King, B.C. v The Queen

Re: BARRY CHARLES KING
And: THE QUEEN
No. ACT G63; G64 and G65 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.
Neaves J.
Spender J.

CATCHWORDS

Criminal law - convictions for armed robbery and assault - identification of accused - accused interviewed by police - failure of accused to respond to questions except to deny participating in crime - reliance by accused on alibi - Crown case that alibi false - comments by trial judge on failure of accused to give explanation of whereabouts at time offences alleged to have been committed - comments by trial judge on view jury might take of accused's case if alibi disbelieved. Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, ss. 61, 97.

Accused pleaded guilty to two charges of armed robbery committed on 11 April and 8 May 1985 - sentenced to ten years' imprisonment in respect of each charge - sentence imposed for second offence to commence at expiration of sentence imposed for first offence - challenge to total period of imprisonment imposed for the two offences.

Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, s. 97.

Sentence imposed for offences alleged to have been committed on 22 October 1984 to commence at expiration of sentence imposed for offence committed on 8 May 1985 - whether power in Supreme Court to order second cumulative sentence.

Crimes Act, 1900, (N.S.W.) in its application to the Australian Capital Territory, ss. 444, 447.

Crimes Act, 1914 (Cth), s. 19.

Statute Law Revision Act, 1950 (Cth), s. 3 and First Schedule.

Court of Petty Sessions Ordinance, 1930, (A.C.T.), s. 90A.

Interpretation Ordinance, 1937, (A.C.T.).

Interpretation Ordinance, 1967, (A.C.T.), s. 33G.

HEARING

CANBERRA

#DATE 11:9:1986

ORDER

The appeals in matters No. A.C.T. G63 and G65 of 1985 be dismissed.

The appeal in matter No. A.C.T. G64 of 1985 be allowed.

The convictions of and sentences imposed upon the appellant in respect of charges of armed robbery and assault alleged to have been committed on 22 October 1984 be set aside.

There be a new trial of the appellant on those charges.

NOTE: Settlement and entry of orders is provided for in Order 36 of the Federal Court Rules.

JUDGE1

Three appeals are to be dealt with. Each is from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) given on 23 August 1985. The first (No. A.C.T. G63 of 1985) is an appeal from so much of the judgment of the Court as imposed a sentence of 10 years' imprisonment for an offence under s. 97 of the Crimes Act, 1900, (N.S.W.) ("the Crimes Act") in its application to the Australian Capital Territory. The offence was committed on 11 April 1985. Section 97 of the Crimes Act provides that, whosoever, being armed with an offensive weapon or instrument, or, being in company with another person, robs, or assaults with intent to rob, any person, shall be liable to imprisonment for 14 years. The second appeal (No. A.C.T. G65 of 1985) is against so much of the judgment of the Supreme Court as imposed a sentence of 10 years' imprisonment for a further offence under s. 97 of the Crimes Act committed on 8 May 1985. The sentence was ordered to be served cumulatively, that is it was to commence at the expiration of the sentence imposed for the offence committed on 11 April 1985. The appellant had pleaded guilty to both offences and was dealt with pursuant to s. 90A of the Court of Petty Sessions Ordinance 1930.

The third appeal (No. G64 of 1985) is an appeal from both the convictions of, and sentences imposed upon, the appellant for yet a further offence under s. 97 of the Crimes Act and also an offence under s. 61 thereof. Both offences were alleged to have been committed on 22 October 1984. Section 61 of the Crimes Act provides that whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. The Crown proceeded against the appellant by way of indictment. The appellant pleaded not guilty but on 1 August 1985 the jury returned verdicts of guilty on each charge. For the offence under s. 97 of the Crimes Act the appellant was sentenced to four years' imprisonment to commence at the expiration of the sentence of 10 years' imprisonment imposed in respect of the offence which was committed on 8 May 1985. In respect of the offence under s. 61 of the Crimes Act the appellant was sentenced to imprisonment for one year to be served concurrently with the sentence of four years imposed in respect of the other offence committed on 22 October 1984.
Thus in respect of three convictions for armed robbery and one conviction for common assault the appellant was sentenced to a total of 24 years' imprisonment. The Court fixed a non-parole period of 8 years and 9 months.
The challenges to the convictions of the appellant in respect of the offences said to have been committed on 22 October 1984 were based upon aspects of the learned trial Judge's charge to the jury where he dealt with statements made by the appellant to a police officer who interviewed him and upon what his Honour said to the jury in relation to an alibi upon which the appellant relied at the trial. In respect of the various sentences imposed it was submitted on behalf of the appellant that:-

(a) A period of imprisonment of 20 years for the offences committed on 11 April and 8 May 1985 was excessive having regard to the totality of the criminal conduct involved.

(b) There was no power in the Supreme Court to order more than one sentence to be served cumulatively. Since the sentence for the offence committed on 8 May 1985 was to commence at the expiration of the sentence imposed for the offence committed on 11 April 1985, the sentences for the offences alleged to have been committed on 22 October 1984 should have commenced on the same day as the sentence imposed in respect of the offence committed on 11 April 1985 and thus be served concurrently with that imposed for that offence.

(c) In any event, it was wrong to order that the periods of imprisonment for those offences commence at the expiration of that imposed for the offence committed on 8 May 1985 again because such a course led to the imposition of a period of imprisonment (24 years) which was excessive having regard to the totality of the criminal conduct involved.

It is to be observed that there was no challenge to the decision to order that the sentence imposed for the offence committed on 8 May 1985 commence at the expiration of the sentence imposed for the offence committed on 11 April 1985. The challenge was rather to the overall length of the period of imprisonment for the two offences. It is also to be noted that there was no challenge to the period of 8 years and 9 months fixed as the non-parole period in respect of all the offences.
We deal first with the challenges to the convictions of the appellant for the offences alleged to have been committed on 22 October 1984. The Crown case, in relation to those offences, was that the appellant, in company with another man and a woman, went to the home of Mr. and Mrs. Smith, the victims of the crimes, in Narrabundah, a Canberra suburb. The woman knocked on the front door. The knock was answered by Mrs. Smith who was to become the victim of the common assault. She told the woman that the front door would not open and asked her to go round to the back door. When Mrs. Smith answered the back door the appellant and another man wearing a stocking mask burst into the kitchen of the premises. The appellant took hold of Mr. Smith and forced him into a front bedroom. He there demanded that Mr. Smith give him all his money or he would tear the place apart. Mrs. Smith was pregnant and their two small children were present in the house. Mr. Smith asked the appellant not to be rough. He said that he would not give the appellant any trouble and that he would give him all the money he had. He gave the appellant his wallet. The appellant took out the money that was in it and put it in his pockets. He asked Mr. Smith for the rest of the money.
At this time the other man entered the room and saw more money in Mr. Smith's top pocket. The appellant took the money from the pocket but dropped it on the floor. Both the appellant and the other man started picking it up and the appellant put it in his pocket. The amount involved was over $1,000. The appellant then head-butted Mr. Smith in the face, causing him to fall back on to the bed. He demanded any drugs which Mr. Smith had. Mr. Smith denied that he had any drugs. Mrs. Smith began yelling at the appellant who punched Mr. Smith in the mouth. Previously she had been taken by the other man into one of the children's bedrooms and was so terrified that she lost control of her bladder. The appellant said that he thought that Mrs. Smith had drugs on her and instructed the other man to go and get a knife. The other man started to leave the room. The appellant went after him and they made to leave the premises. The appellant said to Mr. and Mrs. Smith not to call the police because they had someone watching the place and if the Smiths left before 20 minutes or half an hour, the appellant would know and the Smiths would be dead.
Before the appellant and the other man could leave, however, Mr. Smith managed to get a .22 calibre rifle out of a wardrobe. He loaded the rifle and cocked it. Seeing this, the appellant and the other man ran from the house through the back door and over the back fence chased by Mr. Smith. They scampered into a waiting motor car and drove off. The next day the appellant was identified by Mr. and Mrs. Smith from separate series of photographs. The appellant was subsequently apprehended, questioned and charged with the offences.
The case for the appellant was that he had nothing to do with the crime and had been wrongly identified by the Smiths. He said that he was not in the area at the relevant time and called witnesses to support the account of his movements which he gave in an unsworn statement.
The interview which was referred to in his Honour's summing up was conducted on the evening of 24 October 1984, by Detective Senior Constable Cannon of the Australian Federal Police in the presence of Senior Constable Coutts. Constable Cannon's evidence of the interview, which was led without objection from counsel for the appellant, was as follows:-

"I said, 'I am going to ask you some questions in relation to an assault which took place at a house in Narrabundah about 3.30 p.m. on Monday 22 October 1984 and in which about $1000 was stolen. Can you tell me anything about it?' He said, 'No comment, chief.' I said, 'I still intend to ask you some questions in relation to the incident. However, before I do I must warn you you are not obliged to say anything or answer my questions as anything you do say will be taken down in writing and may be used in evidence. Do you clearly understand that?' The accused made no answer. I said, 'What is your full name?' He said, 'Barry Charles King.' I said, 'What is your date of birth?' He said, '9.12.59.' I said, 'What is your current address?' He said, 'No fixed address.' I said, 'Where have you been staying?' He said, 'Nowhere much.' I said, 'Can you tell me where you were about 3.30 p.m. on Monday 22 October 1984?' He said, 'No comment, I have got nothing to say.' I said, 'Can you tell me what you were wearing about 3.30 p.m. on Monday afternoon?' He said, 'Don't wish to say nothing.'

