Munro v The Queen
[2014] ACTCA 11
•24 April 2014
MARK ANTHONY MUNRO v THE QUEEN
[2014] ACTCA 11 (24 April 2014)
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – where statement details system of work employed by cleaner relevant to when DNA may have been deposited at scene – whether statement made in circumstances that make it highly probably that the statement is reliable: s 65(2)(c) Evidence Act 2011 (ACT) – where related to system regularly repeated and therefore likely to be remembered, where no personal interest in trial, where desire to maintain reputation likely outweighed by inclination to avoid criminal prosecution – s 65(2)(c) does not apply to a statement simply because it was made to a police officer
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – whether trial judge erred in ruling probative value not outweighed by danger of prejudice: s 137 Evidence Act 2011 (ACT) – where author deceased and therefore unavailable for cross-examination – whether jury would assign undue weight to statement in absence of cross-examination – where statement admitted for limited purpose – where judicial directions and counsel’s address to jury available
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to unreliability of witness – where witness involved in offence charged – where witness had lied in earlier proceedings – s 165 Evidence Act 2011 (ACT) does not require trial judge to form a view as to unreliability of evidence before directing jury – where trial judge gave further directions at request of appellant, and no further request, indicating adequacy of directions
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to circumstantial evidence – whether evidence in circumstantial case need to be proved beyond a reasonable doubt – evidence in “strands in the cable” case not necessary to prove individual strands beyond a reasonable doubt, nor necessary that individual strands support guilt – misdescription of case as both direct evidence and circumstantial not misleading – where no request for redirection
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to statement by cleaner – where misdirection that statement was not hearsay immaterial – where author deceased and therefore unavailable for cross-examination – whether jury should have been warned of unreliability – where warning at discretion of judge – where no basis for unreliability beyond unavailability – where no request for redirection
APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether verdict unsafe and unsatisfactory – where evidence of unreliable witness supported by other evidence in trial – where jury adequately directed – where the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies, and was not so tainted as to make verdicts of not guilty the only proper verdicts
APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – where no application under r 5531 Courts Procedures Rules 2006 (ACT) – r 5531 not a formality to be neglected – operation of rule alone sufficient to dispose of appeal grounds alleging misdirection
APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – aggravated robbery and intentionally inflict grievous bodily harm – whether disparity between sentences imposed on appellant and co-offender – where appellant sentenced for two offences and co-offender only one – common elements in offences not a reason to reduce sentence, but a factor in determining concurrency – where appellant was individual who discharged weapon causing grievous bodily harm, not co-offender – where co-offender not sentenced on basis of discharge of firearm – where co-offender pleaded guilty – where subjective circumstances different
APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether manifestly excessive – serious example of offending – where offences called for strong general deterrent effect
APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether trial judge in error in relying on aggravating feature not proved beyond reasonable doubt – where criminal history suggested appellant was at large in breach of bail at committal – where history possibly inconsistent – where no inference available that the appellant had absconded from bail in South Australia – where trial judge made findings of aggravating circumstances, necessary inference is they were taken into account on sentence
Evidence Act 2011 (ACT), ss 68, 59, 65(2)(c), 128, 137, 165, Sch 2
Supreme Court Act1933 (ACT) s 37O (3)
Court Procedures Rules 2006 (ACT), r 5531
Criminal Appeal Rules (NSW), r 4
Aytugrul v The Queen (2012) 247 CLR 170
Chamberlain v The Queen (No.2) (1984) 153 CLR 521
Cheug v The Queen (2001) 209 CLR 1
Conway v The Queen (2000) 98 FCR 204
Dorwicge v The Queen [2011] NSWCCA 62
Driscoll v The Queen (1977) 137 CLR 517
House v The King (1936) 55 CLR 499
Hussain v The Queen [2013] ACTCA 42
M v The Queen (1994) 181 CLR 487
Nantahkum v The Queen [2013] ACTCA 40
Pearce v The Queen (1998) 194 CLR 610
R v Hillier (2007) 233 ALR 634
R v King [2003] NSWCCA 352
R v Maloney [2000] NSWCCA 256
R v Ponsfield (1999) 48 NSWLR 327
R v Vincent (2002) 133 A Crim R 206
R v Yates [2002] NSWCCA 520
Reeves v The Queen [2013] NSWCCA 34
Richardson v The Queen [2013] NSWCCA 218
Shepherd v The Queen (1990) 97 ALR 161
Stephen Odgers, Uniform Evidence Law, 10th Edition
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 19 - 2013
No. SCC 178 of 2011
Judges: Refshauge ACJ, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 24 April 2014
IN THE SUPREME COURT OF THE ) No. ACTCA 19 - 2013
) No. SCC 178 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARK ANTHONY MUNRO
Appellant
AND: THE QUEEN
Respondent
ORDER
Judges: Refshauge ACJ, Penfold and Burns JJ
Date: 24 April 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal against convictions is dismissed.
The appeal against the sentence is upheld.
The appellant is re-sentenced as follows:
a) for robbery to imprisonment for 10 years;
b) for intentionally inflicting grievous bodily harm to imprisonment for 9 years;
c) the grievous body harm sentence is to be accumulated on the robbery sentence as to 5 years accumulated, giving a total sentence of 15 years imprisonment;
d) a non parole period of 10 years is set;
e) the sentence is backdated to 19 December 2012;
f) the non-parole period is backdated to 19 December 2012 and expires on 18 December 2022.
IN THE SUPREME COURT OF THE ) No. ACTCA 19 - 2013
) No. SCC 178 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARK ANTHONY MUNRO
Appellant
AND: THE QUEEN
Respondent
Judges: Refshauge ACJ, Penfold and Burns JJ
Date: 24 April 2014
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE ACJ and PENFOLD J:
We have had the opportunity to read the judgment of Burns J in draft. We agree with his conclusions, and in particular agree that:
(a) the appeal against conviction must be dismissed; and
(b) that the appeal against sentence must be allowed.
However, there are some comments we wish to make about the grounds of appeal relating to the admission of the statement of the deceased Mr Lawrence Grace, and also about the sentence appeal, since we have come to a slightly different conclusion about the appropriate resentencing of Mr Munro. In dealing with these matters, we gratefully rely on Burns J’s descriptions of the trial and the evidence relevant to this appeal, and also of the sentencing proceedings.
