Can v The Queen

[2007] NSWCCA 176

New South Wales
Court of Criminal Appeal

CITATION:	Can v R [2007] NSWCCA 176
HEARING DATE(S):	02/05/07, 07/06/07
JUDGMENT DATE:	27 June 2007
JUDGMENT OF:	Giles JA at 1; James J at 2; Harrison J at 167
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - identification evidence - photographic identification - com-fit photos - verdict not unreasonable
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act Criminal Appeal Act Evidence Act
CASES CITED:	Fleming v The Queen (1998) 197 CLR 250 House v The King (1936) 55 CLR 499 Jones v The Queen (1997) 191 CLR 434 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Blick (2000) 111 A Crim R 326 R v Henry [1999] 46 NSWLR 346
PARTIES:	Vural Can v R
FILE NUMBER(S):	CCA 2006/2741
COUNSEL:	Self-represented (Appl) R Herps (Resp)
SOLICITORS:	Self-represented (Appl) Director of Public Prosecutions (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/44/1400
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	15/02/06

2006/2741

GILES JA
JAMES J
HARRISON J

WEDNESDAY 27 JUNE 2007

Vural Can v R

Judgment

1 GILES JA: I agree with James J.

2 JAMES J: Vural Can appealed against his conviction after a trial in the District Court before his Honour Judge Sorby and a jury on one count of robbery in company with wounding, an offence against s 98 of the Crimes Act. Judge Sorby sentenced the appellant to a term of imprisonment of eight and a half years with a non-parole period of five and a half years commencing on 27 December 2007. In the event of his appeal against conviction being dismissed, the appellant applied for leave to appeal against sentence.

3 The offence of robbery in company with wounding of which the appellant was convicted was, according to the Crown case, committed on 4 June 2002. However, the appellant’s trial before Judge Sorby did not take place until late 2005 (25 October 2005 – 1 November 2005). In making the sentence he imposed commence on 27 December 2007, Judge Sorby had regard to another sentence for an unrelated offence that the appellant was serving.

4 There had been an earlier trial of the appellant on the present charge in March 2005 before his Honour Judge Graham and a jury. However, this trial had been aborted, after the appellant discharged his counsel at that trial.

5 The appellant was represented by counsel throughout the trial before Judge Sorby. However, he was not legally represented on this appeal, preparing his own written submissions and making his own oral submissions to the Court.

The Crown case at the trial

6 The Crown case at the trial was that the appellant was one of two offenders who on 4 June 2002 robbed a firm named Nine Star Trading of a quantity of diamonds and a man named Mihir Ghandi of two mobile telephones, wounding Mihir Ghandi.

7 The principal Crown witness at the trial was Mr Ghandi and I will briefly summarise some of his evidence.

8 In June 2002 Mr Ghandi was working as a diamond grader for Nine Star Trading, a firm of wholesale diamond merchants. Nine Star Trading carried on business in an apartment on the thirty-third level of a building in Castlereagh Street in the city of Sydney. I will refer to this apartment as “the business apartment”. Mr Ghandi lived in an apartment on the fourteenth level of the same building (“the home apartment”). Mr Ghandi’s immediate superior was a man named Paul Madziar. Diamonds were kept by the business in a safe in the business apartment, to which Mr Ghandi had a key.

9 On the morning of 4 June 2002 Mr Ghandi returned to the building in Castlereagh Street, after making a delivery to a customer.

10 When Mr Ghandi got out of the lift on the thirty-third level of the building, he saw two men standing outside the door of the business apartment. One man, who Mr Ghandi referred to in his evidence as “the first man” was carrying an iron bar. The other man, who Mr Ghandi referred to in his evidence as “the second man” was carrying a small handgun. The second man was wearing a black leather jacket.

11 It was the Crown case at the trial that the appellant was the second man. The Crown said that the first man was a man named Fabian Mariconte, who in fact pleaded guilty to the same charge as that brought against the appellant and who had been sentenced by another District Court judge, his Honour Judge Solomon, before either of the appellant’s trials.

12 Mr Ghandi said that the two men standing outside the door of the business apartment grabbed him. The second man threatened to shoot him. There was a physical struggle and Mr Ghandi fell to the floor. Mr Ghandi dropped the bag he was carrying and also dropped a bunch of keys. The second man hit Mr Ghandi on the face and picked up the keys he had dropped. The second man dragged Mr Ghandi to the door of the exit to the fire stairs in the building, opened the door and dragged Mr Ghandi on to the fire stairs. Mr Ghandi was forced to sit down on a step of the fire stairs. Both the two men put gloves on their hands.

13 The first man produced some ropes and the second man tied Mr Ghandi’s ankles and hands. The second man took the two mobile telephones Mr Ghandi was carrying. The second man put part of the iron bar under Mr Ghandi’s chin and demanded to know where the diamonds were. Mr Ghandi said that the diamonds were in the safe in the business apartment and that the key to the safe was in the bunch of keys Mr Ghandi had dropped.

14 The first man, who now had the handgun, asked the second man whether he should shoot Mr Ghandi but the second man replied “No”.

15 The second man asked Mr Ghandi whether there was anyone inside the business apartment and Mr Ghandi answered “No”. The second man said that he would go inside the business apartment and that, if the key did not open the safe, he would come back and shoot Mr Ghandi.