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

'What were you wearing?' He said, 'No comment.' I said, 'Do you own any rings?' He said, 'No comment.' I said, 'It has been alleged that you in company with another male person went to a house at 30 Tarara Street, Narrabundah about 3.30 p.m. on Monday 22 October 1984 where you assaulted a male person named John Kim Smith by head butting him and punching him to the face.' He said, 'You got the wrong person, I know where I was.' I said, 'Where were you?' He said, 'No comment.' I said, 'It is also alleged that you demanded money and drugs at that address and stole about $1000 cash.' I said, 'Can you tell me anything about that?' The accused made no comment. I said, 'Do you know a John Kim Smith?' The accused made no comment. I said, 'Who were you with about this time on Monday?' The accused made no comment. I said, 'Are you going to answer any of my questions at all?' He said, 'No.' I said, 'Very well. I have reason to believe that you are one of the persons responsible for the offences which I have discussed and I have no option but to take you to the watchhouse and charge you with assault and rob, assault in company and common assault of John Kim Smith and common assault of Andrea Patricia Smith. Have you anything to say in relation to the matter?' He said, 'No comment.' I said, 'Do you wish to make a handwritten statement in relation to the matter?' He said, 'No.' I said, 'Is there anything further you wish to say?' He said, 'No.' Senior Constable Coutts and I then left the interview room and attended to paperwork in relation to the charges."

Before dealing with the interview in his summing up his Honour dealt with the evidence and other material which there was in support of the alibi. He went on:-

"Of course, you have to take account also of the investigation of the matter by police officers. You will remember the evidence of Constable Cannon that he gave the accused the opportunity to explain his whereabouts on 22 October at about 3.30 p.m. and he said, 'Can you tell me where you were about 3.30 p.m. on Monday, 22 October 1984.' He said, 'No comment. I've got nothing to say.' 'Can you tell me what you were wearing about 3.30 p.m. on Monday afternoon?' 'I don't wish to say nothing,' is the way the accused answered that.

You will remember the rest of that conversation. Generally it was a case of 'No comment' but when it was actually put to him what he had done - what the allegation was as to what had happened to Mr. Smith, head butting and punching in the face and things like that, the accused said, 'You've got the wrong person. I know where I was.' 'Where were you?' said the police officer. Answer, 'No comment.' And the accused made it plain after a few more questions, to which he had said 'no comment' that he was not going to answer any questions and he was - the interview then terminated and the accused was charged."

His Honour then returned to the alibi and said:-

"I just stress again that the onus is on the Crown to establish that it was the accused that did these things; the onus is not on the accused to establish his alibi. But it is a dangerous course for an accused to take, you may think, in a criminal trial, to say 'it wasn't me' because if the alibi is not accepted by the jury, if it does not raise in the jury's mind a reasonable doubt, then it can be very lethal indeed."

In the submission of counsel for the appellant what his Honour said was a misdirection because it was capable of suggesting to the jury that the appellant's case, insofar as it was based on an alibi, was discredited by his failure to take the opportunity offered at the interview to give an account of his whereabouts on 22 October 1984. He would say no more than that he was not the person involved. Otherwise he repeatedly made the response, "No comment". Early in the interview Constable Cannon had said that he intended to ask questions in relation to the incident, notwithstanding that the appellant had said when the interview began that he had no comment to make. Before proceeding with the questions, Constable Cannon warned the appellant that he was not obliged to say anything or answer any questions. He also told the appellant that anything he did say would be taken down in writing and might be used in evidence. It was counsel's submission that in those circumstances it would have been quite wrong for the jury to treat the fact that the appellant had repeatedly said, "No comment", as any indication of his guilt.
Counsel for the appellant at the trial did not make any submission to his Honour concerning the form of his summing up. In particular he asked for no direction in relation to the matter now complained of.
In the submission of counsel for the Crown, his Honour made no suggestion that the appellant was in some way to be criticized for not answering questions as to his movements on the day the offence was committed. His Honour had done no more than remind the jury of what the appellant had said to Constable Cannon. Alternatively, counsel submitted that, to the extent that there was to be inferred from what his Honour had said some criticism of the appellant, such criticism as there was did not go beyond what a trial judge might properly say to a jury in circumstances such as these. Then it was submitted that, if complaint had been made about the matter to his Honour at the conclusion of his summing up, the matter could have been put beyond doubt by a further direction which would have emphasized to the jury that they were not to infer guilt from the appellant's refusal to answer questions especially after he had been told that he was not obliged to say anything in answer to those questions. Finally it was counsel's submission that the Crown case was a very strong one and that any misdirection of the kind relied on by counsel for the appellant would have made no difference to the outcome; see Duff v. The Queen (1979) 28 ALR 663 especially at pp. 674-5.
In our opinion what his Honour said, when reminding the jury of what was said by the appellant to Constable Cannon, did reflect adversely upon the appellant and his case. It tended to discredit the alibi upon which he relied. The starting point was his Honour's statement earlier quoted that the Constable "gave the accused the opportunity to explain his whereabouts . . ." His Honour then summarized the interview and concluded by saying, "And the accused made it plain after a few more questions, to which he (the appellant) had said 'no comment' that he was not going to answer any questions". In our view his Honour's words would have conveyed to a reasonable listener the impression that an innocent person would have willingly answered the questions and given the Constable an account of his movements at the critical time. The failure by the appellant to take the opportunity offered him was, at least by implication, put as a matter which the jury could rely upon adversely to the appellant when considering the question of his guilt. The position may have been different if it had not been for his Honour's reference to the appellant being offered an opportunity to explain his whereabouts. But that introduction to the subject of the interview affected the whole of what followed. It follows that the submission made by counsel for the appellant that his Honour's remarks concerning the interview reflected adversely upon the appellant's case must be upheld.
In order to determine what the consequences of this conclusion should be, it is necessary to refer to a number of authorities. We may begin with the general statement made by Lord Wilberforce in Rank Film Distributors Limited v. Video Information Centre (1982) AC 380 in which his Lordship said (p 442) that the privilege against self-incrimination "has been too long established in our law as a basic liberty of the subject . . . to be denied".
In criminal cases involving statements made to police officers the present law in the United Kingdom is stated by Viscount Dilhorne in Gilbert (1977) 66 Cr App R 237 In the course of giving the judgment of the Court of Appeal in that case his Lordship said (pp. 243-5):-

"Having so directed the jury, the judge then read the statement made by Gilbert (to the police under caution), which, it is to be observed, did not deal at all with the events of August 5. Having read the statement the judge said: 'Now, members of the jury, while as I say, he is perfectly entitled to maintain silence, he is not required to make a statement. If he does elect to make a statement, you are entitled to look at the statement to see if it helps you in the task you have to perform. Bear in mind we have heard of this matter of self-defence for the first time. Ask yourselves the question, if it is the real explanation of what happened, do you or do you not think it remarkable that when making the statement, the accused says nothing whatever about it. That may help you, applying your common sense, to test the substance of the matter of self-defence, which he has now gone into in some detail in the witness box.'

Mr. Kennedy, for Gilbert, submitted that in posing this question for consideration by the jury, the judge made a serious error. It is not, in our opinion, possible to read this passage from the summing up as anything other than an invitation to the jury to reject self-defence as Gilbert had not mentioned it in his statement.

Gilbert, it was said, and this was accepted by the Crown, after saying that he wished to make a statement and beginning a statement, had changed his mind and reverted to silence. Comment then on his failure to say more, on his failure to refer to self-defence, was in the circumstances just as wrong as comment on his failure to mention it to the police when questioned would have been.

There are a large number of reported cases arising from comments made at trials on the failure of the accused to disclose the defence put forward at the trial when questioned by the police or at an earlier stage of the proceedings. It is, as Lord Parker C.J. said in Hoare (1966) 50 Cr App R 166, 169; (1966) 1 WLR 762, 765, not possible to reconcile all of them. It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection (see Gerard (1948) 32 Cr App R 132; (1948) 1 All ER 205, per Humphreys J at pp. 134 and 206 of the respective reports; Davis

(1959) 43 Cr App R 215, per Lord Goddard CJ at p. 218 and Hoare (supra)).