CONVICTION APPEAL
Appeal grounds (a) and (b)(iii) both relate to the statement made by Mr Grace, the former cleaner of the area around the bus-stop opposite the Mawson Club, to a police officer in 2010, nearly three years before he died in November 2012. Ground (a) challenges the decision to admit the statement despite Mr Grace being unavailable for cross-examination, and ground (b)(iii) complains of inadequate directions given to the jury about how they should assess the contents of Mr Grace’s statement. Both grounds depend on a consideration of the reliability of that statement.
Admission of Mr Grace’s statement on grounds of reliability
The trial judge found that Mr Grace’s statement was, in the words of s 65(2)(c) of the Evidence Act 2011 (ACT), “made in circumstances that make it highly probable that the [statement] is reliable”, and so found on the basis that the statement was made to a police officer.
We consider that there is a real question whether the making of a statement to a police officer, even in circumstances in which the maker of the statement acknowledges an obligation to tell the truth to the best of his or her knowledge and belief and a risk of prosecution if he or she does not do so, is sufficient to satisfy the test in s 65(2)(c).
First, it is clear that imposing a legal obligation on a person to tell the truth does not always work. Trial courts, criminal and civil, regularly hear starkly conflicting testimony from different witnesses all of whom are giving sworn evidence and thereby exposing themselves to perjury charges if they do not tell the truth. This suggests either or both that a legal obligation to tell the truth does not always work to produce truthful evidence or does not always work to produce evidence that is otherwise reliable; that is, if two witnesses give irreconcilable sworn evidence, then at least one of them must be giving evidence that is either untrue or otherwise unreliable.
Secondly, reliability seems to relate not only to whether a person is trying to tell the truth but also to whether they ever had the knowledge that is sought to be extracted, and whether they are capable of recalling it, and reporting it accurately, at the relevant later time.
Section 165(1) of the Evidence Act refers to “evidence of a kind that may be unreliable”, which includes:
(a)evidence in relation to which part 3.2 (Hearsay) or part 3.4 (Admissions) applies;
(b)identification evidence;
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d)evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e)evidence given in a criminal proceeding by a witness who is a prison informer;
(f)oral evidence of questioning by an investigating official of a defendant that is recorded in writing and has not been signed, or otherwise acknowledged in writing, by the defendant;
(g)in a proceeding against the estate of a deceased person—evidence presented by or on behalf of a person seeking relief in the proceeding about a matter about which the deceased person could have given evidence if the deceased person were alive.
Some of these kinds of evidence apparently acquire their unreliability from the risk that the witness concerned may not be inclined to tell the truth (for instance the evidence referred to in s 165(1)(d)) but others, particularly those described in ss 165(1)(b) and (c), are kinds of evidence that of their nature are recognised as potentially unreliable even assuming that the witness is genuinely doing his or her best to tell the truth. Evidence that of its nature is recognised as unreliable does not become more reliable because it is given to a police officer by a person who acknowledges an obligation to tell the truth on pain of prosecution.
Where the reliability of evidence depends on a person’s inclination to tell the truth (rather than their capacity to give an accurate account of the relevant circumstances), then the fact that a person gives evidence on pain of prosecution if it is false, or even on oath in a courtroom, may make the person more likely to give reliable evidence, but generally only if there are no countervailing incentives to try to hide the truth.
That is, acknowledging an obligation to tell the truth, as is done in making a police statement, does not necessarily make a person’s representation reliable.
Furthermore, if the legislative intention were that a representation made in a police statement was to be treated as, of itself, necessarily or even presumptively “highly probable” to be reliable, this intention could very easily have been made explicit in s 65(2).
Finally, we note the remarks of the Full Court of the Federal Court in Conway v The Queen (2000) 98 FCR 204, quoted by Burns J at [76] below, to the effect that s 65(2)(c), for good reason, imposes an onerous burden on a party seeking the admission of evidence that cannot be tested in cross-examination.
For all those reasons, we remain unconvinced that s 65(2)(c) applies to a statement simply because it was made to a police officer or because it was made in the context of an understanding that a false statement would expose the maker to prosecution.
However, that does not mean that we consider the trial judge’s decision to admit Mr Grace’s statement to have been wrong.
We consider that it was open to the trial judge to find that the circumstances in which Mr Grace made his statement made it highly probable that the representations made in the statement were reliable, by reference to the following facts:
(a) that Mr Grace was describing a system of work that was likely to be well-remembered, not only because of regular repetition over some five years, but also because as a system it was, by comparison with a one-off event on a specific day, likely to be organised and structured, and therefore easier to recall;
(b) that Mr Grace apparently had no personal interest in the subject-matter of, the participants in, or the outcome of the trial in which his evidence was relevant;
(c) that if Mr Grace had any wish to maintain or enhance his reputation as a cleaner by exaggerating his conscientiousness in his approach to cleaning the relevant parts of the area near the Mawson Club (despite having retired from that role several years earlier), it would have been outweighed by an inclination to avoid a criminal prosecution for giving false information about a matter that to some extent at least could have been checked with his former employer.
We note first that taking account of an obligation to tell the truth, in assessing the likelihood that a natural wish to make himself look better might have led Mr Grace to exaggerate the quality of his cleaning work in any significant way, is not inconsistent with our view that police statements are not necessarily reliable for the purposes of s 65(2)(c). As earlier discussed, the obligation to tell the truth may be a minor incentive to a person who has a significant personal interest in telling a lie. This does not mean that it is not a relevant factor to a person with only a minor interest in gilding the lily.
Secondly, the possibility that Mr Grace had been exaggerating the quality of his work to a minor and uncheckable degree was a matter that was well within the understanding of the jury in the application of those qualities that jurors are exhorted to bring to their deliberations, in particular their common sense and experience of “people and human affairs”. Having regard also to the trial judge’s reminders that Mr Grace had not been able to be cross-examined and that his evidence therefore needed to be considered carefully, we do not consider that the jury would have placed inappropriate reliance on Mr Grace’s statement.
For those reasons, we agree with Burns J that the admission of Mr Grace’s statement was not an error by the trial judge, even if the trial judge’s expressed reason for admitting the statement was in our view inadequate.
Probative and prejudicial value of Mr Grace’s statement
It was also argued on behalf of the appellant that Mr Grace’s statement should have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant.
Section 65(2)(c) permits the admission of evidence that, by definition:
(a) has been found highly probable to be reliable, and therefore presumably of significant probative value to the extent of its relevance; but
(b) is not able to be tested in cross-examination.