16 The second man left the fire stairs. The first man remained with Mr Ghandi on the fire stairs. Mr Ghandi started crying. He was conscious that he was bleeding from wounds to his face.

17 After a time the second man returned. He gagged Mr Ghandi with a piece of cloth and tied Mr Ghandi up further with more ropes. The second man then walked away down the fire stairs. The first man told Mr Ghandi not to try to escape and then himself walked down the fire stairs. This was the last that Mr Ghandi saw of either of the two men.

18 Mr Ghandi waited a few minutes and then succeeded in freeing himself from the ropes. He went to the home apartment and telephoned Mr Madziar.

19 Mr Ghandi gave further evidence, to some of which I will refer later in this judgment.

20 Other witnesses in the Crown case at the trial included three police officers, Detectives Gibson, Waites and Huntley. Detective Gibson was the police officer-in-charge of the investigation into the robbery.

21 At the trial the Crown sought to establish that the appellant was the second man referred to by Mr Ghandi in his evidence, by evidence of an identification by Mr Ghandi of a computer image of the appellant as being an image of the second man, by what was submitted to be a resemblance to the appellant of a com-fit picture of the second man prepared by police on the basis of information supplied by Mr Ghandi and by evidence that one of the mobile telephones which had been taken from Mr Ghandi had been used after the robbery with a SIM card in the name of Mustafa Sasi, which the Crown alleged was an alias of the appellant. The Crown also relied on evidence of a use of the SIM card in the city, near the apartment building, at 10:18 on 4 June 2002.

The appellant’s case at the trial

22 The appellant did not give evidence at the trial and did not call any evidence.

Grounds of appeal against conviction

23 The grounds of appeal against conviction were:-

1. The trial judge erred in allowing evidence of photo array.

2. The trial judge erred in allowing a com-fit photo.

3. The trial judge erred in admitting irrelevant evidence being the telephone records of Mustafa Sasi.

4. The trial judge erred in allowing hearsay evidence to be given by Detective Gibson on behalf of Vodafone.

5. The verdict of guilty was unsafe and unsatisfactory.

6. Fresh evidence.

7. The trial judge erred in his directions to the jury.

24 The sixth ground of appeal was abandoned by the appellant.

25 In addition to these grounds of appeal, the appellant also lodged a document with this Court setting out a number of “supplementary” grounds of appeal.

26 As I have previously noted, the appellant was not legally represented on this appeal, preparing his own written submissions and making his own oral submissions. In his written and oral submissions the appellant demonstrated a good command of English and a very detailed knowledge of the facts of the case. His submissions were put forcefully.

27 The appellant, not being a lawyer, had an understandable tendency to seek to base a number of his submissions on documents which had come into existence in the course of the criminal proceedings against him, such as witness statements, evidence given in committal proceedings and evidence given in the trial before Judge Graham, but which had not been admitted into evidence in the trial before Judge Sorby.

28 When this problem with some of his submissions was pointed out to the appellant on the first day of the hearing of the appeal, the appellant sought to tender a number of these documents in the appeal. The Crown prosecutor, in deference to the appellant not being legally represented, did not object to the tender of the documents and this Court, also mindful that the appellant was not legally represented, admitted the documents into evidence on this appeal, without requiring the appellant to establish that the conditions for the admissibility of fresh evidence had been satisfied.

29 A consequence of the latitude extended to the appellant was that there was a substantial amount of new evidence before this Court, which was not before Judge Sorby and the jury at the trial and which complicated the determination of some of the grounds of appeal.

30 Even after the documents which were tendered by the appellant were admitted into evidence, there were still a number of documents referred to in the appellant’s submissions, which had not been admitted into evidence at the trial and had not been admitted into evidence in the appeal.

31 I will now deal in turn with the grounds of appeal against conviction.

1. The trial judge erred in allowing evidence of photo array.

32 In his statement and in his oral evidence Mr Ghandi described the second man as Caucasian, with fair skin, about 5’8” tall, having a solid build, in his mid-30s, with a sharp nose and a slight beard growth, wearing a black leather jacket and with a woollen beanie on the top of his head, leaving his face visible. In his evidence Mr Ghandi often referred to the second man as “the man in the black leather jacket”.

33 On 10 September 2003, that is about 15 months after the robbery, Mr Ghandi, as part of the police investigation, viewed on a computer successive colour images of 12 men, an image of the appellant being the fifth to be presented (“image number 5”). Mr Ghandi selected image number 5 as being an image of the second man in the robbery.

34 Photographs of the 12 images viewed by Mr Ghandi became exhibit 5 at the trial. Black and white copies of the photographs in exhibit 5 were before this Court.

35 Police recorded the process of identification carried out on 10 September 2003 in a video/audio recording and this recording became exhibit 4 at the trial. However, exhibit 4 was not before this Court, so that this Court has not seen or listened to the recording.

36 The evidence about the identification made by Mr Ghandi on 10 September 2003 can be referred to, conveniently if not entirely accurately, as “the evidence of photographic identification” and I will so refer to it in this judgment.

37 The admissibility of the evidence of photographic identification had been challenged at the trial before Judge Graham, on the ground that any probative value it had was outweighed by the danger of unfair prejudice (Evidence Act s 137). A voir dire inquiry was conducted and Judge Graham gave a judgment in which he concluded that the evidence of photographic identification was admissible.

