSWCCA 155; 154 A Crim R 69
R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Category: Principal judgment
Parties: Nathan Gordon Bryant (Appellant)
Regina (Respondent)
Representation: Counsel:
In person (Appellant)
J Pickering (Respondent)
Solicitors:
Not applicable (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2007/8758
Decision under appeal

Citation:

R v Bryant [2008] NSWDC 346

Date of Decision:

2008-12-17 00:00:00

Before:

Bennett DCJ

File Number(s):

2007/8758

Judgment

McCLELLAN CJ at CL : I agree with Howie AJ.

SIMPSON J : I agree with Howie AJ.

HOWIE AJ : This is an appeal against conviction following a trial by jury in the District Court of an indictment containing eight counts. The appellant was represented by counsel at trial but was unrepresented on the hearing of the appeal. He has conducted the appeal by way of written submissions to which he did not wish to add any oral argument at the hearing in this Court. The submissions on which the appellant relies are set out in a handwritten document of 25 pages. The submissions are clear, rational and precise and the appellant appears to be intelligent. The Crown filed lengthy written submissions in reply and did not wish to add to those submissions at the hearing of the appeal.

Although the applicant apparently has no legal training, he has some awareness of the rules of this Court because he addresses rule 4 of the Criminal Appeal Rules in his written submissions and argues for the grant of leave for matters that were not raised by his trial counsel. He quotes from authorities of this Court that discuss when leave should be granted to an appellant to rely upon a point not taken at trial.

The indictment upon which the appellant was tried alleged that the appellant committed the following offences:

Count 1: On 29 April 2006, at Marulan in the State of New South Wales, did rob Sean Whitby of certain property, namely, two thousand and eighty dollars cash, the property of Jack Cowen trading as Hungry Jack's whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

Count 2: On 24 May 2006, at Marulan in the State of New South Wales, did rob Phillip Caffery of certain property, namely, one thousand dollars cash, the property of Saint Marinas Pty Ltd trading as Kentucky Fried Chicken whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

Count 3: On or about 2 January 2007, at Marulan in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at George Street with intent to commit a serious indictable offence therein, namely, to steal.

Count 4: On 2 January 2007, at Yass in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at Yass Valley Way with intent to commit a serious indictable offence therein, namely, to steal.

Count 5: On 15 January 2007, at Yass in the State of New South Wales, did rob Joanne Garner of twenty seven thousand dollars cash, the property of Chekah Pty Ltd trading as McDonald's Family Restaurant whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

Count 6: On 26 February 2007, at Goulburn in the State of New South Wales, did rob Sancha Waters of four thousand dollars cash, the property of Kisumu Pty Ltd trading as McDonald's Family Restaurant South Goulburn whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

Count 7: On 9 April 2007, at Moss Vale in the State of New South Wales, did rob Karen Casser of thirty thousand nine hundred and twenty dollars cash, the property of Moss Vale Services Club Ltd whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

Count 8: On 23 April 2007, at Queanbeyan in the State of New South Wales, was armed with a weapon, namely a sawn off .410 gauge single barrel shot gun, with intent to commit an indictable offence, namely, robbery whilst armed with a dangerous weapon.

Count 9: On 23 April 2007, at Queanbeyan in the State of New South Wales, did possess a shortened firearm that was not a pistol, without being authorised to do so by permit.

Before the jury was empanelled, Bennett DCJ, the trial judge, heard an application by defence counsel for separate trials of each of the counts on the indictment. The Crown opposed the application on the basis that evidence in respect of each of the counts was said to be admissible in respect of each of the other counts by way of tendency, coincidence or circumstantial evidence.

The Crown also wanted permission to lead evidence of other armed robbery offences not charged in the indictment. Two of these uncharged offences occurred in the Australian Capital Territory, being at Belconnen on 8 March 2007 and 23 March 2007. The third offence was an armed robbery that took place at Mittagong, being an offence to which the appellant had already pleaded guilty in separate proceedings. Again the Crown asserted that the evidence relevant to these three offences was admissible as tendency and coincidence evidence to prove each of the counts on the indictment.

There was a voir dire hearing before the trial judge during the course of which the Crown tendered a large number of documents including witness statements, images obtained from footage of various security videos and an ERISP with the accused. In his judgment refusing the application for separate trials, the Judge particularises the various exhibits that he considered in respect of each of the charges on the indictment and the three additional armed robbery offences: see R v Bryant [2008] NSWDC 346.

Before the jury were empanelled the Judge made the following relevant orders, as subsequently amended by him:

1) The application by the accused that there be separate trials in respect of each of the counts appearing in the indictment upon which the accused has been arraigned before me is refused;

2) I propose to allow the Crown in respect of each of counts 1 to 7 inclusive to adduce as "coincidence evidence":

a) Evidence of the methodology employed, clothing and equipment used, and the characteristics of the person detected or observed in the commission of the other offences charged in counts 1 to 7 inclusive;

b) Evidence of the methodology employed and clothing and equipment used by the accused in the commission of the offence of robbery whilst armed upon the McDonald's Restaurant at Mittagong on 16 April 2007 to which he has pleaded guilty; and

c) Evidence of the methodology employed, clothing and equipment used, and the characteristics of the person detected or observed in the commission of the offences of robbery whilst armed at the McDonald's Restaurant at Belconnen 8 March 2007 and 23 March 2007 respectively.

3) I propose to allow the Crown in respect of each of counts 1 to 7 inclusive and the allegation that the accused whilst armed robbed the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007, to adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person, motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was the person who carried out those offences, and, as "coincidence evidence".

4) I propose to allow the Crown in respect of count 8:

a) To adduce evidence of the apprehension of the accused on 23 April 2007 at Queanbeyan, of the circumstances in which he was found, and the product of the search of his person and motor vehicle and home, as evidence of facts and circumstances from which it might be inferred that the accused was armed with the intention of committing an offence of armed robbery; and

b) To adduce as "tendency evidence",

i) Evidence of the methodology employed and clothing and equipment used by the accused in the commission of the offence of robbery whilst armed upon the McDonald's Restaurant at Mittagong on 16 April 2007 to which he has pleaded guilty; and ii) Evidence of the methodology employed and clothing and equipment used in the commission of the offences charged in counts 1 to 7, and the armed robbery offences at the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007.

The Crown case

It was the Crown case that the appellant was the person who committed each of the offences in the indictment even though he was never identified as the perpetrator in any one of them, apart from the 8 th and 9 th counts. Those last two allegations arose from the circumstances of his arrest. The Crown sought to prove his identity in each of the offences in counts 1 to 7 based upon the tendency, coincidence and circumstantial evidence. Although there was evidence of disputed admissions, the Crown did not rely upon them except as part of its circumstantial case to prove the accused's participation in the robberies and the break and enter offences.

The charges concerned a number of offences committed chiefly against fast food outlets in Marulan, Yass, Goulburn and the surrounding area including in the ACT. The Crown contended that there were similarities both in the physical appearance of the robber and his modus operandi that indicated it was the same person committing all the offences. The Crown relied upon the appellant's admission to committing an armed robbery in Mittagong as identifying him in that robbery and as the basis for asking the jury to infer that he was the perpetrator of the offences on counts 1 to 7 on the indictment. It also relied upon the circumstances in which the appellant came to be arrested to further identify him as the person responsible for the other offences.

There was a somewhat complicated interaction between the various counts of the indictment and the other offences upon which the Crown case relied. The modus operandi was not the same in every case of robbery: for example the use of an angle grinder was not involved in every offence. The comparison of the circumstances surrounding just two or three of the offences taken at random may not have been sufficient to give rise to the degree of coincidence or tendency to prove beyond reasonable doubt that the offender in each offence was the same. But the Crown asked the jury to look at the offences as a whole and see elements of similarity between them, greater in some cases than others, to prove that the appellant was the offender in each case. This holistic approach was to be seen against the background of the particular establishments in which the offences were committed together with the general geographic location of the establishments in light of where the appellant lived.

Attached to the Judge's ruling admitting the evidence, there is an annexure setting out in some detail the similarities and the differences in the evidence given in respect of each count. This was derived from the material placed before him on the voir dire. As will be seen, some of it was not in accordance with the evidence later produced to a minor degree. Not unexpectedly there was not unanimity in the observations of the witnesses to a particular offence in their description of the offender or the weapon used. These are set out to some degree in the annexure. The annexure is a testament to the care and thoroughness with which his Honour approached his task. The following is a link to the chart prepared by the trial judge: Comparison Chart - PDF .

The appellant is arrested

The appellant was arrested on 23 April 2007 in a car park outside a Hungry Jack's restaurant in Queanbeyan at 4.30am. He was getting dressed into dark clothing. At the time he was next to his motor vehicle, a white Toyota Hilux utility. A search of the appellant and his vehicle resulted in a number of items being seized by the police. They included a black and white backpack, a shortened single barrel shotgun, a black woollen balaclava, a green Hitachi angle grinder with extension chord, a metal cutting disk and spanner, a jemmy bar and a pair of white fabric gloves.

Counts 8 and 9: - 23 April 2007

It was the Crown case that the appellant was waiting for staff to arrive at the premises and intending to commit an armed robbery on the restaurant. This allegation gave rise to count 8 in the indictment. His possession of the shortened firearm gave rise to count 9. As will become apparent, the evidence of the objects found in the appellant's possession assumed importance in the Crown's proof that the appellant was the offender in some of the offences set out on the indictment.

After his arrest, a search warrant was executed on the appellant's premises in Marulan. Items located included bank deposit bags taken during a robbery of a McDonald's restaurant in Yass (Count 5). There were also bank deposit bags taken during a robbery at the McDonald's in Belconnen on 8 March. This was one of the uncharged offences relied upon by the Crown. There was also located a large amount of cash, both notes and coins. Despite having over $18,000 in cash in his possession, the appellant's tax return indicated that he had earned $32,597 for the year 2006. The Crown asserted that the cash was the proceeds from robberies.