This suggests that, despite the comments of the Federal Court in Conway v The Queen quoted at [76] below that “Section 65(2)(c) has the potential to operate unfairly against an accused person”, the unavailability of cross-examination is not necessarily and of itself a source of unfair prejudice, and is certainly not a complete answer to a tender of evidence that is not subject to cross-examination.
In this case, the appellant’s argument as to unfair prejudice was that there was a danger that the jury might assign undue weight to the evidence because of the inability to cross-examine Mr Grace.
First, as Burns J has noted, the evidence was evidence of a system rather than of what happened on a particular day.
Secondly, the evidence was consistent with other evidence, including the photographs of the bus shelter after the robbery, showing it to be relatively clean, and evidence that only seven cigarette butts were collected from the shelter by police.
Finally, the kind of undermining of Mr Grace’s evidence that would have been likely in cross-examination (for instance, by an admission that what Mr Grace described had not happened exactly as he described it on every single day during his employment) would have been well within the imagination of the jury, could properly have been raised by counsel in addressing the jury, and would no doubt have been taken into account by the jury in assessing the weight of the evidence.
We note in this context that trial counsel’s request, made during a break in the trial judge’s summing up (quoted by Burns J at [93] below), for a direction under s 165(1)(a) of the Evidence Act in a specific form, was met by the trial judge with a specific reference to the defence’s inability to cross-examine Mr Grace and a direction that his statement should therefore be considered carefully; as well, his Honour had already made this point when the statement was admitted into evidence.
We agree with Burns J that the risk of misuse by the jury was minimal and that the trial judge’s directions to the jury on this matter were adequate to deal with that risk.
Impact of Mr Grace’s self-interest on the reliability of his statement
Finally, counsel argued in relation to ground (b)(iii) that Mr Grace was self-interested in some of the representations he made, such as the representation that he took pride in his cleaning work, and that the trial judge should have directed the jury that his evidence might have been unreliable to that extent.
We have already indicated our agreement with Burns J’s view that the trial judge had properly found that Mr Grace’s statement was admissible because in the circumstances in which it was made it was highly probable that the statement was reliable. If there were any convincing argument about a real risk of unreliability as such (as distinct from the risk arising from an inability to cross-examine Mr Grace), then the evidence should not have been admitted at all, rather than being the subject of an unreliability direction.
We have already indicated at [16] to [18] above our view that if Mr Grace’s statement had been at all influenced by self-interest in the nature of that raised on appeal, it would have been to a minor degree and in minor respects, and that any such inclination would have been within the understanding of the jurors and adequately dealt with by them.
We agree with Burns J that there was no reason for the trial judge, having admitted Mr Grace’s statement on the basis of a high probability that it was reliable, to have directed the jury that the evidence might have been unreliable on the grounds of self-interest.
SENTENCE APPEAL
We agree with Burns J that the trial judge fell into error in sentencing Mr Munro on the basis of an interpretation of Mr Munro’s criminal record that was not established beyond reasonable doubt, and that the sentencing discretion is accordingly reopened, subject of course to the Court of Appeal being satisfied that a different sentence is appropriate.
We are also not satisfied that the trial judge was in error in his approach to the sentence imposed by Gray J on Mr Munro’s co-offender Sam Melkie.
As described by Burns J, in sentencing Mr Munro the trial judge appears to have started from the position that the sentence that would, but for his plea of guilty, have been imposed on Mr Munro’s co-offender Mr Melkie for his role in the robbery was an appropriate starting point. On appeal it was pointed out that when Mr Melkie was sentenced by Gray J for the robbery, his Honour took into account the fact that a firearm had been discharged, seriously injuring a security guard.
The discharge of the firearm was said to have been committed not by Mr Melkie but by Mr Munro who, as well as being charged with robbery, was also charged with the offence of intentionally inflicting grievous bodily harm on the security guard and found guilty of that offence by the jury.
Counsel for the appellant argued that because the appellant had been charged separately in respect of the discharge of the firearm and the resulting injury of the security guard, his sentence for the robbery should not have taken account of the use of the firearm and that injury.
The High Court’s decision in Pearce v The Queen (1998) 194 CLR 610 (Pearce) requires a court sentencing for multiple offences to determine the appropriate sentence for each separate offence and then, in determining how the sentences should be served and in particular the extent to which they should be served concurrently, to have regard, among other things, to any common elements between the offences.
In Pearce McHugh, Hayne and Callinan JJ said at [40]:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.
At [68], Gummow J said:
However, the principles involved in the notion of “double jeopardy” also apply at the stage of sentencing. They find expression in the rule of practice, “if not a rule of law”, against duplication of penalty for what is substantially the same act...
The remarks by McHugh, Hayne and Callinan JJ in Pearce quoted above were preceded, among other things, by analysis of the concept of “double punishment” by reference to the elements of different offences, as follows (at [36]–[39]):
First, in creating offences, legislatures must necessarily proscribe conduct by reference to particular elements. A complex act by an accused may contain all the elements of more than one offence.
Secondly, it follows that to punish the whole of the accused’s criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each.
Thirdly, since the enactment of s 33 of the Interpretation Act 1889 (UK) and its Australian equivalents, legislatures have sought to address some of the questions that then arise. At first, the focus was upon punishment twice for the same offence. More recently, however, some legislation in Australia has sought to deal with whether an offender can be punished twice for the same act or omission. And, of course, in Australia, some legislation has sought to deal with the consequences of overlapping state, territory, or federal legislation.
Fourthly, and very importantly, it is highly undesirable that the process of sentencing should become any more technical than it is already. Nearly thirty years ago, Sir John Barry, in his lecture on “The Courts and Criminal Punishments” said:
“Dr Leon Radzinowicz has rightly observed that the criminal law is fundamentally ‘but a social instrument wielded under the authority of the State to secure collective and individual protection against crime’. It is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime.”
That remains true. “[E]xcessive subtleties and refinements” must be avoided.
In Nantahkum v The Queen [2013] ACTCA 40, Penfold J referred to the extracts from Pearce quoted above, and said (at [36]):
It seems to me that when their Honours said (at [40]) that “To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common”, they may have intended to refer to the elements properly so described of the relevant offences (as used, for instance, in the statement that “A complex act by an accused may contain all the elements of more than one offence.”), not simply to factual aspects of the “complex act” that were, directly or peripherally, relevant to each of two or more offences.