38 A voir dire inquiry to determine the admissibility of the evidence of photographic identification was also held at the trial before Judge Sorby. Documents which became exhibits in the voir dire inquiry before Judge Sorby but which are not before this Court include a transcript of the voir dire inquiry held before Judge Graham and a transcript of evidence given in the committal proceedings against the appellant on 16 November 2004.

39 Judge Sorby held that the evidence of photographic identification was admissible, its probative value outweighing any prejudicial effect it might have. His Honour referred to Judge Graham’s judgment, which had became available to Judge Sorby during the voir dire hearing, and said that he agreed with Judge Graham’s conclusion.

40 In his judgment Judge Sorby referred to a submission by counsel for the appellant that an examination of image number 5 revealed the collar of a black leather jacket and that that circumstance could explain why Mr Ghandi had identified image number 5 as being an image of the second man, the second man having been repeatedly described by Mr Ghandi as “the man in the black leather jacket”. Judge Sorby considered that some other images in the array showed men with collars and it was not clear that it was a partial revelation of a collar in image number 5 which had caused Mr Ghandi to select image number 5.

41 On this appeal a number of submissions were made by the appellant in support of this ground of appeal, including the following:-

(1) On 4 June 2002 Mr Ghandi’s ability to observe the offenders would have been impaired by his emotional state of fear, by the blows he had received on his head and by the instructions, which he agreed he had been given and which he had complied with, to keep his head down.

(2) There were deficiencies in the array of images which Mr Ghandi had viewed. A number of arguments were put.

As already noted, Mr Ghandi, in his original statement to the police and in his evidence, had repeatedly referred to the second man as “the man in the black leather jacket”.

The image of the appellant which was included in the array had been taken by police on 27 August 2003. The appellant asserted that on that occasion police had dressed him in a black leather jacket and the image of the appellant which Mr Ghandi had viewed on 10 September 2003 had shown him wearing the black leather jacket. The appellant asserted that police had subsequently tampered with the image (“chopped” it) by removing most of the part of the image showing the black leather jacket.

It was submitted by the appellant that, notwithstanding the tampering by police, a close inspection of the photograph of image number 5 still revealed part of the collar of a black leather jacket.

It was submitted by the appellant that a further deficiency in the array of images was that it included at number 6 an image of a man names Saffo. Mr Saffo lived in the same building as Mr Ghandi and was known to Mr Ghandi. He was also regarded by police as a suspect. The appellant submitted that the image of Mr Saffo had been placed in the array, next to the image of the appellant, as a “marker”, so as to attract Mr Ghandi’s attention to the image of the appellant.

It was further submitted that the appellant had described the second man in his statement and in his evidence as having a “sharp” nose. It was submitted that a number of images in the array were of men not having “sharp” noses but wide or even broken noses.

(3) Mr Ghandi made the identification about 15 months after the date on which the crime was committed.

In identifying image number 5 as being an image of the second man Mr Ghandi went from initially not being sure to being progressively more confident and then to being completely confident.

42 I do not consider that this ground of appeal should be upheld.

43 The ruling made by the trial judge in applying s 137 of the Evidence Act was that the probative value of the evidence of photographic identification by Mr Ghandi was not outweighed by the danger of unfair prejudice to the appellant. Such a ruling, while it does not involve the exercise of a discretion, is, for the purposes of appellate review, analogous to an exercise of a discretion. See R v Blick (2000) 111 A Crim R 326 per Sheller JA at [19]. As such, the ruling could be reviewed only in accordance with the well-known principles stated in House v The King (1936) 55 CLR 499 at 504-505. In my opinion, the trial judge has not been shown to have erred, within the principles stated in House v The King, in ruling that the evidence of photographic identification was admissible.

44 Although I have held that the trial judge did not make any error, I will myself consider the merits of the appellant’s submissions.

45 Whatever emotional state Mr Ghandi was in on 4 June 2002 and whatever injuries he suffered, he had the opportunity, for a number of minutes at very close quarters and in an apparently good light, to observe both of the offenders, their faces not being covered. It is clear from Mr Ghandi’s account of what happened on 4 June 2002 that he was not looking down all the time.

46 There was no evidence at the trial or in the appeal to support the appellant’s assertions in his submissions that on 27 August 2003 police had dressed him in a black leather jacket and that subsequently police had tampered with the image taken on 27 August 2003.

47 There are suggestions in the transcript of the trial that the photographs of the images which became exhibit 5 were slightly smaller in scale than the images Mr Ghandi had viewed on 10 September 2003. There was, however, no evidence or even any suggestion that the photographs differed, in any other respect, from the images Mr Ghandi had viewed.

48 When the photographs were tendered at the trial, counsel for the appellant at the trial said:-

“I have no objection. I am not sure it is the same size as that which this witness (Mr Ghandi) observed at close quarters. I think it looks a bit smaller but as a depiction per se of what was shown, I have no objection”.

49 In the cross-examination of Mr Ghandi at the trial the following question and answer occurred:-

“Q. And these photos are precisely what you saw in slightly larger scale on 10 September?
A. Yes.”

50 If the police had engaged in the conduct alleged by the appellant, their conduct would have been grossly improper. At the trial it was not put or suggested to any of the police witnesses that police had acted as the appellant in his submissions on the appeal alleged they had acted.