Later that day the appellant entered into an ERISP in which he admitted having committed an armed robbery at McDonald's at Mittagong on 16 April 2007. He later pleaded guilty to this offence before another court. This offence was not included on the indictment but the Crown relied upon the appellant's admission to having committed that offence as part of its case to prove the offences on the indictment. The Crown asserted that there were similarities between the commission of that offence and some that were charged on the indictment.

Count 1: Armed robbery - 26 April 2006

The first count on the indictment related to an armed robbery committed on 26 April 2006 at a Hungry Jack's restaurant at Marulan. At about 11.30pm, after the completion of trading, a person entered the restaurant armed with what two of the three employees present described as a single barrel shotgun with a wooden stock. The robber was wearing a balaclava with a single hole for the eyes. He was also wearing a pair of sunglasses and gloves. The person was described as being about 180cm tall, with a heavy build and aged about 30. One of the staff described the person as wearing a green jacket with square designs.

The robber demanded money from the safe and was given $2,080 that was placed into a calico bank bag held by the robber. He was asked if he wanted coins but he said, "No" with what appeared to one employee to be an Indian accent. Another of the employees thought the robber had a Ukrainian accent.

Count 2: Armed robbery - 24 May 2006

The second count related to a robbery at a KFC restaurant at Marulan on 24 May 2006 at about 8.45pm. Four staff members were confronted by a robber, described by some of the witnesses as having a single barrel shotgun with a wooden handle, wearing a balaclava with a single opening for his eyes, sunglasses and gloves. He was holding what appeared to be a Commonwealth bank bag. He was described as being of heavy or chubby build, about 180cm in height and dressed in dark clothing.

The robber demanded money from the safe but none of the employees could access it. The robber was given money from the tills and the float obtained from a smaller safe. He received $1000. The robbery was captured on CCTV footage. The jury were asked by the Crown to compare the appearance of the robber in that footage with both descriptions given by persons the subject of other robberies and footage taken in other robberies. It was a significant part of the Crown case, where there was footage taken of the robbery, for the jury to make comparisons between the appearance of the robber as armed in the CCTV and that of the accused and the items recovered at the time of his arrest.

A few days after the robbery a pair of gardening gloves were found in one of the rubbish bins outside the restaurant. These gloves could not be linked by DNA to the appellant.

Count 3: Break and enter with intent - 2 January 2007

At about 5am on 2 January 2007 a person entered into the KFC restaurant at Marulan by removing the metal locking plate from the front doors. The person was captured on CCTV footage and was wearing a balaclava, sunglasses, white gloves and carrying a black and white backpack. The person unsuccessfully attempted to gain entry to the safe using an angle grinder. Stills from the CCTV footage showed an extension cord being used by the person and the damage occasioned to the safe.

Count 4: Break and enter with intent - 2 January 2007

At about 3.30am on 2 January 2007, a person gained entry to the KFC restaurant at Yass triggering the alarm. Later inspection of the premises revealed that the drive-through window had been removed. The glass and surrounds had been neatly placed on the ground. CCTV footage showed a person entering through the removed window and going to the room where the safes were kept. Both safes were untouched. The person was wearing a balaclava and gloves and was in possession of a black backpack with a white insignia. There was evidence that the alarm was deafening and physically hurt the ears.

There was evidence that the appellant had previously attended at the premises in his role as a security guard in respect of cash movements.

Count 5: Armed robbery - 15 January 2007

At about 4.35am on 15 January 2007 a person entered the McDonald's restaurant at Yass by removing a pane of glass from a side door and then reaching inside and unlocking the door. The pane of glass was neatly placed to the side.

The person then confronted a lone female staff member who had arrived to prepare for the day's trading. He demanded money from the safe, and received $27,000 in two Westpac bank bags.

The robber was described as being armed with a weapon that was shorter than a rifle and with two barrels. He was wearing a balaclava with a single hole for the eyes, gloves and was carrying a backpack. He was described as stocky. The staff member had earlier seen a white station wagon and a white Hilux utility in the vicinity. There was CCTV footage of the robbery.

Count 6: Armed robbery - 26 February 2007

At about 4.50am on 26 February a staff member attended the McDonald's restaurant at South Goulburn before trading commenced. As he entered a side door, a person forced his way in after him. The person was armed with a shortened single barrel shotgun. He was wearing a balaclava with a single hole for the eyes, dark clothing and in possession of a black and light coloured backpack. He was "sort of solid" in build. He sounded Australian.

The robber forced the staff members to the back of the restaurant and demanded money from the safe. He received about $4000. The robbery was captured on CCTV footage. A light coloured "creamy" four-wheel drive vehicle was seen in the vicinity. Much is made by the appellant about the description of this vehicle and it is the subject of a number of grounds of appeal.

The Belconnen robberies - March 2007

On 8 March 2007 at about 5.25am, as staff were preparing for the day's trading, a person entered the McDonald's restaurant at Belconnen in the ACT. The person was armed with a shotgun and demanded that the safe be opened. The descriptions of the weapon given by the witnesses varied but included a single barrel shotgun with a wooden handle. The person was wearing a balaclava, gloves, dark clothing and carrying a backpack. He was described as Caucasian. The robber was handed plastic deposit bags labelled "McDonald's Belconnen Lake". The CCTV footage was unclear but showed the bags being handed to the robber.

On 23 March 2007 the same premises were robbed again at about 5.15am as staff were preparing for the day's trading. The robber was wearing a balaclava with a single eyehole, gloves, dark clothing and a backpack. He was described as Caucasian. Descriptions of the weapon again differed but included a sawn-off shotgun with a wooden handle. He was described as heavy-set. The robbery was captured on CCTV. The robber was handed plastic bank bags.

Count 7: Armed robbery - 9 April 2007

On 9 April 2007 the Moss Vale Services Club had closed early. A person entered at about 9.30pm after sales had finished. The person was armed with what two witnesses described as a shortened single-barrel shotgun. The robber was wearing a dark balaclava with one eye opening, gloves, dark clothing and in possession of a black backpack. He was described as stocky. He demanded money from the gaming machines and left after placing it into the backpack. There was no CCTV footage.

Armed robbery: at Mittagong - 16 April 2007

The appellant had pleaded guilty to the offence in other proceedings and it was not a count on the indictment.

At about 5am the appellant attempted to enter the McDonald's restaurant in Mittagong by removing a pane of glass from a side-door. This proved ineffective for him to gain entry because of a chrome bar blocking the way. A pane of glass was removed from another door by removing the metal and rubber seals. The glass was placed to one side. The store was not open as staff were preparing for the day's trading.

The appellant was armed with a single barrel shotgun with what appeared to be blue electrical tape around the stock. He was wearing a balaclava with a single eyehole, gloves and carrying a black and light coloured backpack. He demanded money from the safe and was handed a sum that was placed into the backpack. He requested money from another safe but was informed by staff that they could not gain access to it. The appellant left the premises for a short time before returning with an angle grinder that appeared green in colour. He used the grinder to cut out a section of the safe. He then reached in and obtained money from inside. A total of $40,000 was taken. In the car park at the time of the robbery was a white single cab tray-back utility.

CCTV footage was obtained from the robbery and the appellant made admissions to having committed the offence in an ERISP shortly after his arrest.

The appellant's case

In his initial interview with police the appellant accepted that he owned the shotgun found in his possession, that he had shortened it and placed blue tape around the stock. He also accepted that he owned the balaclava and the cartridges for the weapon. He said that he owned the backpack and some cable ties found in the vehicle and at his home, some of which were made to represent handcuffs. He conceded that the angle grinder belonged to his father.

He admitted to having committed the armed robbery at Mittagong and gave an account including using the angle grinder to cut an opening into the safe from which he extracted $40,000. He denied that anyone assisted him in the commission of the robbery. He refused to comment about any of the other offences with which he was charged. He acknowledged that he had been employed by a security company for about 14 months and had serviced the KFC store at Yass on a number of occasions. He denied that he had ever loaded the firearm and said that the date of his arrest was the first time that he ever been in possession of ammunition for it.

Some months after his arrest the appellant sought to make a further statement to police denying much of what he said about the possession of the items found in his custody at the time of his arrest. He was permitted to read from a five page prepared statement.

The account given by the appellant in both interviews was not irrelevant to the issue of whether there should be separate trials. In his second record of interview the appellant gave a long account of his involvement with a person named "Buck", or Michael O'Connor also known as Michael Watson. In effect, although he admitted to the Mittagong robbery, he maintained that much of what he had said to police in his first interview after his arrest was false in order to "cover up for people who were involved". He said that the items in his possession and found on his arrest were given to him by Buck.

In December 2005 when working as a security guard he was robbed in the car park at McDonald's Belconnen. He knew a person named "Buck" who he also knew as Michael Watts. He had met him in 2004 at the Terminus Hotel. He first spoke to him shortly after he was robbed when Buck questioned him about the amount of money he carried and whether he had a gun.

He said that in February 2006 he met Buck and another person, who was armed with a pistol, and in effect he was asked to get them a clean handgun. He thought that these two might have been responsible for the robbery committed in December 2005. His concern about his safety led him to resign from his employment. In December 2006 Buck asked him for the loan of an angle grinder that was not new. The appellant asked him if he wanted a small or large one and Buck said he would take both. He was to place them in a garbage bag and meet at a designated place. He kept the agreement and handed the grinders to Buck in the hope that Buck would leave him alone. Buck gave him a mobile phone. The appellant did not see Buck again although he had further conversations with him by telephone.

In early January 2007 he received a message on the mobile phone to pick up the grinders and, when he did so, found two garbage bags in which were calico bank bags containing about $4000. Buck later told him it was for the use of the angle grinders. In March 2007 Buck contacted him again and asked for the use of the angle grinders. The appellant reluctantly complied.