Although the use or threat of force is an element of the offence of robbery, we can find no basis in the material before us, specifically the sentencing remarks of Gray J in relation to Mr Melkie, to suggest that Mr Munro’s shooting of the security guard was relied on as the use or threat of force element of the robbery in relation to Mr Melkie. Rather, Gray J referred to Mr Melkie pulling one of the security guards to the ground, while also making it clear that the shooting of another security guard added to the seriousness of the offence and was a matter of aggravation specifically taken into account. That is, Mr Munro’s shooting of the security guard was not an element of the offence of robbery for which Mr Melkie was sentenced.
Nor, as far as we can see from the trial judge’s sentencing remarks in relation to Mr Munro, was the shooting of the security guard treated as an element of the robbery offence for which Mr Munro was sentenced. To the contrary, the trial judge in his sentencing remarks twice described the shooting as unnecessary, pointless and cowardly because Mr Melkie was already running away with the three bags of money and the security guard was sheltering behind the metal guard around a small tree and was not showing any aggression towards Mr Munro. Since Mr Munro was to be sentenced separately for the offence of inflicting grievous bodily harm by discharging the firearm, that conduct should not in our view also have been treated as an aggravating factor in sentencing him for the robbery. If the trial judge did take account of that aggravating factor, then he would have fallen into error. In fact the trial judge, having identified a number of respects in which a higher sentence for Mr Munro than for Mr Melkie would have been appropriate, said this:
However, his Honour Gray J took into account, as an aggravating factor in the sentencing of Mr Melkie, that Mr Matangi was seriously injured in the course of the robbery, something that does not apply to the offender.
Notwithstanding the differences between Mr Melkie and the offender, I consider that I should impose the same sentence of imprisonment for 12 years upon the offender as was determined by his Honour Gray J as the starting point, before the discount in sentence for the guilty plea, for the sentence that he imposed upon Mr Melkie.
[emphasis added]
His Honour’s remarks suggest to us that the significance of Mr Munro having been charged with the separate grievous bodily harm offence was not lost on the trial judge, and that his adoption of the starting point of 12 years’ imprisonment for Mr Munro probably reflected (presumably instinctive) adjustments to the original figure of 12 years, downwards to exclude the aggravating factor of the injury to the security guard and upwards to reflect the other grounds on which Mr Munro could legitimately have been sentenced to a longer term than Mr Melkie.
For these reasons, we are not satisfied that an error by the trial judge in sentencing Mr Munro, being an error in relation to the significance of the aggravating factor in Mr Melkie’s sentence, has been made out.
We note, however, that the absence of common elements in the robbery and the grievous bodily harm offence does mean that any claim to concurrency between the robbery sentence and the grievous bodily harm sentence must rely only on the totality principle and an assessment of the total sentence that would properly reflect Mr Munro’s total criminality.
As already indicated, we agree with Burns J that the trial judge’s approach to the suggestion that Mr Munro had committed these offences while subject to conditional liberty was an error reopening the sentencing discretion, and that the appeal against sentence must be allowed. Having regard to the matters already mentioned, as well as to the subjective circumstances canvassed by the trial judge and a brief consideration of the relevant sentencing statistics available from the NSW Judicial Commission Sentencing Database, we would set the sentence for the robbery offence at ten years’ imprisonment, and the sentence for the grievous bodily harm offence at nine years’ imprisonment, to be accumulated on the robbery offence so as to add five years to the total sentence. For that total sentence of 15 years starting on 19 December 2012 and running until 18 December 2027, we would set a non-parole period of 10 years, to run from 19 December 2012 until 18 December 2022.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the Reasons for Judgment herein of their Honours Acting Chief Justice Refshauge and Justice Penfold.
Associate:
Date: 24 April 2014
IN THE SUPREME COURT OF THE ) No. ACTCA 19 - 2013
) No. SCC 178 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MARK ANTHONY MUNRO
Appellant
AND: THE QUEEN
Respondent
Judges: Refshauge ACJ, Penfold and Burns JJ
Date: 24 April 2014
Place: Canberra
REASONS FOR JUDGMENT
BURNS J:
On 15 March 2013, the appellant was found guilty by a jury of two offences:
a)an offence contrary to s 310 of the Criminal Code 2002 (ACT) alleging that on 10 May 2004 he robbed Chubb Security Services Ltd of $151,995.35 and at the time of doing so he was in the company of Sam Melkie and had with him an offensive weapon, namely a gun; and
b)an offence contrary to s 19 of the Crimes Act 1900 (ACT) alleging that on 10 May 2004 he intentionally inflicted grievous bodily harm on Kevin Matangi.
On 14 May 2013, the trial judge convicted the appellant of these offences and imposed the following sentences:
for the offence of aggravated robbery, imprisonment for 12 years from 19 December 2012 to 18 December 2024; and
for the offence of intentionally inflicting grievous bodily harm, imprisonment for 10 years from 19 December 2020 to 18 December 2030.
His Honour set a single non-parole period of 13 years commencing 19 December 2012 and expiring 18 December 2025.
The appellant has appealed from the convictions, and against the sentences imposed. The grounds of appeal against conviction are:
a)The Learned Trial Judge erred in admitting into evidence the evidence [of] the statement of Lawrence John Grace dated 15 February 2010.
Particulars
·His Honour erred in finding that the conditions [of] section 65 of the Evidence Act 2011 had been satisfied.
·His Honour erred in refusing to exclude the statement in [the] exercise of his discretion under section 137 of the Evidence Act2011.
b)In summing up to the jury His Honour misdirected the jury in the following respects:
i.His Honour failed to adequately direct the jury as to the unreliability of the witness David Will.
Particulars
· His Honour failed to adequately charge the jury in respect of the significance of the protection that had been offered to the witness Will against being prosecuted in relation to both the instant offences and for giving false evidence in [other proceedings].
· In the circumstances of this case it was appropriate that the jury be directed that it was dangerous to convict on the basis of the evidence of Mr Will.
ii.His Honour failed to direct the jury appropriately in respect of the circumstantial evidence led by the Crown.
Particulars
· His Honour incorrectly asserted that the Crown put forward two cases against the appellant – a “direct evidence” case and a “circumstantial case”. The direction was, in all the circumstances, misleading and obscured the fact that the fate of the Crown’s case, however characterised, was inextricably linked to the acceptance beyond a reasonable doubt of the witness David Will.