In Ryan (1964) 50 Cr App R 144, it appears that a number of cases were cited but not Gerard

(supra) and Davis (supra). In the light of the authorities cited to it, the Court held (1964) 50 Cr App R 144, 148 that it was wrong to say to a jury 'Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt.' That Court, however, went on to say' . . . it is quite a different matter to say, "This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today: you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation." That Court felt that there was a clear dividing line between those two courses.

We have to confess that we are unable to perceive that that is the case. The second of the statements quoted seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion than in Davis (supra). It is perhaps unfortunate that this decision was not brought to the attention of the Court in the later case of Hoare (supra) and we do not find it possible to reconcile it with Gerard (supra), Davis (supra) and Hoare (supra).

We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply 'This defence was first put forward at this trial' or words to that effect, but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence, in which case a conviction will be placed in jeopardy."

In Australia the commencing point for an analysis of the more recent authorities is the dictum of Kitto J. in Woon v. The Queen (1964) 109 CLR 529 Woon's case was not itself a case dealing with the problem in question here, but in the course of his judgment Kitto J. said (p. 535):-

"If the jury had been left under an impression that they were entitled to draw inferences against the applicant from mere refusals to answer, or from statements that amounted only to refusals to answer, there would have been serious fault to find with the charge . . . "

Prior to Woon's case the matter had been the subject of consideration by the Court of Criminal Appeal in New South Wales in Reg. v. Bouquet (1961) 62 SR (NSW) 563 Much of what Sugerman J. (as he was) said in the course of his judgment is relevant to the present problem but we do not set it out here. We do however quote the following passage (p. 571):-

"The obvious fairness of treating the words of the caution as meaning what they say (R. v. Navlor

(1933) 1 KB 685), and the peril otherwise to the innocent (R. v. Leckey (1944) 1 KB 80), make it essential to guard jealously against infringement of the rule which forbids the treatment of non-disclosure as a ground for inferring guilt. The setting up of a defence of alibi for the first time at the trial does not open the door to comment upon the failure of the accused to make earlier disclosure or explanation of a kind which is contrary to this rule and the reasoning upon which it rests."

In the course of his judgment in Bouquet's case Wallace J. (as he was) said (pp. 573-4):-

"It appears that twice Detective Constable Fagan warned the applicant on the occasion of his questioning and arrest that he did not have to say anything or make any comment 'as anything you do say may be later given in evidence'. It seems to me that an innocent man, especially if taken in apparently compromising circumstances might well be regarded as acting in a natural and sensible manner if he acted upon such an official warning even if given only once. Otherwise why have the English judges ruled that it ought to be

given? If silence is to be commented upon then in the interests of fairness and frankness the

warning should be extended as follows: 'You are not required by law to say anything at all but if

you don't, then your silence will be used as an argument against your innocence at your

trial' . . . "

Reg. v. Sadaraka (1981) 2 NSWLR 459 was another decision of the New South Wales Court of Criminal Appeal (Street C.J., Reynolds J.A. and Slattery J. (as he was)). In the course of his judgment, in which the other two members of the Court agreed, Street C.J. said (p. 462):-

"There is no rule of law requiring a direction to be given to a jury that, where an accused person elects to avail himself of his right to remain silent, the exercise of that right does not entitle the jury to draw any inference adverse to the accused person. The law, rather, is formulated in terms which involve the trial judge being under an obligation to ensure that a jury is not left under a misapprehension.

His Honour then referred to the dictum of Kitto J. in Woon's case earlier quoted and continued (p. 462):-

"The charge in that case (Woon's case) did not contain a specific direction to the effect that no adverse inference could be drawn from silence. The significant matter, however, is the opening phrase in the sentence I have quoted - namely, that if the jury had been left under an impression that they could draw an unfavourable inference then a direction would have been desirable".

The Chief Justice went on to refer to Ryan's case (supra) which had been the subject of consideration in Gilbert - see the passage earlier quoted from the judgment in that case. In the light of Gilbert's case, the approach adopted in Ryan is no longer regarded as sound, at least in the United Kingdom.
After referring to some further authorities Street C.J. in Sadaraka reached the following conclusion (p. 463):-

"I do not consider that there was any necessity in the present case for a specific direction to the jury to the effect that no adverse inference could be drawn. It seems to me that the second of the two contrasting situations enunciated by the Court of Criminal Appeal in England is the closer to the present case, and I am not satisfied that this jury, after hearing the summing-up, would have been left or could have been left under an impression that they were entitled to draw an inference against the appellant from the mere refusals to answer".

So far as we are aware the most recent decision of the Court of Criminal Appeal in Victoria is that of R. v. Beljajey (1984) VR 657. There the Court was comprised of Starke, Murphy and Hampel JJ. In the course of his judgment Starke J. said (p. 662) that no failure to give an innocent explanation after caution can be used as to an accused's credit or otherwise, and the jury must be so directed. Although agreeing with Starke J. that the application for leave to appeal should be granted and the appeal allowed, neither Murphy J. nor Hampel J. wrote a separate judgment.
In the submission of counsel for the appellant, it was incumbent upon the learned trial Judge here to give the direction propounded by Starke J. in Beljajey. Alternatively, counsel submitted that dealing with the matter as his Honour did either left, or could have left, the jury with the impression that they were entitled to draw an inference against the appellant from his mere refusal to answer questions. In this respect his Honour's directions were said to have offended against both what was said by Kitto J. in Woon's case and by Street C.J. in Sadaraka's case.
There appears to be some difference between the way in which the matter is approached in New South Wales and the way it is approached in Victoria. But in a sense the distinction between the two approaches is a fine one. In New South Wales there will be cases in which a specific direction is not required. On the other hand, the view expressed by Starke J. would require a direction in every case.
Subject to what may eventually be said by ultimate courts of appeal, the Court of Appeal in England and the Courts of Criminal Appeal in New South Wales and Victoria have each laid down the practice to be adopted by judges in their respective jurisdictions. None of the decisions of these Courts is binding on this Court, but each is highly persuasive of what we should decide the position to be in the Australian Capital Territory. So far as we are aware the only decision of the High Court which deals with the problem is Woon's case and then only in the dictum quoted from Kitto J.'s judgment. Kitto J.'s statement is relevant and helpful, but it is by no means determinative of the question which is to be decided.
We are of opinion that a specific direction should be given in every case. Where, as here, evidence is admitted of answers to a police officer's questions which make no admission and do not suggest a consciousness of guilt (cf. Woon's case), the very existence of the evidence, without any comment by the judge, may mislead the jury into thinking that they may use the accused's failure to answer the questions or disclose his whereabouts adversely to him. The only way to avoid possible misunderstanding is to tell the jury in clear terms that they must not use the failure of the accused to respond to a police officer's questions adversely to him. In some earlier English cases - Tune (1944) 29 Cr App R 162 provides an example - it was held sufficient (and thus appropriate) simply to read the account of the interview given in evidence. In our opinion, there is a danger that a jury, if it is not cautioned against doing so, will itself conclude that guilt may be inferred by the failure of an accused person to answer questions asked by a police officer. In the light of Gilbert's case earlier referred to, we think there is a question whether cases such as Tune's case would now be followed in the United Kingdom.
In passing we would mention a further matter. As earlier said, the evidence of the interview conducted by Constable Cannon was admitted without objection. There was no submission to us that the evidence should have been rejected or admitted only provisionally. Nor was there any submission to us that the only relevant part of the interview was that part of it where the appellant was reported to have said, "You got the wrong person, I know where I was". We express no concluded opinion whether the evidence was admissible, but we think there is a considerable doubt whether it was. We note the discussion of the problem in Cross on Evidence, 2nd Australian edition, pp. 508-511. However, the evidence was admitted and we must deal with the case on that basis.
This is not a case such as Tune in which the learned trial Judge merely read the evidence of the police officer's interview with the accused to the jury. For reasons earlier given, what his Honour said to the jury could have misled them into thinking that they were entitled to use adversely to the appellant, his failure to take the opportunity given him by Constable Cannon to explain his whereabouts. Thus, instead of there being a direction that the jury were not to use the appellant's failure to answer the questions adversely to him, there was, at least inferentially, an indication that they might do so. The summing up thus contained the misdirection relied upon by counsel for the appellant in his submission to this Court.
The second matter arising from his Honour's charge to the jury which we need to consider is that part of it in which he said that, if the alibi were not accepted, "if it does not raise in the jury's mind a reasonable doubt, then it could be very lethal indeed". The submission of counsel for the appellant was based on the proposition that the words which his Honour used tended to place an onus on the appellant which he did not bear.
We think that there is a more fundamental problem arising from what his Honour said than is contemplated by counsel's submission. There are a number of dicta in which judges have emphasized the need for the trial judge to warn the jury about the way in which they may use the fact that an accused person has told a lie in his evidence or in a statement made by him. Thus in Broadhurst v. The Queen (1964) AC 441, a decision of the Privy Council, Lord Devlin, in giving the reasons of the Board for allowing the appeal, said (p. 457):-

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

The proper approach by a jury, once it is satisfied beyond reasonable doubt that a proffered alibi is false, was stated by Lord Widgery C.J., speaking for the Court of Appeal, in Reg. v. Turnbull (1977) 1 QB 224 as follows (p 230):-

"Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."