51 It is true that in the cross-examination of Mr Ghandi the following question and answer occurred:-

“Q. Number 5 appears to be wearing, doesn’t he, a leather jacket? The collar of a leather jacket with a blue shirt or garment underneath, that’s what it looks like; have a look?
A. Yes. Actually I’m just seeing that now.”

52 Although Mr Ghandi agreed with this leading question put to him in cross-examination, I consider, having myself inspected photograph number 5, that it is not really possible to say that the quite tiny amount of a collar, which is the only part visible of the garment the appellant was wearing on 27 August 2003, was the collar of a black leather jacket. Mr Ghandi himself gave evidence that on 10 September 2003 he had not taken any notice of the collars persons were wearing and had made his identification on the basis of the facial features.

53 I accept that an image of Mr Saffo should not have been included in the array. Mr Saffo was known to Mr Ghandi. If Mr Saffo had been one of the offenders, he would have been immediately recognised by Mr Ghandi. Hence, the inclusion in the array of an image of Mr Saffo had the effect of reducing the number of images which might be images of the offender to 11. This was, however, still a substantial number.

54 The submission that the inclusion of the image of Mr Saffo had the purpose and the effect of attracting Mr Ghandi’s attention to the image of the appellant seems to me far-fetched.

55 I have myself inspected the noses in the photographs forming exhibit 5 and have concluded that the differences in the appearances of the noses are only slight.

56 It is correct that more than 15 months had elapsed between the date of the robbery and the date of the photographic identification. In his judgment Judge Sorby expressly referred to this matter and in his summing-up his Honour expressly referred the jury to this matter.

57 With regard to the stages in his identification on 10 September 2003 of image number 5 as being an image of the second man, Mr Ghandi gave the following evidence:-

“Like first time: yes, this is the man. Second time I get more convinced. Third time I get a 100%, you know. The steps, the more you see, the more you’re convinced. The first time also I was: yes, this is the man. I was not “maybe this man or this man”. No. Like first time I saw: yes. But after so many times, so long period in between, I was doing something which, like I was pointing on somebody. I considered myself very responsible to do that. I didn’t want to make any mistake in any situation…”

58 The jury had the advantage of being able to see and listen to the video/audio recording of the process of identification carried out by Mr Ghandi on 10 September 2003 and hence were able to assess for themselves how convincing Mr Ghandi’s identification was.

59 The actual decision in Blick can readily be distinguished from the present case. In Blick the offender had a goatee beard and in the array of photographs shown to the witness only the photograph of the offender showed a goatee beard. In addition, the photograph of the offender was of a different size and shape from that of the other photographs in the array.

60 I would reject the first ground of appeal.

2. The trial judge erred in allowing a com-fit photo

61 Mr Ghandi and Constable Huntley gave evidence about the compiling of a com-fit picture of the second man in the robbery.

62 Mr Ghandi was shown a book containing many pictures of particular parts of the human face. For each part of the face Mr Ghandi selected the picture which he considered was the closest to being a representation of that part of the face of the second man. An image of a full face incorporating all of the parts selected by Mr Ghandi was prepared (“the first image”—“release 1”).

63 Mr Ghandi suggested changes to release 1, which Constable Huntley noted in handwriting on release 1, and a further image was prepared incorporating these changes (“the second image” — “release 2”).

64 Mr Ghandi suggested further changes, which Constable Huntley noted in handwriting on release 2, and a further image incorporating these changes was prepared (“the third image” — “release 3”).

65 All three images were admitted at the trial as exhibit 3.

66 Constable Huntley gave part of her evidence by reading, without any objection, a statement she had made. In her statement she said that the com-fit images had been prepared on various dates specified by her between 6 June 2002 and 11 June 2002.

67 At the trial there was no objection by counsel for the appellant to any of the evidence relating to the compiling of the com-fit images or to the tender of the three com-fit images. Indeed, counsel for the appellant at the trial said that he had no objection to the images being immediately admitted, after they had been identified by Mr Ghandi in giving his evidence, even though the first two releases had handwriting on them by Constable Huntley, who had not yet given her evidence.

68 As there was no objection at the trial to the admission into evidence of the com-fit images, r 4 of the Criminal Appeal Rules applies.

69 A number of submissions were made by the appellant about the com-fit images.

70 Mr Ghandi made a supplemental statement on 3 May 2004, in which he referred to the compiling of the com-fit images and to which a copy of release 3 was annexed. In paragraph 7 of the supplementary statement Mr Ghandi said that he could remember assisting police in compiling the image which was release 3, on the same day that he had made his first statement, that is 6 June 2002. In fact, he had assisted police in compiling the com-fit images over the period from 6 June 2002 to 11 June 2002.

71 The appellant submitted that there were contradictions in witness statements and in evidence concerning which com-fit images had been released to the media and on which dates.

72 The appellant complained that the jury had not been supplied with further documents about the preparation of the com-fit images.

73 The appellant submitted that Constable Huntley had given evidence that Mr Ghandi had selected a picture of a nose which was bent but in release 3 the image showed a straight nose.

74 Somewhat inconsistently with the ground of appeal, the appellant submitted that release 3 did not look like him.

75 Apart from these particular submissions, I understood the appellant to make a general submission to the effect that the com-fit evidence had been fabricated by the police.