· His Honour failed to unequivocally direct the jury that in respect of the alternative “circumstantial case” said by his Honour to have been put by the Crown the evidence of Mr Will had to be accepted beyond reasonable doubt for the Crown to succeed in proving the charges beyond a reasonable doubt.
· His Honour erred in refusing to address the jury as to the significance of the description/identification evidence in assessing whether or not a reasonable hypothesis consistent with innocence had been excluded by the Crown.
iii.His Honour failed to give appropriate directions as to the care the jury should take in assessing the material contained in the statement of Grace.
Particulars
· His Honour instructed the jury erroneously that the material was not hearsay.
· His Honour gave inadequate directions pursuant to section 165 of the Evidence Act 2011 as to why that evidence may have been unreliable. Given the importance of this evidence to the Crown case it was insufficient to say that the evidence should have been considered “carefully”.
c)The verdict is unsafe and unsatisfactory.
Particulars
·In light of the unsatisfactory nature of the evidence of Mr Will and given the centrality of his evidence to the Crown case a reasonable jury properly instructed could not have found the offences proved beyond a reasonable doubt.
The grounds of appeal against sentence are:
5)The sentence was manifestly excessive.
6)There was a lack of parity as between the sentences imposed for each co-offender.
7)His Honour made findings of fact as to circumstances of aggravation that weren’t reasonably open on the evidence before him.
8)His Honour made a specific findings [sic] of fact as to the appellant being subject to conditional liberty at the time of the offence that were not open on the evidence.
9)The possible existence of this aggravating circumstance was not suggested by the Crown and His Honour did not alert the parties to a possible finding to that effect before he handed down his sentence. The appellant’s sentence was denied procedural fairness [sic].
THE TRIAL
It was not disputed at the appellant’s trial that on 10 May 2004 two men committed an armed robbery of a Chubb armoured van as it collected cash amounting to $151,995.35 from the Mawson Club in Heard Street, Mawson in the Australian Capital Territory. For convenience I will refer to this as the robbery. One of those men was Sam Melkie. Melkie was charged with the offence, pleaded guilty, and was sentenced. He gave evidence in the appellant’s trial, although this evidence was not entirely favourable to the Crown. Melkie testified he was armed with a pistol, and it was not disputed that the other offender carried a shotgun which that offender discharged in the course of the robbery, causing grievous bodily harm to one of the Chubb guards, Kevin Matangi. The sole question that arose for determination at the appellant’s trial was whether he was this second offender.
There was clear evidence that the two offenders waited for the arrival of the Chubb van at a bus shelter about 10 to 15 metres from the entrance to the Mawson Club. They were observed by witnesses to be in the shelter from at least 3:10pm until the Chubb armoured van arrived at 3:44pm. The robbery occurred shortly after. The offenders escaped by running into a car park adjacent to the club, and driving away in a stolen vehicle. At least one of the offenders was observed to be smoking cigarettes in the bus shelter prior to the robbery.
The evidence led against the appellant at trial fell into the following categories:
a)the evidence of David Will that, in conjunction with a Chubb employee, Graeme Pagden, he planned the robbery and introduced the appellant to Melkie for the purpose of the appellant and Melkie undertaking the robbery;
b)evidence that DNA was found on cigarette butts located in or near the bus shelter that correlated with the DNA of the appellant, to a degree as to provide extremely strong evidence that it was the appellant’s DNA;
c)evidence of the system of cleaning employed by Lawrence Grace in a cleaning of the vicinity of the robbery, including the bus shelter;
d)the evidence of Melkie, albeit that he denied that the appellant was his co-offender; and
e)eyewitness evidence.
The evidence of David Will
David Will was called by the Crown, and testified that in May 2004 he owned a cleaning business with his brother, Ian Will, in Canberra. He knew Graeme Pagden, whom he met a couple of years earlier. He was aware in 2004 that Pagden was employed by Chubb Security, and that in that role Pagden was privy to the pick-up schedule of Chubb armoured vans, and the amounts of money these vans might be expected to collect from various venues. Will testified that he recruited Melkie and the appellant to carry out the robbery. He gave them information as to where the truck would be, and the time it was expected at the Mawson Club. Will was aware that firearms were used in the robbery, but he did not know where they came from. He testified that a few days after the robbery he, Padgen, Melkie and the appellant met and shared the proceeds. Most of the evidence given by Will was given after he was given a certificate under s 128 of the Evidence Act 2011 (ACT) (the Evidence Act), meaning that the evidence he gave could not be used in any prosecution of him for his role in the robbery.
Will testified that before the robbery he and the appellant were casual acquaintances, and that he only saw the appellant twice after the robbery. In the course of his evidence Will stated that he had difficulty recalling details as he had suffered “two strokes, seizures”.
In cross-examination, Will conceded that he had previously given [conflicting] evidence in other proceedings [redacted for legal reasons].
At the appellant’s trial, Will was cross-examined as to whether he was testifying as an indemnified witness. He agreed that he had not been charged with any offence arising out of the robbery. Will stated that he had been told that if he gave evidence in the appellant’s trial, he would not, himself, be prosecuted for his role in the robbery. He also accepted that, having been granted a certificate under s 128 of the Evidence Act, the evidence he gave during the trial could not be used against him.
[redacted for legal reasons]
The evidence of Sam Melkie
Sam Melkie gave evidence that he has known David Will since about 1998, and was at one time related to him by marriage. He has known the appellant since 1989. He testified that he was one of the two men who committed the robbery at Mawson, but he refused, on a number of occasions, to name the other offender. He did, however, volunteer that the appellant was not the person who committed the robbery with him. The Crown was granted leave to cross-examine him pursuant to s 38 of the Evidence Act as an unfavourable witness. Melkie went on to testify that he had been armed with a pistol and his co-offender had been armed with a shotgun. They arrived outside the Mawson Club at about 2:00pm and sat in the bus shelter. They waited in the bus shelter for about 2 hours. Melkie testified that during that 2 hour wait he was probably smoking, but he could not remember whether his co-offender was smoking during that time. During the robbery the co-offender discharged his shotgun, and they then ran from the scene before escaping in a stolen car.
Throughout his evidence, Melkie consistently refused to name his co-offender. When asked by the Crown who his co-offender was, if it was not the appellant, Melkie said: “Why don’t you take a look at Daniel Williams”.