In April 2007 Buck contacted him to collect a bag from their normal meeting spot. The appellant recovered a backpack inside of which was the sawn-off shotgun with shotgun shells, screwdrivers and jemmies. There was also a garbage bag in which was a balaclava, pairs of gardening gloves, and two calico bags. There was also about $8,000. He took these items home.

When the appellant contacted Buck about this money, he was inveigled into committing the robbery at Mittagong McDonald's. He was to meet another person there to whom he was to hand the rifle. Buck gave him instructions as to how to enter the premises. He was to use the cable ties on the staff. When he arrived at the premises, Buck informed him that the other person would not be present and he was to carry out the robbery alone. He said that the manageress was not to be hurt.

The appellant committed the robbery. When Buck later contacted him, the appellant said he wanted nothing more to do with him. He agreed to meet someone on Buck's behalf at the Hungry Jack's in Queanbeyan. He was waiting there to return the property to Buck when he was arrested.

The Crown called Michael O'Connor (Buck) at the trial and, although he admitted he had met the appellant once four or five years before the trial, he denied all of the appellant's allegations.

GROUNDS OF APPEAL

Application for a separate trial

The appellant complains first that the Judge erred in permitting a joint trial of the counts on the indictment and the three other offences and secondly that the prosecutor in the course of the application made errors that may have misled the Judge.

Something should be said about the manner in which the application proceeded. As the appellant notes in his submissions, no tendency or coincidence notice was filed. This was in breach of both ss 97 and 98 of the Evidence Act . This is an unacceptable practice even though no point was taken by defence counsel. The contents of a properly drafted notice in respect of coincidence evidence was considered in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233. The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence.

The Judge should have refused to proceed until proper notices were given notwithstanding the attitude take by defence counsel. Here the whole of the evidence was simply placed before the Judge on the basis it was tendency, coincidence or circumstantial evidence without any attempt to place it into its component parts or identify what evidence was admissible on what basis.

The application proceeded on the basis of the tender of a large amount of material including witness statements, documents, CCTV footage and still photographs. No witnesses were called to give evidence and, therefore, the application was to be considered taking the Crown case at its highest.

Before dealing with the general complaint that his Honour was in error in not granting separate trials, it is convenient to deal with complaints made by the appellant about the conduct of counsel during the course of the voir dire and the submissions made to the Judge.

Particular complaints

1. The absence of CCTV footage of a green angle grinder

As has been noted, the Judge had a large number of statements, photographs and CCTV footage before him on the voir dire. The complaint is that the prosecutor misled the Judge on the pre-trial application in relation to CCTV footage in respect of count 3 by asserting that it would show a green angle grinder. However, during the trial it was found that no footage existed because of some malfunction with the equipment. However, stills from the CCTV footage were tendered that showed an extension chord being used by the robber and there was evidence from the crime scene of the use of a grinder.

In my opinion it was of no consequence that there was no visual evidence available of the actual use of a grinder or whether it was green. The overwhelming inference was that the robber in count 3 used a grinder to try to enter the safe. That was sufficient connection with the fact that the appellant had a grinder in his possession on his arrest and had admitted using one in the Mittagong offence. Although there was no evidence that the grinder in count 3 was light green colour, there was no evidence that it was not.

In any event, as I understand the appellant's account, he had given the grinder to O'Connor, so that it was never in dispute that, if a grinder were used, it was that which had been later found in the appellant's possession having been returned to him by O'Connor. The effect of the appellant's case was that O'Connor was involved in the commission of the offences and that inferentially he used the grinder provided to him by the appellant. It was the appellant's case that he had the grinder with him when he was arrested because he was again going to lend it to O'Connor.

True it was, as the appellant points out, that the Judge raised with the prosecutor during the trial the absence of the evidence of the CCTV image of the grinder and referred to his summary of the evidence annexed to his judgment where he notes that the colour of the grinder used in count 3 was consistent with the grinder found in the appellant's possession at his arrest. But the issue went nowhere and defence counsel had no comment to make about the matter. It would have been unreasonable for the Judge to have reconsidered his decision in light of the absence of evidence that the grinder used in count 3 was green. The point raised by the appellant has absolutely no substance, which is no doubt why it became a non-issue at the trial.

2. Prosecution misstatement as to an admission made by the appellant

The complaint is that the prosecutor misstated that in the second interview given by the appellant he said, "Buck did them" (the other robberies). The Judge had in evidence before him the second interview given by the appellant. He quoted at length from it in his judgment over a number of pages. Any possible misstatement by the prosecutor as to what was said by the appellant in his second record of interview could have had only the most marginal, if any, influence on the Judge. It is highly unlikely that the Judge would have been misled by anything said by the prosecutor having regard to his Honour's detailed examination of the appellant's account in this judgment.

In any event the appellant's account in his second interview was of limited relevance to the issue before the trial judge as to whether there should be separate trials. As has already been noted, the only relevance of the appellant's explanation given in his second interview was that the jury could not have made a proper evaluation of the allegation contained in the 8 th and 9 th counts without an understanding of the appellant's explanation which raised the issue of the other robberies and who was responsible for them.

Any supposed misstatement about what the appellant said in his second interview with police could not have remotely affected the Judge's decision whether or not to grant separate trials.

3. Prosecution misstatement as to the description of the appellant's motor vehicle

The complaint refers to count 6 and an allegation that the prosecutor stated that a witness gave a description of a vehicle seen in the vicinity of the robbery as "matching" that of the appellant.

The evidence was clear that the appellant owned a white Toyota Hilux Utility. Apart from the evidence of the presence of the vehicle at the time of the appellant's arrest, there were only three other counts, apart from the Mittagong offence, where any relevant evidence was given of the presence of a vehicle in any way similar to the description of the appellant's vehicle. The Judge's summary annexed to his judgment indicates under the heading "Count 3": "white vehicle, the back squared off". Under "Count 5" he notes, "1) White Hilux parked in nearby car park. 2) White ute parked in nearby car park". Under "Count 6" the Judge notes: "Light coloured 4 wheel drive".

The complaint is that, during his address on the voir dire, the prosecutor stated that the witness in count 6, Ms Rymans, gave a description of a vehicle seen in the vicinity that matched that of the appellant whereas the description she gave was nothing like that of the appellant's vehicle. This was chiefly because, according to the appellant, the witness's description was that the vehicle was curved toward the back at the boot whereas the appellant's vehicle has a tray back and no boot.

It is clear from the Judge's summary of the evidence and his annexure that he was aware that the witness in count 6 had not identified the appellant's vehicle to any significant degree. It my opinion any misleading suggestion that the vehicle seen by the witness "matched" that owned by the appellant could not remotely have affected the Judge's decision to refuse separate trials.

4. The prosecutor misled the Judge by claiming that the appellant had implicated the manager of McDonald's Mittagong in the robbery

The two ERISP's made by the appellant were tendered on the voir dire without objection. In Q82 of the ERISP of 12 September 2007, the following occurred:

Q82. Actually I think the Mittagong McDonald's was on 20, the 16 th of April 2007 OK. In the statement there, are you implicating that the manager of the store at Mittagong was in on the armed robbery?

A. Yeah. Well Buck basically said that she's not to get hurt, she like well, yeah I guess so yeah.

Q83. So did she know about the armed robbery or is she a, did she, are you saying she knew about the robbery or are saying that Buck knew her and didn't want her to get hurt?

A. I don't know maybe she knew about it I'm not sure, but Buck, he didn't say she knew about it. So I was a bit worried when I took the panel out of the door, out of the door where she was gunna go through, I thought it would be best just to you know quit it and go but she didn't seem, like she might not have noticed the door but.........

Whether or not the appellant was asserting that the manageress was involved or complicit in some way in the robbery at Mittagong was completely irrelevant to the decision whether there should be separate trials. It is not a matter that is mentioned in the annexure prepared by the trial judge. In any event the Judge had both the interviews given by the appellant in evidence before him and quoted from them. The Judge summarised the appellant's account of the Mittagong robbery and the only reference to this issue was to the fact that Buck did not want the manageress to get hurt.

This complaint is completely without merit.

5. The prosecutor misled the Judge by stating that the appellant attended Yass McDonald's as a security guard to collect cash

The evidence on the voir dire was that the appellant had attended the KFC establishment at Yass that was subject to count 4 as part of his duties as a security guard. However the prosecutor, mistakenly, referred to the appellant's security work in relation to McDonald's at Yass that being the premises the subject of count 5. It was obviously a slip and the Judge had material before him that clearly indicated the correct situation. Had it mattered in the slightest defence counsel could have raised it. The appellant must have known it was an error but apparently did not seek to have his counsel intervene.

The particular place where the appellant worked as a security guard had no bearing on the issue of whether there should be separate trials. It is not a matter mentioned in the annexure to his Honour's judgment. In any event the Judge refers to a statement by the owner of LJB Security that states that the appellant was employed as a security guard between June 2005 and August 2006 and that the clients included KFC at Yass and McDonald's at Belconnen Lake.

This complaint is without merit.

6. The prosecutor misled the Judge by submitting that there was a shoe impression available

Once again whether or not any such misleading occurred, it had nothing to do with the Judge's decision to refuse the defence application for separate trials. Although some reference was made to it in opening, the Crown determined not to lead any such evidence during the trial because apparently he did not believe it was reliable. The issue of a shoe print comparison is not mentioned in his Honour's judgment and does not appear in the annexure. This is notwithstanding that at T414 his Honour states that the shoe print comparison was a matter he took into account in determining whether to admit coincidence evidence. With respect, I cannot understand how that matter was relevant to the issue of whether to grant a separate trial and this is probably why there is no reference to it in his judgment.

The complaint is without merit.

7. Defence counsel failed to correct these errors

As in my view any asserted error could not have affected his Honour's decision whether to grant separate trials, the failure of counsel to raise these matters or seek to correct them could not have brought about any miscarriage.

The Judge's decision refusing separate trials

The application was primarily concerned with whether the evidence in the various counts and the uncharged offences met the test for admissibility under ss 97 and 98, and, if so, whether the evidence should be rejected under s 101. However, his Honour accepted that a joint trial could be ordered, even if the evidence was not admissible under those provisions, in accordance with ss 21 and 29 of the Criminal Procedure Act on the basis that they were offences of a similar character.