In Keane (1977) 65 Cr App R 247, the Recorder had told the jury that, if they concluded that the alibi was untrue, it was a factor, "to weigh up when you consider the safety of those identifications". Of this direction, Scarman L.J. (as he was), who gave the judgment of the Court, said (p. 249):-

"Sometimes no doubt that is right but as the Lord Chief Justice said in Turnbull (1976) 63 Crim App R 132 at 139, (1977) 1 QB 224, 'False alibis may be put forward for many reasons'. The jury must be told they can rely on a false alibi as supporting an identification only if they are satisfied that the sole reason for the fabrication was to deceive them on the issue of identification. The recorder never made this clear to the jury."

In the consideration of the problem, there is to be taken into account a dictum of Gibbs J. (as he was) in Steinberg v. Federal Commissioner of Taxation (1975) 134 CLR 640 where his Honour said (p. 694):-

"The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230, at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 CLR 684, at p. 698; Malzy v. Eichholtz (1916) 2 KB 308, at p 321; Ex parte Bear; re Jones (1945) 46 SR

(N.S.W.) 126, at p. 128), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 CLR 154, at p 158; Tripodi v. The Queen (1961) 104 CLR 1 Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell

(1961) WAR 103, at p 109"

In our opinion there is nothing in what Gibbs J. has said which would suggest that the warnings to juries said to be necessary in the English cases which we have cited need not be given.

If the only submission made were that the words used by his Honour tended to place an onus on the accused, we would have been inclined to reject the submission. That is particularly because of the words used by his Honour in the very passage which is complained of, namely, "if it (the alibi) does not raise in the jury's mind a reasonable doubt . . . " Furthermore, his Honour more than once told the jury in plain terms that the onus was not on the appellant to establish his alibi. But in our opinion the problem which the words which his Honour used raises stems from their broad indication, almost amounting to an invitation, to use the circumstance that the appellant adduced evidence of a false alibi as an indication of his guilt without giving any of the warnings or directions which should be given in such a case. Accordingly, we conclude that the use by his Honour of the words, "if the alibi is not accepted by the jury . . . , then it can be very lethal indeed" constituted a misdirection.

It follows that there were two misdirections in relation to matters of substance in his Honour's charge to the jury. We bear in mind that his Honour was not asked to redirect the jury in relation to any matter including these matters. The failure of counsel for accused persons to discharge their duties to the Court and to their clients always places a considerable burden on trial judges and upon the system generally. But we must also bear in mind that all accused persons are entitled to a fair trial according to law. Our conclusions are that the appellant here has not had such a trial. Justice therefore requires that we allow the appellant to rely on the two matters of misdirection notwithstanding the fact that his Honour was not asked to correct his charge to the jury.
The next question is whether, notwithstanding our conclusion that there were the misdirections which we have found to exist, we should be satisfied that the misdirections did not deprive the appellant of a fair chance of an acquittal. This matter was discussed at length in Duff v. The Queen (1979) 28 ALR 663 Amongst other things the Court said (p. 674):-

"As we earlier noted, the new trial grounds contain a qualification that, if the appellate court feels some reasonable assurance that the blemish at the trial could not reasonably be supposed to have influenced the result, the conviction under appeal may be allowed to stand. The qualifying rule and the proviso in the common form statute have a similar operation, for they avoid the need to quash a conviction whenever an error in the summing-up or in the admission or rejection of evidence or in procedure is established, whether the error be material or not; and they thus prevent the administration of the criminal law being 'plunged into outworn technicality', as Barwick C.J. pointed out in Driscoll (137 CLR at 526-7; 15 ALR at 55-6). But unless an error cannot reasonably be supposed to have influenced the result, the conviction must be quashed. In this connection, the well-known passage in the judgment of Fullagar J. in Mraz v. R. (1955) 93 CLR 493;

(1955) ALR 929, refers to the burden which the Crown bears on appeal. Although the court was there construing the common form statutory proviso, his Honour's construction of the proviso accommodated the safeguards assured by the traditional precepts of the criminal law. The proviso, he said (CLR at 514): ' . . . ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.'

Irrespective of the differences between the grounds of appeal available under the common statutory form and those available on appeal from the Supreme Court of the Australian Capital Territory, the loss of a fair chance of acquittal as the result of an appealable error requires that the conviction be set aside, and the ultimate onus of showing that the error could not reasonably be supposed to have had that consequence is on the Crown: cf Driscoll (139 CLR at 526; 15 ALR at 55)."

Some parts of the decision in Duff's case were the subject of disapproval in Chamberlain v. The Queen (1984) 51 ALR 225; see pp. 229-234. But nothing said by the High Court in the Chamberlain case affects the statement of principle which is in question here.