In cross-examination Melkie testified that in October 2005 he and Daniel Williams were driving in a car which was stopped by police. Police located a shotgun and a pistol in the car. Melkie testified that they were the guns used in the Mawson robbery. Melkie testified that he had given the guns to Williams about one week prior to them being stopped by police.
The DNA Evidence
After the robbery, the scene in front of the Mawson Club was cordoned off and forensically examined. A number of cigarette butts were located in and around the concrete bus shelter where the offenders had awaited the arrival of the armoured van. These cigarette butts were collected and analysed for DNA. Two tan cigarette butts were located in the bus shelter. From each, DNA was obtained which was at least 253 billion times more likely to have come from the appellant than from any unknown, unrelated individual selected at random from the general ACT population. One of those cigarette butts also yielded DNA from a second contributor, but that component was below the reportable threshold, as described by the forensic biologist, Andrew Preston.
Mr Preston was cross-examined about his findings. He agreed that he could not say how the cigarette butts came to be at the bus stop or how long they had been there. He testified that the length of time DNA will remain on an object depends on a number of factors, including the amount of DNA initially deposited on the object, whether the object is in a sheltered or protected location, whether it is exposed to sunlight or heat, whether it is exposed to water, and whether the object has been touched since the DNA was deposited. Mr Preston agreed that saliva is considered a very good source of DNA.
The evidence of Lawrence Grace
In 2004, Lawrence Grace was a cleaner employed by the Spotless Cleaning Company, which was the contractor providing open-space cleaning services to the ACT government in the Woden area. Mr Grace cleaned the area of the Mawson shops, including the vicinity of the robbery, on a daily basis from about 2000 until 2005. On 18 February 2010 he provided a statement to police setting out the system he employed in cleaning the Mawson shopping centre. His duties were to clean all the rubbish and leaves from the public areas, street gutters and pavement areas. He worked Monday to Friday from 5:00am to 1:00pm.
Mr Grace did not remember specifically 10 May 2004, but he regularly cleaned the Mawson shopping centre in a routine system. To clean the pavement, gutters and common areas, he used a blower vacuum which is a machine which blows air at high velocity to move the rubbish and leaves into a pile for collection. After using the “blower vac”, the pavement and street gutters would be clean and free of material. In his statement, Mr Grace said that he took great pride in his work and making the place spotless.
The blower vac used by Mr Grace was petrol powered and was capable of moving all objects except for rocks and bottles of water. It moved all paper, cigarette butts and leaves.
In his statement, Mr Grace described the method that he employed in cleaning the Mawson shopping centre. He specifically referred to his practice of cleaning the area outside the Mawson Club, and the bus shelter adjacent to the Mawson Club. Mr Grace drew a map, which was annexed to his statement, showing the path that he regularly took in cleaning the Mawson shopping centre.
At the time that he provided his statement Mr Grace was 74 years old, and had retired. Subsequent to making the statement, but prior to the appellant’s trial, Mr Grace died. His statement was admitted into evidence at the appellant’s trial pursuant to section 65 of the Evidence Act.
The appellant objected to Mr Grace’s statement being admitted into evidence. I will return to the nature of that objection when I consider the appellant’s individual grounds of appeal. The evidence of Mr Grace was important to the Crown case because, if accepted, it would tend to establish that the cigarette butts found in and around the bus shelter after the robbery, including those cigarette butts found to contain the DNA of Melkie and the appellant, were deposited in the vicinity of the bus shelter on the day of the robbery.
The eyewitness identification evidence
Numerous witnesses were called by the Crown who had either seen the robbery, or saw the two men in the bus shelter prior to the robbery. It is fair to say that the descriptions of the offenders provided by the witnesses were not consistent amongst themselves, and many of the descriptions of the offender with the shotgun were apparently not particularly consistent with the appellant’s appearance. Facefit images prepared by some witnesses were, again, not particularly similar to the appellant’s appearance. None of the witnesses identified the appellant from a photo board.
GROUNDS OF APPEAL
Ground of appeal (a) – The trial judge erred in admitting into evidence the statement of Lawrence Grace
A significant circumstance in the Crown case against the appellant was the DNA found on the two cigarette butts in, or in the vicinity of, the bus shelter where the two offenders waited prior to the robbery. The analysis of that DNA provided extremely strong support for the proposition it was the appellant’s DNA. But, of course, the presence of the DNA on the two cigarette butts by itself could say nothing about how the DNA came to be there, how the butts came to be in or near the bus shelter, or how long the butts had been in that location. The Crown sought to meet at least some of these potential weaknesses in its case by tendering into evidence the statement of Mr Grace. If accepted by the jury, the contents of the statement made to police by Mr Grace would strongly suggest that the two cigarette butts containing the appellant’s DNA were deposited at the bus shelter on the day of the robbery, thus linking the appellant to the place where the robbery occurred, on the day it occurred.
The appellant objected to the reception of Mr Grace’s statement into evidence. The trial judge heard evidence on the voir dire relevant to the Crown’s application to tender the statement. My reading of the transcript of the proceedings before the trial judge is that the appellant did not deny that the contents of the statement were relevant to proving the charges against the appellant, and his objection was based on the proposition that the requirements of s 65(2)(c) of the Evidence Act which the Crown relied upon were not satisfied.
There can be no doubt that the contents of Mr Grace’s statement were hearsay at the trial. It was clearly established at the trial that Mr Grace was deceased, therefore making him unavailable for the purposes of the Evidence Act: Dictionary, Pt 2, 4(1)(a). Hearsay evidence is made generally inadmissible by s 59 of the Evidence Act. Section 65 provides for exceptions to this general rule where the maker of the statement sought to be led is unavailable to give the evidence. In particular, s 65(2)(c) provides:
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation –
...
(c) was made in circumstances that make it highly probable that the representation is reliable.
In written submissions in support of the appeal, the appellant argued that the trial judge erred in admitting the statement of Lawrence Grace as no circumstances were identified that made it highly probable that the representations contained in the statement were reliable. The appellant referred us to the decision of the Federal Court of Australia, at that time sitting as the Court of Appeal from the Supreme Court of the ACT, in Conway v The Queen (2000) 98 FCR 204 where the Court (Miles, Von Doussa and Weinberg JJ) said at 244,:
The requirement in s 65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person.