For example, it was inevitable that the 8 th and 9 th counts would be tried together because they were so closely connected, arising as they did from the arrest of the appellant. The only issue on those two counts was whether the appellant was intending to rob the store that he was found close to. The appellant had another explanation for his presence there and the items found in his possession but it was clearly the case that at least those two offences were part of a series of connected events. The real issue was whether any or all of counts 1-7 and the three further robbery offences should be heard with counts 8 and 9.

The Judge meticulously identified the exhibits placed before him relevant to the particular counts on the indictment and the three further offences. He then reviewed the evidence in detail, quoting passages from the witness statements and making comparisons between the images of the robber in the various counts where those images existed. The Judge examined the admissions made by the appellant on his arrest in relation to the items found in his possession in the first ERISP in considerable detail. He also outlined the applicant's explanation for his presence at the scene of his arrest and the items found in his possession given in his second ERISP.

In his judgment the trial Judge summarised the prosecutor's submission as to the points of comparison between the charges in this way:

1) Each offence occurred early or late in the trading hours, when staff were present but patrons were not;

2) The offender in each instance was alone;

3) The descriptions given of the offender by witnesses, and as gleaned from the images captured on the security videos, were all comparable in their essence, and in turn were consistent with the presentation of the accused, a stocky heavy set man, about 170 cm tall;

4) The balaclava worn by the offender in each instance was identical;

5) On each occasion the staff members present were required to lie or kneel on the floor;

6) In the commission of seven of the offences, including the robbery at Mittagong to which the accused has pleaded guilty, the offender was carrying a small backpack;

7) On each occasion the robber sought access to the safe to take money prepared for banking;

8) In the offence charged in Count 3 , and the robbery at Mittagong to which the accused pleaded guilty, the safe was attacked using an angle grinder, of the same colour and otherwise comparable in their appearance;

9) In the offences charged in Count 3 and Count 5 and the robbery at Mittagong to which the accused pleaded guilty entry was gained to the premises by removing the seals and glass pane from a door, leaving them intact against the wall nearby; and

10) There was a vehicle comparable to the accused's Toyota Hilux utility with which he was arrested in the circumstances giving rise to Counts 8 and 9 , seen near to each of the targeted premises at the time of the commission of the offences charged in Counts 3, 5, and 6 , and the robbery at Mittagong to which the accused has pleaded guilty.

148 The Crown added to this list the facts and circumstances relevant to the robberies at the McDonald's restaurant at Belconnen on 8 March 2007 and 23 March 2007 and submitted that the only rational inference to be drawn from the evidence gathered upon the arrest of the accused, and the comparisons to be made between those two robberies and the offences charged in the indictment, and the robbery at Mittagong to which the accused pleaded guilty, was that the accused committed them.

His Honour also noted a concession by the prosecutor that the evidence was that in the first count the robber spoke with a "foreign" accent either Ukrainian or Indian, that Count 2 was committed at 8.50pm and that Count 9 took place in licensed premises.

I am not sure that the matters listed in 1 to 7 above would be sufficiently unusual to give rise to coincidence evidence of sufficient probative value to justify its admission under s 98. They do not give rise to a particularly unique manner of committing an armed robbery on premises that are obviously prone to such an offence and they do not take into account the break and enter offences. Nor I am sure that taken together they are significantly probative that the accused had a tendency to act in a particular way, apart from being a thief. Tendency evidence itself will rarely have sufficient probative value to identify a person as a particular offender. A good example of the difference between coincidence and tendency evidence in its capacity to identify a particular person as the offender in the commission of a particular offence is O'Keefe v R [2009] NSWCCA 121.

However, the starting point in a consideration of the admissibility of the evidence in counts 1 to 7 and the other three matters is the evidence surrounding the appellant's arrest. Discounting his explanation, the uncontroverted evidence was that the appellant was located in the early hours of the morning parked near a fast food store. In his possession was a single-barrel shortened shotgun, a balaclava of the type described in the robberies, gloves and other clothing in a black and light coloured backpack. He was in possession of his distinctive motor vehicle. It was well open to the jury to find that he was in the vicinity of the Hungry Jack's restaurant to commit an armed robbery on those premises once the staff arrived. That inference was overwhelming.

But added to this was the evidence of the appellant's admission of having committed the armed robbery at McDonald's Mittagong, at 5.00am using equipment similar to that found in his possession on his arrest. Further, there was CCTV footage of that robbery. The jury knew that the person depicted in the Mittagong CCTV was the appellant because of his admission that he committed that offence. This evidence added to the inference of his intention in respect of counts 8 and 9.

There could be no argument in my mind that the evidence of the Mittagong robbery was admissible on counts 8 and 9. It was well open to the jury to find on the basis of the evidence relating to counts 8 and 9 and the Mittagong robbery that the appellant had a tendency to commit armed robbery offences on fast food premises early in the morning using items that he had in his possession on his arrest. This evidence was admissible in relation to counts 2, 5 and 6. The Belconnen robberies also supported this tendency particularly as there was evidence to connect the appellant with those robberies. In one case there was the description and CCTV footage and in the other the bank bags.

Although counts 3 and 4 were not robberies, the evidence of counts 2, 5, 6, 8 and 9 and the Mittagong and Belconnen robberies were admissible in relation to those offences because of the similarities in the description of the person committing the offences available from the CCTV footage of the other offences and the timing and the nature of the premises. The only object missing was a firearm. In count 2 the offender was wearing a balaclava as well as dark glasses as he was in count 3.

The tendency could be legitimately widened without becoming too imprecise and losing its probative value. In other words the appellant had a tendency to enter fast food premises in the early hours of the morning shortly before or when the staff had arrived wearing a balaclava, gloves and carrying a backpack in order to steal money from the premises by force or otherwise.

However, there was a fact that may have been taken into account as more than tendency but as coincidence evidence that came from the appellant's admission that in the Mittagong offence he had removed part of the glass door in a neat and professional manner and laid it to one side. Of course that method of entry could be compared with that used by the robber in counts 4 and 5. In count 4 the window to the drive-through service had been professionally and neatly removed, being laid to one side intact. In count 5 part of a door had been removed before the day's trading had been commenced. Again the glass was neatly removed and placed to one side. It was open to the jury to find that the accused had a tendency to enter premises in this way or the evidence could be used as coincidence in comparing the three events in counts 4, 5 and the Mittagong robbery.

Next was the presence of the angle grinder and its accessories found in the appellant's possession on his arrest. There was evidence in count 3 of the presence and use of an angle grinder in an attempt to enter the safe. This is not a matter to be considered in isolation but regard must be had to the nature of the premises, the way the premises were entered and the time of the offence. Further, an angle grinder was used in the Mittagong offence to which the appellant had pleaded guilty. Based on this material the jury would have had no difficulty in concluding that the appellant had a tendency to use an angle grinder to obtain entry to a safe where necessary or the evidence could be considered as coincidence evidence between counts 3, 8 and the Mittagong robbery.

There was, therefore, in my view, ample evidence to join to counts 8 and 9, counts 2, 3, 4, 5, 7 and the Mittagong and Belconnen robberies.

Count 7 was somewhat different to the other offences because of the type of premises chosen: it was a licensed club not a fast food chain store. Further, the offence was committed in the evening albeit after the club had closed to patrons. But there was sufficient similarity in the description of that robber with those of premises where there was stronger evidence of the appellant's involvement to permit the jury to be satisfied beyond reasonable doubt that it was the appellant who committed count 7. There was evidence from some witnesses that the weapon matched the description of that found in the appellant's possession at his arrest. The robber was wearing a balaclava of sufficient similarity to that in the other offences, he was wearing gloves and carrying a backpack similar to that described in other robberies. Further, the robber's general physical appearance was consistent with the appearance of the accused.

But this offence should be seen in the circumstances of the place and timing of the offences surrounding it: count 6, McDonald's Goulbourn, was committed on 26 February 2007; McDonald's Belconnen on 8 March and 23 March 2007; count 7 on 9 April 2007; McDonald's Mittagong on 16 April 2007, Counts 8 and 9 on 23 April 2007. These offences committed by a person of similar appearance carrying similar objects in circumstances where the staff was present but the public was absent occurred within a period of 2 months in an area at no great distance from where the appellant lived. In my opinion it was open to the jury to consider whether there was any reasonable possibility that the offence was committed other than by the appellant taking into account the nature of the premises.

Count 1 was also different because the robbery took place at 11.30pm. However it was after trading hours while the staff was still on the premises. There was no CCTV footage. However, the general description of the robber matched that of the appellant. Some witnesses described a weapon similar to that in the possession of the appellant on his arrest. The description of the balaclava was similar and the robber was wearing dark glasses as he was in counts 2 and 3. There was ample evidence for the jury to conclude that the appellant was the robber in count 3. The similarities between the robber in count 3 and the person who committed count 1 were sufficient for the jury to conclude that it was the same person. There was evidence that the robber was wearing a jacket with a "green pattern". That description was consistent with the robber in the second of the Belconnen robberies. There was evidence of the finding of a jacket matching that description in the appellant's premises. Of course there was evidence that the robber spoke with a foreign accent, but that was a factor for the jury to take into account, considering how reliable they thought that this evidence was.

There was also to be taken into account in considering all the offences the geographical area in which they were committed. The appellant lived in Marulan but he was arrested in Queanbeyan. Both offences in count 1 and 2 occurred at Marulan within a month of each other. It was open to the jury to determine that it was the same person who committed count 3. Further, they could determine that there was no reasonable possibility other than that the person who committed count 1 also committed the offences in counts 2 and 3.