76 I would refuse leave under r 4 to rely on this ground of appeal. The error about dates made by Mr Ghandi in his supplementary statement and any errors concerning the release of com-fit images to the media were insignificant. Mr Ghandi and Constable Huntley did not at the trial give any evidence about how the shape of the nose had been selected for the com-fit images. No suggestion was made at the trial to Mr Ghandi or Constable Huntley that the preparation of the com-fit images had been fabricated.

3. The trial judge erred in admitting irrelevant evidence, being the telephone records of Mustafa Sasi

77 In the appellant’s submissions there was some overlap, and indeed confusion, between this ground of appeal and the following ground of appeal. I will confine my consideration of this ground of appeal to a consideration of its actual terms.

78 The Crown case that the telephone records of Mustafa Sasi were relevant can be stated as follows.

79 As previously noted, Mr Ghandi gave evidence that the offenders robbed him of two mobile telephones. One of the mobile telephones had an international mobile equipment identity number (“IMEI No”) 448902300859530.

80 At the request of Detective Waites a police intelligence agency sought information from Vodafone, which was the service provider, about the call charge records for charged party number 405009780 in May-June 2002. Vodafone provided records, which became exhibit 8 at the trial.

81 These records supplied by Vodafone showed that at 21:04:10 on 8 June 2002 the mobile telephone had been used, for the first time, with a particular SIM card inserted in it. This SIM card was in the name of Mustafa Sasi. Between 8 June 2002 and 11 June 2002 the mobile telephone was used about 70 times, using the SIM card in the name of Mustafa Sasi. After 11 June there was no further recorded use of the mobile telephone.

82 According to Roads and Traffic Authority records, Mustafa Sasi had been born on 26 September 1962, his address was 4/30 Beach Road Bondi and the number of his driving licence was 3864DV. The appellant had the same date of birth, the same address and the same driving licence number. Evidence was also given at the trial that searches of electoral rolls and in the Registry of Births, Deaths and Marriages had not disclosed any Mustafa Sasi. The appellant departed for overseas on 11 June 2002, the date of the last recorded use of the mobile telephone.

83 In summary then, the Crown case for evidence of the telephone records of Mustafa Sasi being relevant was that between 8 June 2002 (that is only four days after the robbery) and 11 June 2002 one of the mobile phones stolen from Mr Ghandi had been used with a SIM card in the name of Mustafa Sasi and that Mustafa Sasi was identical with the appellant.

84 Evidence of the telephone records of Mustafa Sasi was objected to at the trial. Judge Sorby held that the evidence was relevant and that its probative value outweighed any prejudicial effect it might have.

85 On this appeal it was submitted by the appellant that SIM cards are frequently transferred from one mobile telephone to another; that the mobile telephone taken from Mr Ghandi was not used with the SIM card in the name of Mustafa Sasi until 8 June 2002, that is four days after the robbery; and that he was not Mustafa Sasi.

86 In my opinion, the evidence of the telephone records was relevant and Judge Sorby was not shown to have erred in deciding that the probative value of the evidence exceeded any prejudicial effect. The matters raised by the appellant are matters which, at the highest, might possibly affect the weight of the evidence but were not matters preventing the evidence from being relevant. They were all matters which could readily be assessed by the jury.

87 I would reject this ground of appeal.

4. The trial judge erred in allowing hearsay evidence — Mr Gibson giving evidence on behalf of Vodafone

88 The mobile telephone records produced by Vodafone which became exhibit 8 were admitted into evidence while Detective Gibson was giving evidence. Before the records were admitted into evidence Detective Gibson had given evidence that the enquiries of Vodafone had not been made by him personally but by a police intelligence agency, acting at the request of Detective Waites. When the records were tendered, counsel for the appellant at the trial did not object to the tender.

89 It is true that counsel for the appellant at the trial had previously objected to the records being admitted but on the ground that the records were irrelevant (that is, the ground which was the basis of the third ground of appeal, with which I have already dealt). No objection was taken at the trial to the records being identified by Detective Gibson and being admitted while Detective Gibson was giving evidence.

90 On the appeal it was submitted by the appellant that the evidence of the Vodafone records was hearsay evidence. However, the submissions made by the appellant went beyond a submission that the evidence was hearsay evidence; it was submitted that the Vodafone records had been fabricated by the police.

91 In support of the submission that the Vodafone records had been fabricated by police, the appellant pointed out that the Vodafone records admitted as exhibit 8, unlike some other exhibits at the trial or in the appeal consisting of records produced by mobile telephone service providers, were not accompanied by a statement by an employee of the service provider verifying the records.

92 It was submitted by the appellant that the presence on the sheets in exhibit 8 of signatures of Detective Waites showed that the records had been fabricated by police.

93 The appellant compared exhibit 8 with other records produced by Vodafone at a different time but also being call charge records for charged party number 405009780 in May-June 2002, which became exhibit L in the appeal. It was submitted that exhibit L was in a different format from exhibit 8, for example having a different number of calls on the first sheet and the difference in the format between exhibit 8 and exhibit L showed that exhibit 8 had been fabricated by police.

94 I accept that the evidence of the Vodafone records was clearly hearsay evidence. However, no objection to its admission was taken on this ground at the trial. If any such objection had been taken, then it is likely that an employee of Vodafone could have been called to prove the records.

95 The sheets in exhibit 8 have Detective Waites’ signature on them, for the simple reason that the sheets were annexed to a statement made by Detective Waites and Detective Waites signed the sheets to authenticate them as forming the annexure to his statement.