In Conway, the Crown sought to lead evidence of statements a deceased murder victim had made to various neighbours that the accused had admitted to her that he had drugged her coffee. The Federal Court determined that the evidence was not admissible under s 65(2)(c) (although it was properly admitted under s 65(2)(b)), as the deceased was “plainly confused, and possibly disorientated” when she spoke to one of the neighbours, and her version of the incident differed each time she recounted the incident to the various neighbours.
In the present case, the trial judge only referred to one circumstance as making it highly probable that the contents of the statement of Mr Grace were reliable, being that the statement was made to a police officer. There were, however, other circumstances that supported the reception of the evidence under s 65(2)(c).
In my opinion, the trial judge was correct to admit Mr Grace’s statement into evidence. The following are the circumstances that make it highly probable that the representations made by Mr Grace in the statement were reliable:
a)the representations were made to a police officer in a formal statement. They were not casual comments or representations made socially or informally;
b)in making the representations, by signing the statement, Mr Grace acknowledged that the statement “is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything I know to be false or do not believe to be true”. In R v AB [2011] ACTSC 204, Penfold J (at [35]) found it unnecessary, in the circumstances of that case, to determine whether such an acknowledgement was relevant to determining the admissibility of a representation pursuant to s 65(2)(c). In my view, the fact that a person makes a representation, such as a statement to police, in circumstances where they are aware, or believe, they may be prosecuted for making a false representation is a circumstance relevant to determining the probability that the representation is reliable;
c)the representations in the statement were representations as to a system of work undertaken by Mr Grace in his duties as a cleaner at the Mawson shopping centre. In Youkhana v The Queen [2013] NSWCCA 85, the NSW Court of Criminal Appeal (per Bellew J with Hoeben CJ at CL and Slattery J agreeing) accepted (at [51]) that the circumstances relevant to determining the admissibility of a representation under s 65(2)(c) include “events outside the time and place of the making of the representations”. I can see no reason why, in an appropriate case, the nature of the facts or activities the subject of the representation should not be a circumstance bearing upon the probability that the representation is reliable. If Mr Grace had purported to have a recollection of performing his cleaning duties on 10 May 2004 at the time he made his statement to police on 15 February 2010, the reliability of any representation about what he did on that day would be doubtful, but evidence of his system of work was highly likely to be reliable;
d)there was evidence that Mr Grace was well-respected by his supervisors for his high standard of cleaning, his professionalism and his honesty. The fact that the representations were made by a person with a reputation for honesty and attention to detail is a relevant circumstance for the purposes of s 65(2)(c); and
e)to the extent that Mr Grace spoke of his pride in doing a good job, he must have been aware that the police could check his work performance with his supervisors, which they in fact did.
Minds may differ whether any of those circumstances, in isolation, would be sufficient to satisfy the test imposed by s 65(2)(c). I am, however, left in no doubt that in combination they satisfy the test, and the statement of Mr Grace was admissible under s 65(2)(c).
The appellant also argued that, even if the statement of Mr Grace was admissible under s 65(2)(c), the trial judge should nevertheless have excluded it pursuant to s 137 of the Evidence Act. That section provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Before the trial judge, the appellant referred to the passage from the decision of the Full Federal Court in Conway quoted above at [76], in support of the proposition that s 65(2)(c) has the potential to operate unfairly against an accused because the accused cannot cross-examine the maker of the representation. The appellant also submitted that as the evidence was important to the Crown case, the potential prejudice to him in not being able to cross-examine Mr Grace became more acute.
The term “probative value” is defined in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue”. In this case, the Crown sought to lead the evidence of Mr Grace to prove that it was probable that the area around the bus shelter had been professionally cleaned on the morning of the robbery, thus making it probable that the cigarette butts located at the scene after the robbery had been deposited there sometime after Mr Grace had cleaned the bus shelter and its surrounds, and before the robbery. The evidence of Mr Grace could rationally affect the assessment of the probability of the existence of these facts, and to a high degree.
The danger of unfair prejudice identified by the appellant was the danger that the jury may assign the evidence undue weight, due to the inability of the appellant to cross-examine Mr Grace. The appellant submitted that there was a danger that the jury would uncritically accept the representations contained in Mr Grace’s statement, as no meaningful criticism of him could be made, and that the jury may simply assume that on the day of the robbery he had discharged his duties with perfection.
The danger that the jury would misuse the evidence of Mr Grace in the ways suggested by the appellant was minimal. The limitations of the evidence, as evidence of a system of work only, were obvious. The trial judge directed the jury when the statement was tendered that “as you can appreciate, a statement cannot be cross-examined”, directing the attention of the jury to the fact that the appellant did not have an opportunity to cross-examine Mr Grace. In his final directions to the jury, the trial judge said:
Members of the jury, because Mr Grace is deceased and, therefore, what he says in his statement is not subject to cross-examination, you should consider it carefully.
In R v Yates [2002] NSWCCA 520, Wood CJ at CL, Hulme and Buddin JJ said (at [252]):
Prejudice argues for the exclusion only if there is a real risk of danger of it being unfair... This may arise in a variety of ways, a typical example being where it may lead a jury to adopt on illegitimate form of reasoning, or to give the evidence undue weight.
In deciding whether there is a danger that evidence may lead to a jury adopting an illegitimate form of reasoning, or to give the evidence undue weight, it is permissible to consider whether appropriate judicial directions may ameliorate the danger: see Aytugrul v The Queen (2012) 247 CLR 170 at [75] per Heydon J.
What s 137 requires is a balancing process. The fact that evidence has the potential to be prejudicial, even unfairly so, is not sufficient to justify its exclusion under the section. The court must balance the probative value of the evidence against the danger of unfair prejudice to the accused, and it is only where that danger outweighs the probative value of the evidence that the section mandates exclusion. The probative value of Mr Grace’s statement was considerable, and the danger of unfair prejudice, in the circumstances, was low. I am satisfied that the evidence was rightly admitted.
Ground of appeal (b)(i): The trial judge misdirected the jury by failing to adequately direct them as to the unreliability of the witness David Will.
It is clear that the witness David Will fell into a category of witness whose evidence may be unreliable. He was a person who, by his own admission, was criminally complicit in the robbery at Mawson. Secondly, he was giving evidence either as an indemnified witness, or, at least, on the basis that he would not be charged for his involvement in the offence if he testified at the appellant’s trial. He also sought, and was granted, a certificate under s 128 of the Evidence Act with respect to the evidence he gave at the appellant’s trial, meaning that his evidence could not be used to prosecute him for his involvement in the robbery. He had also admittedly lied on oath about the circumstances of the robbery in other proceedings.