In my opinion it was also necessary that the jury consider all of the offences on the indictment and the other three offences in light of the explanation given by the appellant for the circumstances of his arrest. It would have been unrealistic for the jury to be required to consider counts 8 and 9 in light of the appellant's explanation of returning items to Buck without being made aware of the allegations of his involvement in a series of offences committed in the early hours of the morning at fast food stores before the restaurants were open to the public and with clothing and items similar to those found in his possession on his arrest. The evidence of the other offences, particularly counts 3, 4, 5, 6, together with the two Belconnen offences and the Mittagong robbery to which he had pleaded guilty were admissible in order to rebut the innocent explanation that the appellant gave for the facts giving rise to counts 8 and 9. The only realistic basis for the jury to consider that explanation as a rebuttal to what otherwise seemed an overwhelming case in respect of those two charges was to investigate his explanation of his involvement with Buck and, by implication, his allegation that Buck had been involved in the offences charged against the appellant. The appellant's explanation for counts 8 and 9 made a trial of all the offences on the indictment, and the Mittagong robbery, inevitable.

I am not satisfied that his Honour erred in refusing to separate the counts on the indictment or in allowing into evidence the facts and circumstances of the Belconnen offences and the Mittagong robbery. Rather, in my view, it was the only reasonable course that could be taken in light of the defence raised to counts 8 and 9 by the appellant.

Errors by prosecutor in opening to the jury

It will be a very rare case where the Crown's opening will lead to a miscarriage of justice particularly where defence counsel makes no complaint and no application is made for a discharge of the jury. It would have to be a case where the Crown's opening was so prejudicial to the accused, that it could not be cured by a proper summing up or that the subject matter complained of was of such a nature that the jury may have wrongly acted upon it even after a trial of over two weeks after the opening. In my opinion none of the matters raised is of such a nature that any of them could have resulted in a miscarriage of justice.

1. Error in telling the jury there were two entries into the premises in count 3

The prosecutor indicated to the jury that the Crown case was that in count 3 the appellant entered the premises twice on 2 January, first at 1am and secondly at 5.11am. It was said that on each occasion he was dressed in the same manner, carrying a firearm and used the angle grinder but in different places. The suggestion was that on the second occasion a larger grinder was used.

However, when the evidence was led in support of count 3, the prosecutor did not lead any evidence of an entry at 1am. A discussion occurred about this topic in the absence of the jury and during the course of the evidence from a police officer about the robbery of the KFC store at Marulan. The prosecutor explained that there had been an equipment malfunction and the only footage available was of the entry at 5.11am. It also appears that the time recorded on the CCTV footage was inaccurate according to records kept by the security company. The trial then proceeded on the basis that there was only one entry at 5.11am.

There was a considerable discussion about what evidence should be left before the jury, with at one stage a suggestion made by the Judge that the police officer, who had viewed the original footage, could give evidence from his memory of what he saw. However, the prosecutor decided simply to rely upon the entry at 5.11am of which there was CCTV footage and from which it could be inferred that the robber had an electrical tool of some sort, although the grinder was not visible. The prosecutor would further rely upon the physical evidence that a grinder had been used on the safe.

Defence counsel was asked what he wanted to say in relation to the prosecutor's course and he replied, "Nothing". This attitude is hardly surprising because it could not have assisted his client to seek to raise questions about there being two entries rather than one. Nor could it have prejudiced his client that the Crown had opened on the basis of two entries but was leading evidence of only one. There was no need for the Judge to point out that the evidence before the jury was different to that opened by the Crown more than a week earlier. It is highly unlikely, in light of the number of counts on the indictment and the three other offences that were to be placed before the jury, that they would have remembered such a detail. An application for a discharge of the jury would clearly have been refused.

There is no merit in this complaint.

2. The prosecutor misled the jury by opening on count 1 that a single barrelled shortened gun was used

The Crown's case was that the same weapon was used in every robbery and it was the weapon found in the appellant's possession on his arrest. There was no CCTV footage for the offence in count 1 and, therefore, the jury had to rely upon the evidence given by the witnesses.

There were different descriptions given of the firearm. Luke Chapman said the robber was carrying a "single barrelled shotgun". It was "half an arms length", with a "wood grain" handle and "black barrel".

Ms Hubbard described the weapon as "fairly long and I know there was a wooden bit on it".

Mr Whitby, when asked to describe the weapon, said, "it looked to me like a 14 gauge shotgun", it appeared fairly new with a single barrel and a "wood grain stock". His father had a similar weapon. He was asked to describe its length and said, "It looked to me to be just normal length" and indicated with his hands a distance of one metre.

The consistent evidence was that it was a single barrel shot gun. The only dispute was whether it was shortened or not. The prosecutor was entitled to open to the jury on the basis that the jury would find that it was a shortened single-barrel shotgun taking into account all the evidence surrounding the robbery including the robber's physical appearance and his clothing. They were entitled to compare the robber's general description with the person depicted in count 3.

In any event the evidence was fairly put by the Judge to the jury and it was for them ultimately to determine whether it was the same robber as in the other counts taking into account the conflicting evidence about the weapon. The Crown's opening, even if an over-generalisation of the evidence, could not have resulted in a miscarriage.

3. The Prosecutor misled the jury by indicating there would be evidence that the appellant had been a security guard in connection with McDonald's at Yass

It is clear that the prosecutor continued the slip he made in addressing the Judge during the voir dire. The evidence was plainly that the appellant had a connection with the Yass KFC, which was count 4, whereas the Yass McDonald's was count 5.

Evidence was called from Mr Barber as to the appellant's employment as a security guard and he indicated that the appellant attended the premises of KFC at Yass. There was also evidence that the appellant had attended McDonald's at Belconnen in the same capacity.

It did not matter whether the appellant had attended KFC at Yass or McDonald's at Yass. The point of the evidence was that, because of his previous employment as a security guard in connection with fast food chains, he had knowledge of how they operated in relation to their cash. But it was a very minimal part of the prosecution case. In any event, the prosecutor cross-examined the appellant on his employment at KFC at Yass and correctly described the evidence in his closing address.

There is no merit in this complaint.

4. The Prosecutor misled the jury in opening by saying that each witness will "tell you the person who took part in the offences was armed with a sawn-off shotgun"

As has already been noted, in count 1 there was a discrepancy in the evidence as to the length of the firearm. But even if what the prosecutor said in his opening was an over-generalisation of the evidence as to the nature of the weapon used in each of the robberies, the Crown was not relying just upon the nature of the weapon to prove the identity of the robber as the appellant. It was a combination of factors, including clothing, implements such as the backpack, physical comparisons between CCTV footage where they existed with the CCTV from Mittagong and the circumstances of the appellant's arrest, that was the basis of the Crown's case.

At the end of the evidence it would have been obvious to the jury that there were discrepancies in the accounts given by various witnesses. These would have been relied on by defence counsel and were made clear in the summing up. What the Crown said on this point in his opening could not have possibly brought about a miscarriage of justice.

5. Defence counsel failed to correct the Prosecutor's error as to the appellant working at McDonald's at Yass

As has been shown, the statement of the appellant's involvement with McDonald's at Yass was clearly a slip that could have had no impact upon the trial in any way at all. There was no need for defence counsel to correct the error. Had he done so, it would only have emphasised that the appellant had been a security guard at the KFC at Yass.

The Judge should have excluded evidence as to an alleged admission of the Belconnen robberies occurring in the video of the search warrant

During the course of the search of the appellant's premises after his arrest the police located cash bags that bore marks identifying them as from McDonald's at Belconnen and were linked to the robbery on 8 March 2007. The police officer showed the bags to the appellant and made a reference to Belconnen. The Appellant said, "Yes, I've admitted to that one". A short time later he said, "I've admitted to that".

Before the evidence was admitted, defence counsel objected on the basis that the evidence was confusing or misleading as to what it was to which the appellant was making an admission. The argument was that the jury would hear of no previous admission having been made by the appellant to the Belconnen robberies and, therefore, it did not make any sense for the appellant to say that he had admitted to that robbery. A voir dire was held. The appellant did not give evidence.

The Judge determined that it was open to the jury to consider that what the appellant said was an admission of his involvement in the robbery at Belconnen. There was, apparently, no doubt that the police officer was speaking about Belconnen (although see a later ground of appeal) and showing the appellant bags that were clearly labelled indicating they were from McDonald's Belconnen. His Honour determined that whether the appellant was making an admission to having committed the Belconnen robbery or was confused was a matter for the jury. The use of the past tense was, his Honour thought, simply a matter for the jury to take into account as was the case that it was clear that the police officer was referring to McDonald's Belconnen as the bags clearly showed. Further, the appellant made two admissions within a very short period of time. The event was video recorded and it was open to the jury to make their own assessment as to what the appellant was admitting, whether the Mittagong robbery or the Belconnen robbery. The Judge adverted to the fact that the appellant had been interviewed over a lengthy period of time and may simply have forgotten what offence or offences to which he had agreed.

In my opinion it was clearly open to the Judge to have admitted the evidence. It was relevant as a response to being shown the bags from Belconnen McDonald's. Whether or not it was an admission to that robbery was a question of fact for the jury and they were in a good position to make that decision because it was video recorded. It was not misleading because the jury knew all the surrounding facts upon which they could base their decision. It was not crucial to the Crown case, which was really based upon coincidence or tendency evidence, but it supported the contention that the appellant committed the Belconnen robberies. Section 137 of the Evidence Act had no role to play because, if the jury thought that the appellant was admitting to the Belconnen robbery, the only prejudice was that the admission supported the Crown case. On the other hand, if the jury doubted that he was admitting to have committed the Belconnen robbery and was confused, tired or for some other reason was referring to the Mittagong robbery, they would have disregarded it as having no evidentiary value.

There was no other reason to reject the evidence. It was not illegally obtained and, if it was an admission, then there was no reason to doubt its reliability. Section 90 had no role to play because the admission of the evidence did not render the appellant's trial unfair.

In his evidence the appellant explained that he was mistaken and thought he was referring to the Mittagong robbery. That was the position taken by his counsel in his closing address.