96 The sheets forming exhibit 8 and the sheets forming exhibit L are not in identical format but the particulars of the entries in the two exhibits are identical. Exhibit L in fact confirms the authenticity of exhibit 8.

97 At the trial no suggestion was made to Detective Gibson or to Detective Waites that the documents which became exhibit 8 had been fabricated.

98 I would reject this ground of appeal.

5. The verdict of guilty was unsafe and unsatisfactory

99 The ground of appeal as framed by the appellant uses the expression “unsafe and unsatisfactory”. Since the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250 the expression “unsafe and unsatisfactory” has usually been avoided in stating a ground of appeal of the kind obviously contemplated by the appellant. In lieu of using the expression “unsafe and unsatisfactory” the ground of appeal has been stated, following the terms of s 6(1) of the Criminal Appeal Act, as being that “the verdict (of guilty) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.

100 The principles to be applied by the Court of Criminal Appeal in determining such a ground of appeal have been stated by the High Court in M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 434 and MFA v The Queen (2002) 213 CLR 606 and need not be repeated here. The ultimate question for the Court of Criminal Appeal is whether it considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

101 In the present case the Crown relied on two bodies of evidence:-

(1) The evidence of identification
(2) The circumstantial evidence based on the telephone records of Mustafa Sasi

102 I have already discussed in some detail the evidence of identification in considering the first ground of appeal and the circumstantial evidence based on the telephone records in considering the third and fourth grounds of appeal.

103 In considering the first ground of appeal I dealt with the submissions made by the appellant that on 4 June 2002 Mr Ghandi’s ability to observe the offenders, and particularly the second man, was impaired; that there were deficiencies in the array of images viewed by Mr Ghandi on 10 September 2003; and that a period of about 15 months elapsed between the time the offence was committed and the time the appellant was identified as being one of the offenders and that Mr Ghandi’s identification was initially less than certain. Having regard to what I have said in considering the appellant’s submissions on the first ground of appeal, I have concluded that it was open to the jury to accept that on 10 September 2003 Mr Ghandi had correctly identified the appellant as being the second man in the robbery.

104 It would have been open to the jury to consider that any doubts they had about the evidence of identification were resolved by the circumstantial evidence based on the telephone records of Mr Sasi. There was no doubt that a SIM card in the name of Mustafa Sasi had been used many times between 8 June 2002 and 11 June 2002 in one of the mobile telephones taken from Mr Ghandi. The evidence that Mustafa Sasi was identical with the appellant was compelling.

105 It is true that there was a period of four days between the robbery and the first use of the telephone taken from Mr Ghandi with the SIM card of Mustafa Sasi. However, it would have been open to the jury to regard the period of four days as quite short and to conclude that there was no reasonable possibility that the appellant had come into possession of the mobile telephone at some time after the robbery and before the first use of the telephone with Mustafa Sasi’s SIM card.

106 A further piece of evidence in the Crown case was the use of Mustafa Sasi’s SIM card at 10:18 on 4 June 2002 with the location, according to the call charge records, in the city of Sydney, near the apartment building.

107 The appellant made a number of submissions which appear to me to be irrelevant to whether it was open to the jury to conclude that the Crown had succeeded in proving beyond reasonable doubt that he was the second man in the robbery. For example, the appellant submitted that there was no evidence about how the offenders knew that there would be diamonds in the business apartment, the exterior of which did not disclose the nature of the business being carried on in the apartment, how the offenders knew about Mr Ghandi’s movements and how the offenders entered the building and reached the thirty-third level, without being filmed by the surveillance cameras in the building; that there was conflicting evidence about whether a 000 emergency call was made after the robbery and, if so, by whom; that there was evidence suggesting Mr Ghandi’s evidence that after the robbery he went to the home apartment was untrue; and that a very small photograph of the co-offender Mariconte which Mr Madziar found on the fire stairs of the building in July 2002 had been planted by police.

108 Some other submissions made by the appellant, for example submissions based on the absence of finger print and DNA evidence were not irrelevant but were of limited weight.

109 I would reject this ground of appeal.

6. Fresh evidence

110 As previously stated by me, this ground of appeal was abandoned.

7. The trial judge erred in giving directions to the jury

111 It was submitted by the appellant, in general terms and without making any specific criticism, that the trial judge had not given sufficient warnings to the jury, that the warnings given were merely recitals of formulas and that the summing-up was “hurried, quiet and rushed”.

112 In the summing-up the trial judge gave lengthy directions about inter alia identification evidence and circumstantial evidence. The directions on identification given by the trial judge appear to me to comply with ss 116 and 165 of the Evidence Act.

113 At the conclusion of the summing-up counsel for the appellant at the trial, having been invited by the trial judge to make any submission about the summing up, said that he did not ask for any additional direction of law. Counsel did ask that two fairly minor misstatements of the evidence be corrected and the trial judge complied with this request. Counsel for the appellant did not make any other complaint about the summing-up.

114 I would refuse leave under r 4 in relation to this ground of appeal.

Supplementary grounds of appeal against conviction

115 Apart from the principal grounds of appeal, the appellant also relied on a number of supplementary grounds. These grounds were not precisely formulated by the appellant and had to be gleaned from a document lodged by the appellant headed “Supplementary grounds and submission”. I will deal in turn with what I take to be the supplementary grounds.

(1) Prejudicial evidence suggesting that the appellant was in custody or had a criminal history.