In order to determine whether the Crown has made out its submission that the misdirection did not deprive the appellant of a fair chance of acquittal, it is necessary to make some examination of the evidence led in support of the Crown case and of that led in support of the case for the appellant. We turn to that task.
The issue at the trial was whether the evidence was sufficient to satisfy the jury beyond reasonable doubt that it was the appellant who had committed the crimes. The evidence in support of the Crown case was given by Mr. and Mrs. Smith and by Constable Olinder. Constable Olinder knew the appellant. At the time in question he was attached to the City Police Station. At about 3.05 p.m., on 22 October 1984 the appellant called at the police station. He was wearing a knitted jumper with a round neck and long sleeves, blue jeans and running shoes. Constable Olinder said that he had a large number of silver rings on his fingers. One ring was in the form of a snake wrapped round the finger. Constable Olinder said that the appellant told him that "he had an appointment and that he was sorry he was late". The appellant appeared to be very agitated. There was cross-examination of Constable Olinder as to his observation of the rings he said were worn by the appellant. But there was no cross-examination to suggest that the appellant had not been at the police station about the time deposed to by Constable Olinder.
Mrs. Smith said that the appellant was wearing faded blue jeans, a tight knitted blue jumper with sleeves rolled up to the elbow, running shoes and a belt. She said that the appellant's arms were tattooed. She said that he had "a few rings on" his hands. When first asked about these she said that she did not remember what the rings were. Mrs. Smith said that the appellant was clean shaven, about five feet ten or eleven inches high and had a short well styled haircut. He had a tattoo of an anchor on his right ear lobe.
Mrs. Smith's evidence extended over two days. On the second day she was asked whether there was anything else which was distinctive about the appellant's appearance. She said that he was wearing a few rings on one of his hands. She was not sure whether the rings were on both hands or not. She was asked whether there was anything distinctive about the rings and said that one had a blue stone and one resembled a snake. The ring which resembled a snake was different from the one which had a blue stone.
After the incident Mrs. Smith accompanied police officers to the police station in Canberra. She was shown what she described as a photo board. It consisted of a number of photographs of male persons. She recognized the appellant in one of the photographs and signed that photograph. The photo board was produced and marked for identification. It was not tendered.
Mr. Smith said that the appellant was wearing jeans and a short light coloured top. The jeans were blue. Mr. Smith said that he was wearing sandshoes or running shoes. He did not recall there being any distinctive marks on the appellant and had no recollection of seeing any tattoos on his arms or on his ear lobe. He gave no evidence about the rings.
Like Mrs. Smith, Mr. Smith was shown a number of photographs of different male persons. He identified the accused and signed his name on the photographs. The photographs which Mr. Smith was shown, including the one which he signed, were produced and marked for identification. Again they were not tendered.
The Smiths were not together when each identified the appellant.
The appellant has tattooed arms and a tattoo of an anchor on his right ear lobe. He also has a tattoo on his other ear lobe. Both Mr. and Mrs. Smith gave evidence that they had taken particular note of the appellant and each was satisfied that the appellant was one of the men who had entered the house and robbed them.
There was considerable cross-examination of both the Smiths to suggest uncertainty on their part as to the correctness of their identification. Mr. Smith was cross-examined extensively on his failure to notice the tattoos. Mrs. Smith was cross-examined to suggest that she had had no recollection of the snake like ring on the first day she gave her evidence and that a reading of her statement had prompted her memory in this respect. She said that she had remembered it overnight after thinking about the evidence she had given the previous day. Both the Smiths put the time of the appellant's arrival at their house at about 3.30 p.m. on 22 October 1984, Mr. Smith saying that it was between 3.20 p.m. and 3.30 p.m.
The case for the appellant, as earlier mentioned, was based partly on an alibi. There was evidence from his sister, Miss S.C. King, that he had arrived at her home in Strathfield at about 7.30 p.m. or 8.00 p.m. In his statement the appellant said that he was in the main bar at the Civic Hotel in Canberra at about 2.00 p.m. on 22 October 1984. An acquaintance of his, Mr. Morris, entered the bar and the two talked for some time. The appellant was drinking but Mr. Morris was not. The appellant said that he asked Mr. Morris if he had a car. Mr. Morris said that he did and the appellant asked him if he would mind giving him a lift out to about 200 yards past the Starlight Drive-In because the appellant wanted to hitchhike to Sydney. According to the appellant they left the Hotel at about 2.55 p.m. Mr. Morris left the appellant at the agreed place. The appellant said that he secured a lift about 15 minutes later and left the car at the corner of Concord Road and Parramatta Road in Sydney. From there he walked to his sister's house at Strathfield.
Mr. Morris confirmed the meeting between the two in the Civic Hotel. He also confirmed that he drove the appellant about 200 yards past the Starlight Drive-In on the road to Sydney. According to Mr. Morris the two left the Civic Hotel about 3.00 p.m.
Mr. Morris is well acquainted with the appellant and had seen him regularly over the previous six weeks. The appellant was serving a term of imprisonment for another offence during this time. It seems, therefore, that Mr. Morris must have been in prison also. This was not a matter disclosed to the jury.
Both the appellant and Mr. Morris are in conflict with Constable Olinder who gave evidence of the appellant's coming to the police station at about 3.05 p.m. on 22 October. As mentioned, there was no cross-examination of Constable Olinder to suggest that Constable Olinder's evidence was untrue or mistaken.
The strength of the Crown case must be assessed in the light of the plain evidence of the Smiths that the appellant was one of the men in question. There is to be taken into account in relation to this evidence the fact that Mrs. Smith noticed the tattoos on the appellant's arms and particularly on one of his ear lobes. She also noticed the ring in the form of a snake amongst those he was wearing. On the other hand Mr. Smith noticed no tattoos and no rings but was certain that the appellant was one of the men. Both the Smiths identified the appellant from a series of photographs. They were not together when this exercise was performed.
Further factors are Constable Olinder's unchallenged evidence that the appellant was in the police station at 3.05 p.m. and the appellant's statement to the jury that he left the Civic Hotel at about five to three or three o'clock. He said he drove with Mr. Morris up Northbourne Avenue to about 200 yards past the Starlight Drive-In. When he arrived there, he said that he asked Mr. Morris for the time, and was told that it was "about twenty past three". A Canberra jury would have been entitled to use its local knowledge to conclude that this account, having regard to distances and times, could not be correct.
The question is whether the misdirections in his Honour's summing up deprived the appellant of a fair chance of acquittal. Notwithstanding that we think that the Crown case was a strong one, we have reached the conclusion that the Crown has not shown that his Honour's misdirections did not deprive the appellant of that chance. Our primary reason for this conclusion is that much of the strength of the Crown's case stems from its having demonstrated that the appellant's proffered alibi was false. It was in respect of this very matter that his Honour's charge was deficient. For the reasons earlier given, he failed adequately to instruct the jury how they were to approach the question of the appellant's guilt or innocence in the event that they should find the alibi to be a false one. In those circumstances it seems very difficult to us to conclude, in the absence of a proper direction in relation to the alibi, that the accused was not deprived of a fair chance of acquittal.
Some further factors have influenced us. The case is one in which the central question was whether the appellant had been correctly identified as one of the Smiths' assailants. Evidence as to the identity of an accused person as the person who has committed a crime needs always to be looked at critically. It was not suggested that it was not permissible for the Smiths to identify the appellant from photographs rather than at a line-up; cf. Alexander v. The Queen (1981) 145 CLR 395 But the fact that there was not a line-up after the appellant's arrest tends to weaken the effect of the Smiths' evidence. Furthermore, there is the fact that Mr. Smith gave no evidence of rings on the appellant's fingers and the fact that Mrs. Smith, although she did give such evidence, did not give evidence of the snake-like ring until the second day of the trial.
In all these circumstances we are unable to conclude that the appellant was not, by his Honour's misdirections, deprived of a fair chance of acquittal. Accordingly, the convictions for the offences alleged to have been committed on 22 October 1984 will be set aside.
That leaves the question of the sentences imposed by his Honour in respect of the offences which were committed on 11 April 1985 and 8 May 1985. It is first necessary to state shortly the facts upon which his Honour proceeded to sentence the appellant for those offences.
On 9 April 1985 the appellant purchased a beard and a moustache from a shop in the Belconnen Mall. Later that day he returned to the same shop with a female person and together they purchased a platinum blonde wig. On 11 April 1985 the appellant entered the Kingston Branch of the C.P.S. Credit Union Co-Operative Limited at the corner of Kennedy and Eyre Streets, Kingston. He was wearing a false beard, a beanie and glasses. He stood in front of one of the tellers and demanded that all the big notes be put on the counter. He was carrying a white plastic bag containing a packet which the employees at the Credit Union thought to be a gun.
The teller placed the notes on the counter and the appellant scooped them up. He told the customers to get together and lie down on the floor. He told the tellers to get "that big money out of the tins", or he "would blow their heads off". He took all the money placed on the counter and, brandishing the plastic bag, said that he was going down the stairs and that he would blow the head off anybody who followed him. The appellant entered a waiting car driven by a young woman with fair hair. The sum stolen was $24,299.
The facts relating to the second offence began on 2 May 1985. The appellant and a female person hired a motor car at Sutherland near Sydney. On 6 May 1985 they booked into the Embassy Hotel in Canberra under an assumed name. On 8 May the appellant again went to the C.P.S. Credit Union. On this occasion the appellant was wearing a balaclava. He was carrying a white plastic bag and had one of his hands inside the bag.
As he entered, the appellant said, "Take all the money out". He walked towards the teller and jumped on the counter. He told a woman customer and her daughter to lie down. He jumped off the counter on to the teller's side and removed money from the teller's drawer. He demanded that the other cash drawers be opened and went to another teller's terminal and pulled open a cash tin. He returned to the first teller, pointed a gun at her and told her to open her cash tin that was on the floor. The tin contained no money. The appellant jumped back over the counter on to the public side. A male customer entered the premises. The appellant pointed the pistol at him and told him to join the other two customers. The appellant ran down the stairs pulling off his balaclava as he did so.
An employee of the Credit Union gave chase and saw the appellant enter a car which had come up Leichhardt Street. The vehicle had New South Wales number plates. The amount stolen was $20,690.
The appellant was apprehended on 30 May 1985. He said the pistol which he had used was a plastic pistol bought from a Woolworth's store.
The appellant was born on 9 December, 1959 and was thus 25 when sentenced. He was raised in Canberra, left school at the beginning of third form and has never really worked since leaving school. He has a criminal history which was correctly described by the learned primary Judge as "exceptionally bad". His string of convictions commenced in 1970. All forms of leniency were tried by the Canberra Children's Court but these failed and, because he was a repeated offender, he was often committed to institutions. Apart from his Children's Court convictions, he was convicted in the District Court at Dubbo on 8 December 1977 of break, enter and steal, and stealing a motor vehicle and was sentenced to three years' imprisonment. On 28 April 1978, in the Bathurst Court of Petty Sessions, he was also sentenced to a term of imprisonment, this time for an assault. On 27 October 1980, he was convicted in the District Court in Sydney on two charges of armed robbery and sentenced to 14 years' hard labour and eight years' hard labour, those terms of imprisonment to be concurrent. A non-parole period was fixed to expire on 6 July, 1985.
In his evidence before the learned trial Judge, he said that those offences were armed robberies at the Commonwealth Bank at Arncliffe and the Commonwealth Bank at Panania in Sydney. He committed those offences in company with two other people. The first netted $10,000 and the second $35,000; the amounts were split between the accused and his two co-offenders. The offences were committed with a sawn-off .22 calibre rifle.
An offence of armed robbery in 1980 in New South Wales attracted a maximum penalty of twenty years. The maximum penalty for that offence in the Australian Capital Territory is still fourteen years. It follows then that in 1980 he was sentenced to a term of imprisonment that was approximately two-thirds of the maximum.
The antecedent report prepared by the Australian Federal Police which was before the learned primary Judge indicates that the appellant was released on parole on 16 June, 1983 from Bathurst gaol. He therefore had served only 3 years and 8 months of the period of 14 years' imprisonment imposed on 27 October 1980. It is clear that each of the four offences for which he was sentenced was committed while he was on parole for the offences of armed robbery committed in New South Wales.
The circumstances of the offences outlined earlier speak for themselves. The two armed robberies at the Credit Union were committed in a premeditated and ruthless fashion. The learned trial Judge noted:-

"Both armed robberies were well planned and well executed and very little of the money has been recovered. I bear in mind that armed robbery is a fairly prevalent offence in the Australian Capital Territory."