In my opinion the evidence was rightly admitted.

There was a miscarriage of justice by reason of the Crown withholding DNA evidence from the defence prior to the trial

The complaint relates to an alleged failure by the Crown to provide evidence of a DNA report on gloves found in a garbage bin three days after the robbery at the KFC Marulan, which was count 2.

There was no evidence that the gloves were used in the robbery. But in any event there was evidence that the gloves contained no DNA consistent with the appellant. Whether or not the police might have been criticised for the late supply of the report was irrelevant, and why the delay had occurred was never explored. The police officer in charge, Detective Selmes, was asked when he had supplied the DNA report and conceded that it was "the week before last". There were questions asked by defence counsel about the delay in having a report prepared on the glove (T 599-600). The officer admitted that the prosecution had also not received a report until two weeks earlier. The officer accepted that, had defence counsel not asked about the DNA report, the evidence would not have been produced.

During the prosecutor's re-examination of the officer on this topic, defence counsel objected. The Judge indicated he could not see the relevance of the evidence and eventually ruled that there should be no more investigation of the issue.

I cannot see how there could possibly have been any prejudice to the appellant by the delay in providing the defence with the DNA evidence. The evidence was before the jury and, insofar as there was anything to connect the gloves with the robbery, the DNA evidence did not indicate that the appellant had worn them. Defence counsel never asserted that the delay in providing the report did cause prejudice to the defence.

There was a miscarriage when the Judge refused to allow further cross-examination of Detective Selmes in relation to service of the brief of evidence

This complaint is connected with the preceding ground. As I have indicated, defence counsel objected to re-examination by the prosecutor of the detective about the delay in the provision of a report on the lack of the appellant's DNA being found in the glove. The Judge then raised the issue of the relevance of the evidence of the delay in the provision of the report even if the glove had been connected with the robbery. Defence counsel argued that the "jury have heard the obligation of the police to let people know certain things". He went on to complain that it was not only the DNA report that the defence were informed of late in the proceedings but they also received the statement of Sergeant Gooch (nee Cole) late.

The evidence of Sergeant Gooch is the subject of the next ground of appeal but in effect she gave evidence of an admission allegedly made by the appellant as to the Belconnen robbery during her course of dealing with him in her role as the custody officer.

The following discourse occurred between the Judge and the parties in the presence of the jury:

His Honour: Rather than trouble the jury with this matter is this the position, there was a buccal swab taken from the accused?

Defence Counsel: Yes.

Crown Prosecutor: Yes.

His Honour: There was a glove found at a garbage bin some days after one of the events. There was no profile found on the glove identified to any person and the accused's DNA was not matched to whatever was found on the glove, isn't that the end of the matter?

Crown Prosecutor: It also relates to the fact that the material provided to the defence acknowledged that before last week.

His Honour: Well I'm not going to allow any more questions on the point. The jury are aware of the point that's been raised by [defence counsel], it can be the subject of argument in due course.

The Crown then went on to ask questions of the officer about the statement of Sergeant Gooch. There was a further objection by defence counsel. The jury were asked to leave the courtroom. There was then a debate between the Judge and defence counsel about the fact that the defence had never received a statement from Detective Selmes of what he had been told by Sergeant Gooch as to the admission allegedly made to her by the appellant. The outcome of these discussions was that the Crown was not permitted to ask further questions about the production of the statement relating to DNA nor was the defence to ask the Detective about why he had not produced a statement about what he had been told by Sergeant Gooch. His Honour did not believe that they were matters relevant to be investigated before the jury but could be used by way of closing argument.

Detective Selmes' credit was not really in dispute, so any misconduct by him in not producing evidence was of no relevance. There was a dispute that the appellant had made any admission to Sergeant Gooch but that dispute could only marginally be advanced by any issue as to why Detective Selmes did not make a statement about what he was told by Gooch. She said she did tell Selmes and made a statement to that effect. Detective Selmes said she did tell him but he did not make a statement about what he was told. Defence counsel conceded that he was not going to suggest that Detective Selmes purposely withheld material so as to prejudice the defence (T606). This was, as the Judge pointed out, material for argument to the jury about whether Gooch should be believed.

I have difficulty in seeing how the appellant was prejudiced by the judge refusing to allow the Crown or the defence to investigate why documents had not been prepared or served on the defence. Detective Selmes may have had an explanation for why he did not make a statement about what Sergeant Gooch told him, but the situation was left with the jury aware that, although Sergeant Gooch reported to Selmes that the appellant had made an admission to her, he had never made a statement about that issue. The issue was really about the credibility of Gooch and not Selmes but defence counsel could make use of the fact that Selmes did not record what he was told.

In any event, confessions or admissions made by the appellant were not of great significance to the Crown case. As should be obvious by now, the Crown was relying upon tendency or coincidence evidence and general circumstances such as the finding of the Belconnen bank bags in the appellant's possession. The only admission of any significance was undisputed and that was that the appellant had committed the Mittagong offence. I do not believe that the conduct of the Judge in restricting the further questioning of Detective Selmes on late service of documents by both parties caused a miscarriage of justice.

The Judge erred in admitting evidence of alleged admissions made by the appellant to Sergeant Cole (Gooch)

On 23 April 2007, the Sergeant was rostered as custody manager at Goulburn Police Station. At about 7.20am she received the appellant into custody and read him Part 9 from the Law Enforcement (Powers and Responsibilities) Act (The LEPR Act). She spoke to the appellant again at 9.19am and informed him that she was waiting for his solicitor. She continued to have involvement with him including facilitating a meeting between the appellant and a Legal Aid solicitor, obtaining a buccal swab and providing him with a meal.

After the ERISP between Detective Selmes and the appellant concluded, the Sergeant performed the duty of asking the appellant the formal questions about whether he had any complaints about his treatment. It will be recalled that in this interview the appellant admitted having committed the Mittagong robbery but had refused to say anything about the other alleged offences. It will also be recalled that during the search of his premises the appellant appeared to admit to an offence at Belconnen when shown the cash bags from those premises.

After the ERISP interview Sergeant Gooch secured the appellant in the dock at 2.34pm and said to him, "Do you understand that you are going to be charged with several armed robbery offences?" The appellant responded, "Yes, I don't know about the others but I admitted to three. The two here and one in Canberra". The Sergeant said, "As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?" The appellant said, "Yes, I don't know why I did it".

Sergeant Gooch at some time later informed Detective Selmes of what the appellant had said. He did not consider it necessary to re-interview the appellant, because he had interviewed him about the New South Wales offences and he was not investigating the ACT offences. He made no note of what he was told but asked Sergeant Gooch to make a record.

The appellant indicated that he wished to be re-interviewed by police in September 2007 when he read from a prepared statement about the involvement of Buck or Michael O'Connor.

Defence counsel objected to the evidence of Sergeant Gooch principally on the basis that it was inadmissible pursuant to s 281 of the Criminal Procedure Act . That section is as follows:

281 Admissions by suspects

(1) This section applies to an admission:

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(a) there is available to the court:

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4) In this section:

"investigating official" means:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

" official questioning " means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

"reasonable excuse" includes:

(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

" tape recording " includes:

(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

The question for the Judge to determine was whether the questions asked by Sergeant Gooch were "official questioning" for the purposes of the section: that is were her questions " in connection with the investigation of the commission or possible commission of an offence"? This is a question of fact and, provided it was open to his Honour to have found as he did, that they did not fall within the scope of the section, this Court would not interfere in that finding; see R v Taouk [2005] NSWCCA 155; 154 A Crim R 69 .

In R v Naa [2009] NSWSC 851; 76 NSWLR 271; 197 A Crim R 192, I was concerned with the same question as a trial judge but in a completely different factual situation. However, during the course of my judgment I considered a line of authority dealing with sections similar to s 281 and dating from R v Horton (1998) 45 NSWLR 426 through to Carr v Western Australia [2007] HCA 47; 232 CLR 138. That review of authority of course included the two High Court decisions of Kelly v The Queen [2004] HCA 12; 218 CLR 216 and Nicholls v The Queen [2005] HCA 1; 219 CLR 196. I do not intend to repeat that review in considering this ground. A similar review of cases was considered by Buddin J in R v Armstrong [2010] NSWSC 483.

I am prepared to accept for the present ground of appeal that the Sergeant was "questioning" the appellant but I have grave doubts that she was. "Questioning" seems to me to be more than simply asking a person whether he understands information that has been conveyed to him. In reality the Sergeant was merely seeking to ensure that the appellant understood what was going to happen: that is that he was going to be charged "with several armed robbery offences". She was not seeking information but supplying him with information. What followed next was again providing the appellant with information: that she was going to refuse him bail and take him before a magistrate. Again the only question she asked was to ensure that he understood what he was being told. I do not believe that this is "questioning" in common parlance. It certainly does not appear to me to be "questioning" in terms of an investigation of an offence. I am prepared to accept that the section is protective legislation, as it was described in Horton at 23, and should not be read down so as to diminish its obvious beneficial effect on the rights of persons in custody. But nor should it be given an effect that was never intended by the legislature.

In R v Sharp [2003] NSWSC 1117; 143 A Crim R 344, I was required to make a ruling on the admissibility of unrecorded questioning. This was a decision made before any consideration had been given to the scope of such a provision by the High Court. During the course of the judgment I referred to the difficulty of determining what was "official questioning" for the purpose of a similar section now replaced by s 281. I used as an example of the difficulty in determining the scope of the provision just what happened in this particular case, that is questioning of a suspect by a custody manager fulfilling his or her duties under what was then Part 10A of the Crimes Act . I did not need to consider that issue further in that case. However, I did indicate that that some guidance had to be given to police as to what was "questioning" for the purpose of the section. I went on:

[20] I hesitate to attempt to give any more meaning to the words of the section than arise from the definitions contained in it and the policy behind the legislation. But the word used is "questioning" and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person's prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to "questioning" even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conversation into "official questioning" if it did not fall within the definition at the time the admission was made.