116 (a) Detective Gibson gave evidence that on 27 August 2003 he spoke to the appellant at a police station. Although not stated in the evidence, I infer that on 27 August 2003 the appellant, who was serving a sentence of imprisonment for an unrelated offence, was in the custody of a corrective services officer.

117 Detective Gibson gave further evidence that on 27 August 2003 he told the appellant that he wanted to interview the appellant about an allegation that he had been involved in the robbery on 4 June 2002. Detective Gibson administered a caution.

118 The transcript of the trial then records that counsel for the appellant at the trial said to the trial judge that a matter had arisen which should be dealt with in the absence of the jury.

119 After the jury had left the courtroom, counsel for the appellant submitted that Detective Gibson in giving evidence had used the words “corrective services supervisor”. It may be that those words appeared in a statement by Detective Gibson which counsel was following.

120 The trial judge and the Crown prosecutor agreed with each other that Detective Gibson had started to say the word “corrective” but had been cut off by the intervention of counsel, before he had said more than the syllables “correct-“.

121 The trial judge said at p 115 of the trial transcript:-

“I think the word “corrective” was cut off before the full word was out, the phrase “corrective services” was not used and there is no prejudice to the accused. And I believe that the transcription service, because the word was cut in half, did not transcribe it”.

122 (b) Detective Gibson gave evidence that the appellant’s date of birth had been ascertained from the police COPS database (the computerised operational policing system database). Detective Waites gave evidence that a search of the COPS database had disclosed that the appellant had previously provided the address 4/30 Beach Road, Bondi as being his address.

123 No objection was made by counsel for the appellant at the trial to either of these pieces of evidence being given.

124 Any possible prejudicial effect for the appellant would have been lessened by evidence given by Detective Gibson that information is recorded in the COPS database, not only about persons convicted of crimes but about persons who have witnessed crimes, persons who have reported crimes and persons applying for firearms licences or security licences.

125 I would reject this ground of appeal.

(2) Evidence about searches and enquiries to determine whether a person Mustafa Sasi, separate from the appellant, existed.

126 A general complaint made by the appellant was that the searches and enquiries which had been made to determine whether a separate person Mustafa Sasi existed were inadequate.

127 A particular complaint made by the appellant related to evidence about whether a person Mustafa Sasi appeared in the records of the Australian Electoral Commission. In cross-examination Detective Gibson was asked whether a search had been made of the records of the Australian Electoral Commission for “Mustafa Sasi” and Detective Gibson had replied “no”. Near the end of the Crown case the Crown prosecutor sought to call evidence to show that a search had recently been made of the records of the Electoral Commission and that the result of the search was negative.

128 Counsel for the appellant at the trial opposed the giving of evidence of which the defence had received such late notice. It was originally contemplated by the Crown that the evidence, if permitted, would be hearsay evidence given by Detective Gibson and counsel for the appellant opposed the giving of such evidence by Detective Gibson, long after the cross-examination of Detective Gibson had been concluded.

129 The trial judge permitted the Crown to call Mr David Farrell, an officer of the Australian Electoral Commission, who gave evidence that he had searched the Commission’s records for a person Mustafa Sasi and had found no such person. In cross-examination Mr Farrell gave evidence that only Australian citizens are in electoral records and that persons who are not Australian citizens, of whom there were likely to be many in the Bondi area, would not be in the records.

130 In my opinion, there was no error in the trial judge acting as he did and I would reject this ground of appeal.

(3) Two members of the jury were reluctant to continue serving.

131 The transcript records that on the first day of the trial, after the trial had been proceeding for a short while, the trial judge received a note from a juror saying that he was self-employed and wished to be excused from serving on the jury.

132 Counsel for the appellant and the Crown prosecutor both made submissions to the effect that the juror should not be discharged, counsel for the appellant saying that he wished to retain a jury of twelve.

133 The trial judge informed the jury as a body that he had received a note from a juror and that the reason given by the juror for wishing to be excused was not a good enough reason to excuse the juror.

134 The appellant in his written submissions said that two jury members wanted to be discharged. After the trial commenced, the only application to be excused from serving on the jury was the application I have just referred to. However, in discussing the note from the juror with counsel, the trial judge said that before the trial had commenced two members of the jury panel had applied to be excused from serving. The judge had excused one of them on the grounds that she knew some of the witnesses. It would appear that the trial judge did not excuse the other member of the panel, who may or may not have been selected to serve on the jury.

135 I would reject this ground of appeal.

(4) The address 4/30 Beach Road, Bondi Beach.

136 The appellant complained that in another criminal proceeding against him for a Commonwealth offence, the Commonwealth Crown had alleged that the appellant was not living at 4/30 Beach Road, Bondi Beach and that the placing by the appellant of that address on an incoming passenger card completed by him in December 2002 had been intended by the appellant to mislead the authorities. The appellant submitted that “the Crown cannot have it both ways”.

137 There was no evidence at the trial and there is no evidence before this Court about the alleged allegation by the Crown in a prosecution for a Commonwealth offence. In any event, the Crown would not be disbarred from seeking to show in the present proceedings that 4/30 Beach Road, Bondi Beach was the appellant’s address.

138 I would reject this ground of appeal.

(5) The trial judge declined to give a Longman direction ( Longman v The Queen (1989) 168 CLR 79 esp at 91).