In an earlier case, R. v. Cosgrave (unreported 29 November 1984), the learned trial Judge had said:-

"Armed robbery is a prevalent offence now in the Australian Capital Territory. The figures were put before me by the Crown. It is sufficient to observe that in the 12 months ended 30 June 1984 there were 55 such offences, that is just over one a week, and in the period between July and October 1984 there have been 18 such offences. This court must do whatever it can to deter offences of armed robbery."

King C.J. in R. v. Spiero (1979) 22 SASR 543 at pp 548-9 said:-

"It must be made clear beyond misunderstanding that when a person engages in robbery, while armed with a weapon, he can expect, when apprehended and convicted, a long sentence of imprisonment. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present."

These remarks were adopted by the South Australian Full Court in R. v. Knight (1981) 26 SASR 573 at pp 574-5, and by the Full Court of the Federal Court in Achetraritei v. R. (1984) 53 ALR 85. The Full Court of the Federal Court said (at p. 90) that that passage serves to emphasise that armed robbery with its attendant risks of injury or death to the person or persons robbed is a crime of great gravity to be dealt with on conviction in such a way as to show the community's abhorrence of it and in accordance with the Court's duty to protect the community.
In his evidence before the learned trial Judge, the appellant said he became addicted to heroin in 1980. He said that he had used the drug constantly, or almost constantly, since 1980 and continued to use the drug as much as possible while in prison. Around about April 1985, he claimed his habit was costing him about $800.00 per day. His whole life consisted of his addiction to heroin and the only way he could support it was by committing offences. When the money ran out, he said he would resort to crime. He claimed that nearly all the $44,000 that he got from the Credit Union robberies was spent on heroin. He maintained that the gun he used was a plastic gun purchased from Woolworths and slightly bigger than a .38 calibre pistol. He had never had any intention to harm anyone; his only intention was to get money to sustain his heroin addiction.
The very serious offences on which the appellant was sentenced are but a small part of the catastrophic effect on the community and its safety that has been caused by the curse of heroin and those who supply it. The appellant's case is but one of many, and the community has to suffer the enormous cost of crimes committed so as to feed the addiction of heroin addicts.
The learned trial Judge observed:-

"Despite the fact that he received about two-thirds of the maximum in 1980 for the two New South Wales offences and despite his release on parole, there is absolutely no sign of any reform or any rehabilitation on the part of the prisoner and for the protection of society I must sentence him to substantial terms of imprisonment."

Neither of the sentences could possibly be regarded as excessive if they be looked at individually. The only question is whether, viewed in a global sense, the total period of imprisonment imposed was excessive. As Blackburn J. noted in Murrell v. The Queen (1985) 4 FCR 168 at p 180:-

"Concurrent sentences are usually proper when the offences in question are part of one criminal episode or enterprise (what D.A. Thomas, in Principles of Sentencing, (2nd ed.), p 53, calls 'the one-transaction rule')."

Further, he said:-

"There is also the question whether the totality of the cumulative sentences is inappropriate for the offences considered together; Thomas (op. cit.) describes this as the totality principle, and it is also applied in Australia: R. v. Smith

(1983) 32 SASR 219"

As to this principle, Street C.J. in R. v. Visconti (1982) 2 NSWLR 104 said (p. 114):-

"The appellant has committed three offences which require separate consideration. His Honour was clearly justified in imposing cumulative sentences, but it is necessary to pay regard to what has been called the principle of totality in assessing what sentences are appropriate for each of the three offences in the light of the ultimate aggregate which will result. Cooke J.A. giving the judgment of the Court of Appeal in R. v. Bradley (1979) 2 NZLR 262, referred (at p 263) to the:

'. . . general rule that consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole.'

The Court in that case expressed the view (at p. 263):

'. . . that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour.'"

Lee J. said (p. 115):-

"The commission by an offender of a number of serious crimes does not necessarily require sentences to be imposed cumulatively which individually, in isolation, might be regarded as appropriate to the particular crime under consideration. Regard must be had, by way of an objective appraisal, to the whole of the criminality involved in the crimes and a conscious decision made as to whether the period of time over which the aggregate of the sentences extends is appropriate to the criminality shown."

And later at that page he said:-

"The important and cardinal matter, in my view, is that where there are separate offences, the sentencing judge give positive attention to the overall aggregate of the sentences imposed and be satisfied that that term does not exceed what is reasonably necessary as punishment for the degree of criminality demonstrated in the whole of the offences he is concerned to deal with."

Having taken into account the principles to which we have referred, the circumstances of the two offences and the past record of the appellant, we are quite unable to conclude that the imposition of a total period of imprisonment of 20 years for the two offences is not in accordance with the exercise of a sound discretion. Indeed, if the matter had been for us to consider otherwise than on an appeal from the exercise of a discretion, it is unlikely that we ourselves would have reached a different conclusion. In those circumstances the appeals against the two sentences and the order that they be served cumulatively will be dismissed.
Because of our conclusion that the appeals against the convictions for the offences which were alleged to have been committed on 22 October 1984 should be allowed, no question as to the appropriateness or otherwise of the sentences imposed by his Honour for those offences arises. Nevertheless, there was raised a substantial question as to whether it was appropriate for his Honour to order that the period of imprisonment for the armed robbery which was alleged to have taken place on that day could have been ordered to be served cumulatively, that is, whether the period of imprisonment imposed for that offence might be ordered to commence upon the completion of the period of imprisonment imposed for the offence which was committed on 8 May 1985. The matter was fully argued and raises a question of general importance. In those circumstances, although it is not necessary for us to do so, we propose to deal with the submissions which were made and to express a view on what the outcome of the argument should be.
Counsel for the appellant examined a number of statutory provisions in order to show that they did not provide any authority for the Supreme Court to order that the sentences imposed for the offences said to have been committed on 22 October 1984 commence after the expiration of the term of imprisonment imposed for the offence committed on 8 May 1985.
The first of those provisions was s. 444 of the Crimes Act which provides:-

"444. (1) Where a person is convicted of any offence, and at the time of passing sentence the term of any sentence of imprisonment previously passed on him is unexpired, the Judge may direct that the sentence for the offence of which such person then stands convicted shall commence at a future day to be named by the Judge, and to be within, or at the expiration of the period of such unexpired sentence.

(2) Where no such direction is given the sentences shall be concurrent."

That section has, however, been construed as having the effect that a person may receive only one cumulative sentence and not more: R. v. Martin (1911) 2 KB 450; R. v. Lovell (1939) 56 WN (NSW) 75; Haves v The Queen (1967) 116 CLR 459; R. v. Clark (1974) 23 FLR 324; Murrell v. The Queen (1985) 4 FCR 168 Adopting that construction of the section, it may not be relied upon to support what was done in this case as the sentence for the offence of armed robbery said to have been committed on 22 October 1984 was the second cumulative sentence imposed on the appellant.
Next, reference was made to s. 447 of the Crimes Act which provides:-

"447. Where a person is, in any case, convicted on the same indictment of two or more offences similarly punishable, the Judge may, if he thinks fit, pass sentence on the second and third counts respectively for a term to commence at a future day named by him, within, or at the expiration of, the term of sentence passed on the last preceding count."