[21] I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned.

In Kelly v The Queen [2004] HCA 12; 218 CLR 216 the High Court was concerned with a statement made by a suspect about half an hour after a video-recorded interview had ceased and without any further questions being asked by the investigating police. The Court was concerned with a Tasmanian provision similar to that existing in this State. The majority of the Court was of the view that the section did not cover the statement because the "official questioning" had ceased. They stated (my underlining):

[52] The expression "in the course of official questioning" in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made "in the course of official questioning". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.

McHugh J was in the minority but he stated (my underlining):

[106] Given the purpose of the section, there is no difficulty in construing the words "confession or an admission ... made in the course of official questioning" as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section's preclusion to operate only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but it will be so related if it is made in response to an indication that the suspect is to be questioned . It borders on the absurd to think that s 8 does not apply to a confession or admission made immediately after the officer has said, "I want you to come to the station for questioning", but applies to a confession or admission made in answer to the officer's first question: "What can you tell me about the assault on X?" To so hold would make "a fortress out of the dictionary". It would treat the term "questioning" as a precise criterion of admissibility rather than as an element in a compound conception that is concerned to limit the admissibility of "police confessional evidence".

[107] In the present case, the alleged admission - if it was an admission, and I doubt that it was - was directly connected to the extensive questioning by the police officers that had occurred about an hour earlier. The Crown did not argue that it was not an admission. Because that is so, it was an "admission" to which s 8 applied. The learned trial judge should have rejected evidence concerning it.

The issue came before the High Court again in Nicholls v The Queen and Coates v The Queen [2005] HCA 1; 219 CLR 196 where the Court was concerned with similar legislation in Western Australia. However that legislation did not use the term "official questioning" and referred at times to an "interview". The issue was whether there was a reasonable excuse for not recording admissions allegedly made by a suspect during a break in an interview that was being recorded. McHugh J, who was in the majority in holding that the alleged statement was inadmissible, concentrated on the use of the term "interview" in the legislation. The other members of the Court were concerned with whether there was a reasonable excuse for failing to record the alleged admissions. There is little, if anything, in this decision that impacts upon the current issue.

In Carr v Western Australia [2007] HCA 47; 232 CLR 138 the High Court again returned to the Western Australian provision. The circumstances in that case vaguely resembled what occurred here. The police had formally interviewed the suspect but stopped when he indicated he wished to speak to his lawyer. The suspect was then taken to the lock up section of the police station where various formalities were undertaken because the suspect had to be returned to prison. He had not at this stage been charged with the offence for which he was being questioned. During these procedures the police asked the suspect questions for the purposes of police records. During this exchange the suspect introduced a wider conversation during which he made suggestions indicating his involvement in the offence for which he was under investigation. The police responded by asking questions about the offence and as a result the suspect made admissions. The conversations were recorded by fixed cameras and microphones in the lock up.

There were three chief arguments ventilated in the High Court to support the contention that the recording of the admissions should have been rejected. There were largely based upon the wording of the particular legislation and particularly its use of the word "interview". The challenge that the conversation between the appellant and the police was not an "interview" was rejected. As was a contention that an interview could not be recorded without the suspect's consent. The third argument that there was no reasonable excuse for not holding a formally recorded interview was also dismissed.

Gleeson CJ, who agreed with the joint judgment of Gummow, Heydon and Crennan JJ dismissing the appeal, stated (footnotes omitted and my underlining):

[4] The appeal to this Court turns entirely upon questions of statutory construction. To the extent that s 570D is to be understood and applied in the context of common law principles, one of the relevant common law principles is that there are discretionary grounds, related to considerations of fairness and public policy, upon which a trial judge may reject evidence of admissions made by a person suspected of crime. Section 570D did not displace that principle, but provided an additional, statutory, ground of mandatory exclusion in specified circumstances. If the facts of a given case do not fall within the specified circumstances, the common law grounds of exclusion, including discretionary grounds relating to fairness and public policy, remain.

[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v R . It was also discussed, in relation to a similar legislative scheme, in Kelly v R . It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

..................

[7] As explained in Kelly and Nicholls , the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?

The terms of s 281 are similar to those that were considered by the High Court in Kelly and this Court should follow the majority in that decision. There is nothing in Nichols to overturn the interpretation of "in the course of official questioning" as defined in Kelly , being the formalised interview that had occurred before the appellant was delivered to the Sergeant in her role as custody manager. Sergeant Gooch was only an "investigating official" because she was a police officer. She was not involved in the investigation in any way. That is why she was brought in to ask the formal questions at the end of the recorded interview. Her only other involvement with the appellant was as the custody manager who had certain duties imposed upon her under the relevant Act. Part of those duties are set out in s 122 of the LEPR Act which is, in effect, to ensure that the person is aware of his or her rights. Although not required by the Act, it was consistent with her functions that she informed the appellant of the procedures that were to occur and to ensure that he understood them.

It was clear that the investigation was over at least so far as the appellant was concerned. The Sergeant informed him that he was going to be charged and that she was going to refuse bail. The conversation that she had with the appellant in that regard cannot in my view be considered to be "questioning... in connection with an investigation of the commission.... of an offence".

In Naa I stated:

77 Although, as James J noted, the words "in connection with an investigation" are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words "official questioning" would arise whenever a police officer is questioning a person who is, or ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp , that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation. As Gleeson CJ stated in Carr :

The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?

In my opinion, not only was it open for the Judge to find that the conversation between Sergeant Gooch and the appellant fell outside the scope of the section, that was the only finding he could have reasonably made.

The Judge considered other provisions of the Evidence Act concerned with the admissibility of admissions but found no reason to exclude the alleged admissions. I can see no error in the way he approached those provisions or the decision not to exclude the admissions.

The Judge erred in failing to direct acquittals on counts 1 and 7 on the indictment

At the end of the Crown case defence counsel made an application that the Judge direct acquittals on the first count, the armed robbery of Hungry Jack's at Marulan on 29 April 2006 and the 7 th count being the armed robbery of the Moss Vale Services Club on 9 April 2007.

It must be said that these were the weakest of the cases brought by the Crown chiefly because there was no CCTV footage in respect of them. Further, there was inconsistent evidence in the first count about the nature of the weapon and the evidence of the robber having a foreign voice. In the 7 th count the premises robbed were not fast food premises and so there was that inconsistency with the other counts.

Of course the application had to be considered taking the Crown's case at its highest and it was not open to the Judge to direct an acquittal simply because he regarded any verdict as being unsafe.

One of the difficulties throughout the addresses both on this application and to the jury was that there was no transcript of the trial that had taken about two weeks with a large number of witnesses. So both counsel and the judge were relying upon their notes of the evidence. This, it will be seen, has resulted in further complaints based upon misstatements of the evidence of particular witnesses.

The Judge gave a lengthy and careful judgment on the application. He explained the principles he was to apply in detail and, with respect, absolutely correctly. He summarised the evidence on each of the two counts in detail, noting the divergent evidence on some issues. He does not consider the two offences in isolation but in the circumstances of all the offences charged. He also noted that a description given of the coat worn by the robber in count 1 was similar to that found in the possession of the appellant during the search of his premises.

In my view there was ample evidence to require that count 1 be left to the jury simply by a comparison of the description of the robber in counts 1, 2 and 3. The was evidence upon which the jury could find that in each case the robber was armed with a single-barrel sawn-off shotgun, disguised with a balaclava and wearing sunglasses. Each of the premises chosen was a fast food outlet operating at a time when service had either finished or not commenced.

Similarly in my opinion the Judge was correct to leave count 7 to be determined by the jury. Again the judge carefully analysed the evidence of the commission of the offence, not just by itself, but having regard to other evidence that the jury would have before it in relation to the other counts and the three additional offences. The Judge had regard to the proximity in time of the offences at Mittagong and Belconnen with the 7 th count. The jury were entitled to compare the descriptions given of the robber with those from other counts, in particular the fact that the robber wore a similar balaclava, and carried a backpack of a similar description to that found in the appellant's possession on his arrest. At least two of the witnesses described the weapon as a single-barrel shotgun. Although the premises were different from the others, the offence occurred after service was finished.

The counts were properly left before the jury and it was open to them to find the appellant guilty of each of the offences beyond reasonable doubt.

Further misdirections by the prosecutor, defence counsel and judge

1. The prosecutor misled the jury when detailing the evidence of Ms Ryman's description of the motor vehicle in Count 6

The prosecutor said in his closing address in relation to the observations of vehicles by a number of witnesses:

..............At McDonald's South Goulburn, one of the witnesses described seeing a light or creamy coloured four wheel drive parked outside. It cannot be said for certain if these vehicles that were described were involved but again it's just another piece of the jigsaw and you don't need every piece of the jigsaw to see what the ultimate picture is.

The evidence given by Ms Ryman in relation to count six was that she arrived on the date in question at McDonald's about 4.45am She was then asked (T 211):

Q. Where did you park?

A. At the far end of the car park.

Q. This is the McDonald's car park?

A. Yes.

Q. And when you got out of your car, did you see any vehicles there that you didn't recognise?

A. Yet, I saw a few. One that stuck out was a four wheel drive.

Q. Can you describe the colour of it?

A. It was like a creamy light beige kind of colour.

Q. And can you give any more description of that vehicle, its shape, or whether it was a - what type of vehicle it was?

A. Well, it was a four wheel drive. I'd say it was probably less than five years old and it had liked a curved back.

Q. When you say a curved backed what does that mean?

A. With the jeeps they have got like a flat back but it was curved at the top like towards the boot.

Q. So did know what the back of the vehicle was made from?

A. No, not too sure.

Q. You can't describe it by the brand, or the model, or anything of that nature?

A. No, I didn't see the front or the back.

The Crown prosecutor's description of the vehicle seen by the witness was not misleading. He was indicating that the vehicles, to which he had been referring, might not have been involved in any of the incidents. But one of the factors he was asking the jury to take into account was that at least the colour of the vehicles was somewhat similar to that of the appellant's vehicle. But he was not indicating that it definitively was the appellant's vehicle or that it matched the description other than the colour. The description of Ms Ryman was very vague. In any case this was a very limited and insignificant part of the Crown's evidence.