139 At the trial counsel for the appellant made a less than wholehearted application for a Longman direction. Counsel for the appellant informed the trial judge that the appellant had been notified of an allegation that he was involved in the robbery in March 2003. The trial judge declined to give a Longman direction.

140 The trial judge was not obliged to give a Longman direction in a case where the delay between the date of the offence and the date of the appellant being notified that he was suspected of having participated in the commission of the offence was only about nine months.

141 I would reject this ground of appeal.

(6) Deficiencies in the summing-up

142 The appellant submitted that in the summing-up the trial judge had not sufficiently directed the jury about the elements of the offence charged and had not sufficient directed the jury about the weaknesses and inadequacies in the identification evidence.

143 This ground of appeal seems to be similar to the seventh principal ground of appeal.

144 In his summing-up the trial judge did direct the jury about the elements of the offence charged and he did draw the jury’s attention to possible inadequacies and weaknesses in the identification evidence. His Honour’s directions about identification evidence occupy about six pages of the transcript of the summing-up.

145 As I previously noted, counsel for the appellant at the trial, having heard the summing-up delivered, did not seek any further direction of law and merely applied for two relatively minor misstatements of the evidence to be corrected.

146 I would refuse leave under rule 4 in relation to this ground of appeal.

(7) The appellant’s address

147 In the summing-up the trial judge referred to 4/30 Beach Road, Bondi as being “the address given by the accused as his address”.

148 The appellant submitted that the fact that on the incoming passenger card completed by the appellant on 27 December 2002 he had stated that his “intended address in Australia” was 4/30 Beach Road, Bondi Beach was not a sufficient basis for the trial judge to say that that address was his address. The appellant said that there was an explanation for his having written that address on the incoming passenger card, other than that he intended to live there.

149 There was no evidence at the trial and there is no evidence before this Court of any other explanation.

150 Counsel for the appellant at the trial did not make any complaint about this part of the trial judge’s summing-up.

151 I would reject this ground of appeal.

(8) Pre-trial publicity

152 The appellant said that about a month before his trial another District Court judge, Judge Solomon had sentenced Mariconte as being the appellant’s co-offender. The appellant said that in his remarks made on the sentencing of Mariconte Judge Solomon had named the appellant as having been Mariconte’s co-offender and had described how Mariconte and the appellant had allegedly committed the offence. It is true that Judge Solomon said these things in sentencing Mariconte.

153 The appellant submitted that Judge Solomon had infringed the presumption of innocence to which the appellant was entitled and that a member of the jury at the appellant’s trial might have accessed on the Internet the remarks made by Judge Solomon in sentencing Mariconte.

154 Mariconte was in fact sentenced by Judge Solomon on 11 February 2005, which would have been about a month before the aborted trial of the appellant before Judge Graham but was some months before the trial before Judge Sorby.

155 There is no evidence that Judge Solomon’s remarks on sentencing Mariconte had been placed on the Internet before the trial of the appellant before Judge Sorby took place. Remarks on sentence are usually not placed on the Internet, until after proceedings known to be pending against a co-offender have been completed. Even if the remarks on sentence were placed on the Internet, it is a matter of pure speculation whether anyone in the appellant’s jury accessed them.

156 I would reject this ground of appeal.

157 Having rejected all grounds of appeal against conviction, I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

158 There was little, if anything, in the appellant’s submissions in support of the application for leave to appeal against sentence.

159 There was a minor error in the way Judge Sorby pronounced his sentence. His Honour said that he was sentencing the appellant to a non-parole period of five and a half years and a balance of the term of three years. However, as his Honour was sentencing the appellant for an offence committed before 1 February 2003, his Honour should have said that he was sentencing the appellant to a term of imprisonment of eight and a half years with a non-parole period of five and a half years, in accordance with the previous, and not the present, provisions of s 44 of the Crimes (Sentencing Procedure) Act. However, this technical error does not affect the validity of the sentence.

160 The maximum penalty for an offence under s 98 of the Crimes Act is imprisonment for 25 years. Because the offence was committed before 1 February 2003, the standard non-parole period set under Division 1A of Pt 4 of the Crimes (Sentencing Procedure) Act is not applicable.

161 Judge Sorby in his remarks on sentence rightly regarded the offence as objectively serious. The robbery was obviously planned, it was committed in company, with weapons including a firearm, the victim was wounded and tied up and a threat was made to shoot the victim if the key did not open the safe. About a million dollars worth of diamonds was stolen and never recovered.

162 The offence was far worse than the typical case referred to by Spigelman CJ in para 162 of the guideline judgment of R v Henry [1999] 46 NSWLR 346, for which his Honour said that a sentence should generally fall between four and five years for the full term.

163 In his remarks on sentence Judge Sorby found, as he was clearly entitled to, that of the two offenders the appellant was the leader and should receive a higher sentence than that passed on Mariconte.

164 There was only a little information about the subjective circumstances of the appellant, who did not give evidence in the proceedings on sentence. He was born in Turkey in 1962 and came to Australia in 1986. Judge Sorby found that the appellant had not shown any contrition. The appellant had a previous criminal history, including a previous conviction for armed robbery.

165 I conclude that the sentence passed by his Honour was well within a proper exercise of his Honour’s sentencing discretion.

166 I would grant leave to appeal against sentence but dismiss the appeal against sentence.

167 HARRISON J: I agree with James J.

**********