We agree with the submission of counsel for the appellant that that section has no application in the circumstances of the present case. The sentences of imprisonment for the offences committed on 11 April and 8 May 1985 cannot be said to have been imposed after the appellant was convicted on indictment. They were imposed pursuant to the procedure set out in s. 90A of the Court of Petty Sessions Ordinance 1930 (A.C.T.), a procedure under which an accused person, having pleaded guilty to a charge before the Court of Petty Sessions and the Court having accepted that plea, is committed to the Supreme Court for sentence. Sub-section 90A(8) of that Ordinance provides that the Supreme Court has the same powers of sentencing or otherwise dealing with the accused person and of finally disposing of the charge and of all incidental matters as it would have had if the accused person, on arraignment at any sittings of the Court, had pleaded guilty to the offence charged or an indictment filed by the Attorney-General. The effect of that sub-section is not, however, to require the conclusion that, upon the Supreme Court acting upon the accused person's plea of guilty and in consequence convicting him of the offence charged, the accused person is a person convicted "on indictment". It follows that, although the appellant was clearly convicted on indictment of the offences committed on 22 October 1984, he was not convicted "on the same indictment" of the two offences dealt with pursuant to s. 90A of the Court of Petty Sessions Ordinance 1930 (A.C.T.).
Finally, reference was made, as a possible source of power, to s. 19 of the Crimes Act 1914 (Cth) ("the Crimes Act (Cth)") in its application to the imposition of sentences for offences against the laws in force in the Australian Capital Territory other than offences against laws of the Commonwealth. To understand the submissions made it is necessary to refer to the history of s. 19 and to the provisions of certain Ordinances.
At all material times prior to 28 June 1985 (that is, the date from which the Interpretation (Amendment) Ordinance 1985 (A.C.T.) took effect), s. 7 of the Interpretation Ordinance 1937 (A.C.T.) provided:-

"7.-(1.) The provisions of sections five, seven, seven A, thirteen, fourteen, fifteen, seventeen, nineteen to twenty-one, twenty-one B and twenty-one C of the Crimes Act 1914-1932, as amended from time to time, shall so far as they are applicable, apply in relation to all Ordinances as if an Ordinance were a law of the Commonwealth.

(2.) For the purposes of this section, 'Ordinance' includes rules, regulations and by-laws under an Ordinance and every law of the State in force in the Territory as a law thereof."

The reference to "the State" is a reference to the State of New South Wales (see s. 3).

Section 19 of the Crimes Act 1914-1932 as in force when the Interpretation Ordinance 1937 (A.C.T.) took effect was subsequently amended by the Statute Law Revision Act 1950 (Cth) (see s. 3 and the First Schedule) and the Crimes Act 1960 (Cth), s. 18. As so amended, s. 19 provided:-

"19.-(1.) Where a person convicted of any offence against the law of the Commonwealth is at the time of his conviction serving a term of imprisonment for any offence (whether against the law of the Commonwealth or against any law of a State or Territory) the Court before which the offender is convicted may direct that any sentence of imprisonment imposed in respect of the first-mentioned offence shall commence at the expiration of the term of imprisonment which the offender was serving at the time of his conviction.

(2.) Where a person is convicted of more offences (whether indictable or otherwise) than one before the same Court at the same sitting and is sentenced to more than one term of imprisonment, the Court may direct that the sentences shall be concurrent or cumulative.

(3.) Where two or more sentences are directed to be cumulative, they shall take effect one after the other in accordance with the order in which the convictions are recorded or as the Court directs."

The section stood in that form until the passage of the Crimes Amendment Act 1982 (Cth). Section 7 of that Act, which came into operation on 1 November 1982, provided in sub-s. (1) that s. 19 of the Principal Act was repealed and the following section substituted:-

"19. (1) Where a person who is convicted of an offence against the law of the Commonwealth -

(a) is at the time of his conviction serving a term of imprisonment for another offence (whether against the law of the Commonwealth or of a State or Territory); or

(b) has been sentenced to serve a term of imprisonment (otherwise than in default of the payment of a fine) for another offence (whether against the law of the Commonwealth or of a State or Territory), but has not at the time of his conviction commenced to serve that term of imprisonment.

the court before which the person is convicted may, by order, direct that any term of imprisonment imposed for or in respect of the first-mentioned offence (including a term of imprisonment in default of the payment of a fine imposed for the offence) shall commence at the expiration of the term of imprisonment that the person is so serving or had been so sentenced to serve, as the case may be.

(2) Where -

(a) a person is convicted of 2 or more offences against the law of the Commonwealth before the same court at the same sitting; and

(b) the person is sentenced to -

(i) 2 or more terms of imprisonment for the offences;

(ii) a term or terms of imprisonment for one or more of the offences and a term or terms of imprisonment in default of the payment of a fine or fines imposed for the other offence or offences; or

(iii) 2 or more terms of imprisonment in default of the payment of fines imposed for the offences.

the court may, by order, direct that all or some of the sentences shall be cumulative.

(3) Where 2 or more sentences are, under sub-section (2), directed to be cumulative, they shall take effect one after the other in such order as the court directs or, in default of such a direction, in accordance with the order in which the convictions are recorded.

(4) Where -

(a) a person is convicted of an offence or offences against the law of the Commonwealth, and an offence or offences against the law of a State or Territory, before the same court at the same sitting; and

(b) the person is sentenced to -

(i) 2 or more terms of imprisonment for the offences;

(ii) a term or terms of imprisonment for one or more of the offences and a term or terms of imprisonment in default of the payment of a fine or fines imposed for the other offence or offences; or

(iii) 2 or more terms of imprisonment in default of the payment of fines imposed for the offences.

the court may, by order, direct that the sentence passed for the offence, or all or any of the sentences passed for the offences, against the law of the Comonwealth shall take effect after the sentence passed for the offence, or all or any of the sentences passed for the offences, against the law of the State or Territory, but nothing in this sub-section shall be taken to prevent the court from directing that a sentence passed for an offence against the law of the State or Territory shall take effect after sentence passed for an offence against the law of the Commonwealth.

(5) Where -

(a) a person is convicted of an offence against the law of the Commonwealth; and

(b) the person is sentenced to a term of imprisonment for the offence and also to a term of imprisonment in default of the payment of a fine imposed for the offence.

the court may, by order, direct that the term of imprisonment in default of the payment of the fine shall take effect after the other term of imprisonment.

(6) Nothing in this section shall be taken to prevent a court from directing that any sentences of imprisonment shall be served concurrently.

(7) A reference in this section to a fine shall be read as including a reference to a pecuniary penalty, an amount in respect of costs or any other amount ordered to be paid by an offender for or in respect of an offence."

Sub-section 7(2) of the Crimes Amendment Act 1982 (Cth) provided:-

"(2) Notwithstanding the repeal of section 19 of the Principal Act effected by sub-section (1), the provisions of section 19 of the Principal Act continue to apply, after the commencement of this section, to and in relation to offences committed before the commencement of this section as if that section had not been repealed."

By the Interpretation (Amendment) Ordinance 1985 (A.C.T.) which, as has been mentioned, took effect from 28 June 1985, the Interpretation Ordinance 1937 was repealed (see s. 23) and s. 33G was inserted in the Interpretation Ordinance 1967 (A.C.T.). That section provided:-

"33G. (1) The provisions of sections 13, 14, 15, 17, 19, 19A, 19B, 20, 20A, 20B, 21, 21B and 21C of the Crimes Act 1914 shall, so far as they are applicable, apply in relation to all Ordinances as if an Ordinance were a law of the Commonwealth.

(2) In sub-section (1), a reference to an Ordinance shall be read as including a reference to a continued State law and to regulations, rules or by-laws made under an Ordinance or continued State law."

The reference to a continued State law includes, by virtue of s. 5 of the Interpretation Ordinance 1967 (A.C.T.), a reference to the Crimes Act (N.S.W.) in its application to the Territory.

By the Interpretation (Amendment) Ordinance (No. 2) 1985, which took effect from 7 November 1985, that is to say on a date subsequent to the date upon which the appellant was convicted and sentenced by the Supreme Court, s. 33G of the Interpretation Ordinance 1967 (A.C.T.) was amended by, inter alia, omitting from sub-s. (1) the reference to s. 19 of the Crimes Act (Cth).
Counsel for the appellant put his submissions on this aspect of the matter in the alternative. First, it was submitted that the relevant date as at which to determine whether the Supreme Court had power to impose cumulative sentences in respect of the offences said to have been committed on 22 October 1984 under s. 97 of the Crimes Act (N.S.W.) was the date of the commission of those offences. At that date s. 7 of the Interpretation Ordinance 1937 (A.C.T.) remained in force but it was submitted that, in the events which had happened, that section did not operate to make applicable s. 19 of the Crimes Act (Cth) either in the form which it bore prior to the coming into operation on 1 November 1982 of s. 7 of the Crimes Amendment Act 1982 (Cth) (which may, for convenience, be referred to as s. 19 in its pre-1982 form) or in the form which it took as a result of the coming into operation of that provision (to which we will refer as s. 19 in its 1982 form).

It was said that s. 7 of the Interpretation Ordinance 1937 (A.C.T.) did not continue to make applicable s. 19 in its pre-1982 form because that section had been repealed by the Crimes Amendment Act 1982 (Cth). It was said that it did not make applicable s. 19 in its 1982 form because the section in that form did not properly fall within the words of s. 7 namely, s. 19 of the Crimes Act 1914-1932 "as amended from time to time". Section 7 of the Crimes Amendment Act 1982 (Cth) was said not to amend s. 19 as previously in force but to repeal it.
The only statement relied on to support the submission that the relevant date was the date of the commission of the offence, namely 22 October 1984, was a statement in the judgment of Fox J. in Murrell v. The Queen (1985) 4 FCR 168 at p. 173. His Honour referring to s. 19 of the Crimes Act (Cth), said:-

"Section 19 was repealed in 1982, and a new section substituted, but the old section continues in force in respect of offences committed before 1 November 1982, as were these."