It was up to defence counsel to point out to the jury the discrepancies between the description given by Ms Ryman and the actual appearance of the appellant's vehicle. Even if he did not do so, this is not a matter that could have given rise to a miscarriage of justice. However, I note that Ms Ryman was never shown a photograph of the appellant's vehicle by defence counsel for understandable tactical reasons.

2. The prosecutor misled the jury in his closing address in dealing with evidence of the alleged admission of the Belconnen robbery during the video of the search.

The complaint is that the prosecutor misled the jury by stating that the police officer clearly identified the bag stolen from the Belconnen McDonald's prior to the appellant saying "I admit to that one".

This was merely a submission to the jury as to what they would make of the video that was in evidence before them. Defence counsel had the opportunity to make a contrary submission, if he saw fit. In any event this was a very minor part of the prosecution case because it was not based upon the appellant's admissions of offences other than that on McDonald's at Mittagong.

There was no miscarriage in anything said to the jury by the prosecutor in this regard.

3. Defence counsel erred in telling the jury that the appellant said, "Yeah, Belconnen, I've admitted to that"

Defence counsel misstated the evidence by using the word "Belconnen" in the quote from the video of the search of the appellant's premises. But it was obvious from his address that counsel was vigorously disputing that the appellant admitted to the Belconnen robbery. The passage in full from his address was:

.............There is one thing he said at the search thing he'd been up - and he said, "Yeah, Belconnen I've admitted to that" but where. I've admitted, past tense. "You admit to that?" "I've admitted to that" He says to you - and you see it, the policeman says something. You might think as the Crown says that at the time he's surprised, he might have been in a bit of a chock and he said he was talking just for the other bags, the Mittagong bags.

It is clear that, apart from the slip in using the word "Belconnen", defence counsel was making the point that the jury could not be satisfied that the appellant was admitting to the Belconnen robbery and may have simply been confused and was referring to the Mittagong robbery. The jury had the video and they would clearly have had regard to it in determining whether the appellant was admitting to the robbery at Belconnen or not. In any event, as I have pointed out on a number of occasions, the alleged admissions, apart from the Mittagong robbery, had a very limited part to play in the prosecution case.

There was no miscarriage arising from what defence counsel had said.

4. The Judge made an error in his summing up when dealing with the alleged admission to the Belconnen robbery in the video of the search

The relevant passage of the summing up is as follows:

You may think that people do not usually make admissions unless they are true, but there may be situations where a person would do so. The accused has told you that he was telling lies when he made admissions in the first interview and that he was attempting to set matters right in the second interview. His explanation as I recall was in terms that he was protecting those who are actually involved.

The recording of the search in which that conversation was captured shows that the police officer placed before the accused the plastic bank bag from the McDonald's restaurant at Belconnen and that he identified it as such. As I recall the evidence the police officer displayed to the accused a plastic bank deposit bag and referred to its source as Belconnen McDonald's whereupon the accused said, "Yeah, I've admitted to that one" it sounded to me as though the police officer said something to the effect of, "You will admit that one?" and the accused said, "I've admitted to that".

It is for you to listen and to watch that tape or that recording for your understanding of what was said. In respect of this conversation, although the accused agrees that he said this he has told you that he was mistakenly responding to what he thought was a question regarding the Mittagong McDonald's, for he also had a bank bag from that restaurant beneath his bed with the other items that were found there.

The representation he made refers to one matter and I will repeat it. He said, "Yeah, I've admitted to that one" and then, "I've admitted to that".

The complaint is that the Judge misrepresented the evidence because the police officer did not use the word "Belconnen". There was no transcript of the video and neither party invited this Court to watch it. However, in his judgment of 19 August 2008 given after the parties and his Honour had listened to the tape on at least two occasions, the Judge refers to the police officer having mentioned the word "Belconnen". During argument about the admission of this part of the interview defence counsel states, "My note is, the detective says, 'We have a bag here relating to Belconnen McDonald's, a cash deposit bag'". Later defence counsel agrees with the Judge that the police officer says, "this is from McDonald's Belconnen" (T 370).

It seems clear that his Honour correctly summarised the evidence on the tape. In any event, the jury had it before them and had been encouraged to play it and listen to what was said.

5. The Judge made an error in his summing up in stating that in relation to counts 8 and 9 the appellant was found near Hungry Jack's Queanbeyan at 3am

This was an obvious error by the Judge as the time at which the appellant was seen and arrested near the Hungry Jack's premises was 4.20am. The error was not corrected by either counsel and this was no doubt because it was completely irrelevant to the Crown's proof of counts 8 and 9 whether the appellant was there at 3am or 4.20am. In fact the Crown's allegation that the appellant was waiting for staff to arrive so that he could rob the premises was less likely if the appellant had been arrested at 3am rather than 4.20am. This was a completely irrelevant slip as the whole case was whether the appellant was at that place intending to commit a robbery on the premises or whether there was the reasonable possibility that he was there to return property to Buck. The jury clearly dismissed the latter possibility.

6. The Judge erred in summing up to the jury on the evidence of Ms Hubbard

Ms Hubbard was a witness to count 1. The complaint arises from the following passage of the summing up where his Honour was making comparisons between the evidence given on various topics, such as age and build as given by the witnesses in the various counts. When speaking about descriptions of the offender's skin colour he said:

Alison Hubbard, in count 1, described white skin exposed where the hands were on the gun as she saw it.

His Honour then goes on to refer to a number of witnesses in other counts describing the offenders skin as being fair or white.

Although Ms Hubbard did indicate that she could see exposed skin on the offender's hands where he was holding the gun, she never said, and was never asked, the skin's colour.

The appellant notes that the jury were having some difficulty in deciding this count as was made clear from a letter they sent to the Judge. The argument is that this error may have resulted in a miscarriage on count 1 especially in light of the suggestion by two witnesses that the robber spoke in a foreign accent, either Indian or Ukrainian.

In light of the overall evidence as discussed in relation to the earlier ground that a directed verdict should have been ordered on count 1, I do not believe that such a slight error of fact could have caused a miscarriage of justice. If it had been as important as the appellant now submits, it should have been raised by his counsel and could have easily been corrected.

This is a rule 4 point and I am not persuaded by the appellant that this error of fact in light of the whole of the evidence pointing to the guilt of the appellant on count 1 has led to the possibility of a miscarriage of justice.

7. The Judge made an error in his summing up in relation to the evidence of Danielle Ryman

This complaint is an error of omission in relation to the description given by Ms Ryman of the vehicle she saw in relation to count 6. The evidence is set out above in paragraph 161 in relation to a complaint on the same subject in respect of the Crown's address.

His Honour was summarising the evidence about vehicles given by witnesses in the various counts. He said:

Count 6 Danielle Ryman said there was a 4-wheel drive, creamy white/beige colour less than 5 years old.

The appellant complains that his Honour should have gone on to say that she thought that it was curved back towards the boot and that this was inconsistent with his vehicle.

As I have noted earlier, this was a very minor part of the evidence, and even if the vehicle seen by Ms Ryman did not match exactly the description of the appellant's vehicle, this was a matter of little weight in light of the other evidence indicating that the appellant was the robber. That this was not a matter of any great moment at the trial is indicated by the fact that the appellant's counsel did not ask his Honour to add the additional description. I am not satisfied that the Judge in failing to say anymore about the description given by Ms Ryman of the motor vehicle she saw led to a miscarriage of justice.

In my opinion the overall Crown case was overwhelming. There is nothing to show that the appellant's counsel was in any way incompetent but, to the contrary, he took every point that was open to him by way of objection to evidence on proper grounds. Omissions by him to seek redirections on small factual matters indicate to me that, in the context of the evidence as a whole, they were not of any great significance.

In my opinion none of the complaints of the appellant, insofar as they may have any merit at all, either considered individually or taken as a whole resulted in a miscarriage of justice. I propose that the appeal be dismissed.

*******

Decision last updated: 02 March 2011

Medium Neutral Citation:	Bryant v R [2011] NSWCCA 26
Hearing dates:	15 November 2010
Decision date:	02 March 2011
Before:	McClellan CJ at CL at 1; Simpson J at 2; Howie AJ at 3
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal against conviction - whether error in not ordering separate trials - whether error in admitting evidence of offences not on indictment - whether error in leaving all counts for the jury to determine - whether miscarriage resulting from submissions by prosecutor or errors of fact by trial judge EVIDENCE - whether evidence in support of some counts and offences not on indictment admissible as tendency or coincidence evidence - whether evidence of confessional statements to custody manager admissible under s 281 of Criminal Procedure Act 1986 - whether in the course of "official questioning" - whether "in connection with the investigation" of an offence
Legislation Cited:	Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Carr v Western Australia [2007] HCA 47; 232 CLR 138 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Nicholls v The Queen; Coates v The Queen [2005] NSWCCA HCA 1; 219 CLR 196 O'Keefe v R [2009] NSWCCA 121 R v Armstrong [2010] NSWSC 483 R v Bryant [2008] NSWDC 346 R v Horton (1998) 45 NSWLR 426 R v Naa [2009] NSWSC 851; 76 NSWLR 271; 197 A Crim R 192 R v Sharp [2003] NSWSC 1117; 143 A Crim R 344 R v Taouk [2005] NSWCCA 155; 154 A Crim R 69 R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Category:	Principal judgment
Parties:	Nathan Gordon Bryant (Appellant) Regina (Respondent)
Representation:	Counsel: In person (Appellant) J Pickering (Respondent) Solicitors: Not applicable (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
File Number(s):	2007/8758
Decision under appeal	Citation: R v Bryant [2008] NSWDC 346 Date of Decision: 2008-12-17 00:00:00 Before: Bennett DCJ File Number(s): 2007/8758