That statement of Fox J. does not support the appellant's submission. What his Honour was there referring to was the express provision in sub-s. 7(2) of the Crimes Amendment Act 1982 (Cth), the text of which is set out above, that, notwithstanding the repeal of s. 19, its provisions were to continue to apply to and in relation to offences committed before the commencement of s. 7 as if s. 19 had not been repealed.
We are of opinion that the submission that the relevant date was the date of the commission of the offence and not the date upon which the appellant was convicted and sentenced should not be accepted. The question has not, so far as we are aware, been the subject of judicial consideration, but, being essentially one as to the powers of the Supreme Court, we think that, consistently with the principles decided in Maxwell v. Murphy (1957) 96 CLR 261, that question must be resolved by reference to the relevant legislative provisions applicable to the particular circumstances of the case at the time the power is exercised. It cannot be correct that, where the Supreme Court is imposing sentences in respect of a number of offences, its powers may vary according to the respective dates of commission of the offences in respect of which sentences are being imposed. Being clearly of that view, we need not consider whether s. 7 of the Interpretation Ordinance 1937 (A.C.T.) operated to make applicable s. 19 in either of its forms as s. 7 had itself ceased to be in operation prior to the date when the appellant was convicted and sentenced. But we should not be taken as lending any support to the view that s. 7 of the Interpretation Ordinance 1937 (A.C.T.) ceased to have any relevant operation after 1 November 1982 when s. 7 of the Crimes Amendment Act 1982 (Cth) came into operation.
We turn, then, to the first alternative submission of the appellant which was made on the assumption that the relevant date was the date on which the appellant was convicted and sentenced. Section 33G of the Interpretation Ordinance 1967 (A.C.T.) was then in force providing that the provisions of s. 19 of the Crimes Act (Cth) were, so far as they were applicable, to apply in relation to all Ordinances (including a continued State law) as if an Ordinance (or a continued State law) were a law of the Commonwealth.
On the face of the provision there would seem to be no doubt that, in the circumstances of this case, s. 19 in its 1982 form (it not having been relevantly amended in the interim) was applicable. If so, that section clearly provided authority for the order made by the Supreme Court as there is no doubt that the appellant was a person convicted of two or more offences against a continued State law before the same court at the same sitting within the meaning of sub-s. 19(2) as modified by s. 33G of the Interpretation Ordinance 1967 (A.C.T.).
The primary argument advanced to support the submission that s. 33G of the Interpretation Ordinance 1967 (A.C.T.) did not operate to make s. 19 of the Crimes Act (Cth) applicable, was that s. 33G should be given no operative effect additional to that which s. 7 of the Interpretation Act 1937 (A.C.T.) had immediately before s. 33G took effect - an operation which, according to the appellant's submission already referred to, did not make applicable s. 19 in either its pre-1982 form or its 1982 form. We are unable to accept this submission. Section 33G was a substantive enactment which clearly, in our view, operated to make applicable s. 19 of the Crimes Act (Cth) in the form in which it stood when s. 33G came into operation, namely 28 June 1985.
Reliance was also placed on the following passage in the judgment of Fox J. in Campbell v. The Queen (1985) 4 FCR 137 at p. 138:-

"The Crown submitted at one stage that the relevant provision was s. 19 of the Crimes Act 1914 (Cth) which it contended was made applicable by s. 7 of the Interpretation Ordinance 1937 (Cth). Having in mind the terms of s. 19, the submission is clearly untenable, and I think was abandoned."

It was submitted that what his Honour was saying in the passage cited was that s. 19 of the Crimes Act (Cth) was not made applicable by s. 7 of the Interpretation Ordinance 1937 (A.C.T.) and that, by parity of reasoning, s. 19 was not made applicable by s. 33G of the Interpretation Ordinance 1967 (A.C.T.).

There is, we think, no substance in the submission. In the case cited the orders made by the Supreme Court directing that the appellant Campbell serve terms of imprisonment had been made pursuant to sub-s. 556C(4) of the Crimes Act (N.S.W.) in its application to the Territory. The question which Fox J. was addressing was whether it could be said that a person in respect of whom such orders were made was a person convicted and sentenced for an offence so as to bring the case within the language of s. 19 of the Crimes Act (Cth). In expressing the view that that question was capable only of a negative answer because of the language in which s. 19 was expressed, Fox J. was saying nothing of relevance to the issue now before this Court.
The second alternative submission made on behalf of the appellant was that the relevant date for determining the extent of the power of the Supreme Court was the date of the hearing (or, possibly, the determination) of the appeal to this Court. The significance of that submission lies in the circumstance that s. 19 of the Crimes Act (Cth) has been deleted from the list of sections of that Act made applicable by s. 33G of the Interpretation Ordinance 1967 (A.C.T.), that amendment having taken effect on 7 November 1985.
Counsel submitted that support for the above submission was to be found in a passage in the judgment of a Full Court of this Court in Dominquez v. The Queen (1985) 63 ALR 181. In that case the appellant had been convicted of three offences against s. 4 of the Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.). The sentences of imprisonment imposed were three years on the first count, three years on the second count to be served concurrently with the sentence imposed on the first count, and six years on the third count cumulative upon the sentence imposed on the first count. After rejecting the submissions put on behalf of the appellant in support of his appeal against the convictions, the Court turned to the issues raised in relation to the sentences imposed. One of those issues was whether the Supreme Court had power to impose a cumulative sentence. In dealing with that issue, the Court made reference to the applicability of s. 19 of the Crimes Act (Cth) but said (p. 195) that it was unnecessary to consider that issue at any length. The Court referred to the Interpretation (Amendment) Ordinance 1985 (A.C.T.) and the Interpretation (Amendment) Ordinance (No. 2) 1985 (A.C.T.) and said:-

"The effect of the 1985 Ordinances, which amend the Interpretation Ordinance 1967, is that s. 19 of the Crimes Act 1914 is no longer to apply to an Ordinance as if an Ordinance were a law of the Commonwealth. The present case is concerned with offences under the Poisons and Narcotic Drugs Ordinance 1978 and accordingly the matter of accumulation of sentence is governed by the Crimes Act of New South Wales as amended in its application to the Australian Capital Territory, and in particular s. 447."

We think it is clear that, in referring to s. 19 of the Crimes Act (Cth) as being no longer applicable, the Court assumed, contrary to the fact, that the Interpretation (Amendment) Ordinance (No. 2) 1985 had taken effect prior to the date upon which the appellant had been convicted and sentenced. We do not take the Court to have been deciding that, in determining whether the Supreme Court had power to impose a cumulative sentence, the law in force at the date of the hearing (or determination) of the appeal was to be applied where that law differed from the state of the law at the date of conviction and sentence by the Supreme Court.
We are therefore of opinion that the Supreme Court had power, derived from s. 19 of the Crimes Act (Cth) and s. 33G of the Interpretation Ordinance 1967 (A.C.T.), to order that the sentences imposed in respect of the offences said to have been committed on 22 October 1984 be served concurrently as between themselves but cumulatively upon the sentence imposed in respect of the offence committed on 8 May 1985, the latter sentence being itself cumulative upon the sentence imposed in respect of the offence committed on 11 April 1985. We should not, however, leave this aspect of the matter without bringing under notice that the amendment to s. 33G of the Interpretation Ordinance 1967 (A.C.T.) omitting therefrom the reference to s. 19 of the Crimes Act (Cth) may have results unintended by the draftsman. The matter would seem to require further consideration by the legislature.
Be that as it may, the foregoing discussion of the Supreme Court's power to order the sentences imposed for the offences alleged to have been committed on 22 October 1984 to commence at the expiration of the sentence imposed for the offence of armed robbery committed on 8 May 1986 is not a matter that bears on the outcome of the appeal brought in relation to the appellant's convictions for those offences. For the reasons earlier given, the convictions for those offences must be set aside.
In summary then the appeals (No. A.C.T. G63 and G65 of 1985) against the sentences imposed in respect of the offences committed on 11 April and 8 May 1985 are dismissed. The appeal (No. A.C.T. G64 of 1985) against the convictions of the appellant for the offences alleged to have been committed on 22 October 1984 is allowed. Those convictions are set aside and a new trial is ordered. Whether a new trial in fact takes place is not a matter for either the Supreme Court or this Court but for the Director of Public Prosecutions.

[1986] FCA 386

11 SEPTEMBER 1986