Section 165 of the Evidence Act provides:
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
...
(d)evidence given in criminal proceedings by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
...
(2)If there is a jury, and a party requests, the judge must:
(a)warn the jury that the evidence may be unreliable; and
(b)tell the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.
...
(4)It is not necessary that a particular form of words be used in giving the warning or information.
The trial judge gave the following direction to the jury concerning the evidence of Will:
Now, members of the jury, about Mr Pagden’s evidence, Mr Will’s evidence and Mr Melkie’s evidence, there is a specific direction that I must give you. This direction is given in every case in which the Crown relies upon the evidence of a person himself or herself criminally concerned in the events giving rise to the charge or charges against an accused. I want you to understand and I emphasise, members of the jury, that this direction is given in every case in which the Crown relies upon the evidence of a person himself or herself criminally concerned in the event or events giving rise to the charge against the accused.
This direction is not given in this trial because I may have formed a view of the evidence given by Mr Pagden, Mr Will and Mr Melkie. As you know, it’s not for me to make any decision about the evidence that Mr Padgen, Mr Will and Mr Melkie have given.
The direction that I give you arises because the criminal courts have accumulated over many years a great deal of experience concerning the reliability of evidence given by a person himself or herself criminally concerned in the commission of the events giving rise to the charge against the accused and because that experience would not be known readily by members of the public, by members of the ACT community such as yourselves. This experience has shown that the evidence of a person himself or herself criminally concerned in the commission of the event which gives rise to the charge or charges against the accused is often unreliable.
Members of the jury, I do not suggest to you that the evidence of Mr Pagden or Mr Will or Mr Melkie is unreliable. All I suggest to you is that the evidence of Mr Pagden, Mr Will and Mr Melkie could be unreliable. I give you the direction to warn you that the evidence of Mr Padgen, Mr Will and Mr Melkie – those people being themselves criminally concerned in the commission of the event which gives rise to the charges against the accused – may be unreliable and for that reason, you must consider the evidence of those people, Mr Pagden, Mr Will and Mr Melkie, with great care and caution when determining whether to accept it or to reject it and if you decide to accept it, in determining the weight – that is, the value – that you will give to the evidence of those people.
There may be many reasons why the evidence of a person himself or herself criminally concerned in the commission of the event which gives rise to the charges against an accused may be unreliable. It is only natural, you may think, that such a person may wish to sift [sic] some or all of the blame for doing something from himself or herself to another or others [redacted for legal reasons].
Members of the jury, it is the experience of the criminal courts that a person who is himself or herself criminally concerned in the commission of the event once having given a version about the event may feel locked into that version and may not be prepared to break away from that version because he or she feels bound to the version.
So members of the jury, what I’m saying to you is this: the evidence of Mr Pagden, Mr Will and Mr Melkie, each being himself criminally concerned in the commission of the event which gives rise to the charges against the accused, may – and I emphasise the word “may” – be unreliable. I do not say that the evidence in unreliable. It’s for you to decide the reliability or otherwise of the evidence. I tell you that the evidence may be unreliable and I tell you, members of the jury, to scrutinise with care and caution the evidence that those people have given before you accept it and if you accept it, before you attach weight to it.
The appellant complains that this direction did not touch upon all of the circumstances that may have made Will’s evidence unreliable, particularly the circumstances that he was giving evidence either under an indemnity or, at least, with the benefit of a certificate pursuant to s 128 of the Evidence Act, and that he had lied about the circumstances of the robbery on oath in earlier proceedings. Secondly, the appellant complains that the form of the direction would have undermined its force in the mind of the jury.
With regard to this second complaint, the appellant points to the trial judge telling the jury that the direction that he was giving was one that he must give, and which was commonly given in all such cases, as potentially undermining the force of the direction. In addition, the appellant argues, the force of the direction on unreliability was further undermined by the trial judge saying that he was not giving the direction because he had formed the view that the evidence was unreliable, but because it could be and that it was the experience of the criminal courts that such evidence is often unreliable. There is no substance to these complaints. The terms of s 165 do not require a trial judge to form a view as to the unreliability of evidence before giving a direction to the jury under that provision. It is not the role of a trial judge, in a jury trial, to determine whether evidence properly admitted at the trial is reliable or unreliable. That is the jury’s function. What s 165 requires is that where a party to the trial so requests, the trial judge is to warn the jury that certain evidence may be unreliable. It is then for the jury to determine whether the evidence is reliable or not, and what weight they may give to it. In directing the jury as he did, the trial judge was making it clear to the jury that he was not purporting to give a personal opinion about the reliability of the evidence, and that it was for them to determine that issue. The jury would have understood his Honour’s direction in that way. There was nothing unusual or improper in that direction, and it could not be seen as detracting from his direction to the jury about Will’s possible unreliability.
Before considering the appellant’s first complaint about this direction, it is necessary to consider what occurred after the trial judge gave this initial direction on the potential unreliability of Will’s evidence. The trial judge commenced his summation to the jury on the afternoon of 14 March 2013, and the direction set out at [90] above was given that afternoon. The summation did not conclude that afternoon, and at about 4:00 pm the trial judge released the jury with a view to continuing his summation the next morning. Overnight, counsel for the appellant at trial, who was not counsel on this appeal, prepared a document headed “Further Directions Sought”, which he provided to the trial judge the next morning before his Honour continued his summation. This document read:
Mr Will
In respect of the witness Will the direction to the jury in relation to the “co-accused” (S 165(1)(d)) is inadequate. The direction should given the circumstances of this case involve a much more detailed analysis of why his testimony should be treated with caution:
1.He lied on oath in the [other proceedings] [redacted for legal reasons].
2.He has given inconsistent evidence as to the involvement of the accused in the instant offence. This should be brought to the attention of the jury specifically.
3.His evidence was clearly given in a manner that indicated he was not doing his best to tell the jury the truth.
4.He gives evidence as a person who was granted a certificate. He understood that certificate to give him licence to say what he wanted.
5.He gave evidence as a person who on his own testimony had been told he would not be prosecuted in respect of this offence and for his false testimony given [in the other proceedings]. It is not sufficient to read out the passage involved without explaining the significance of that passage so far as it relates to his potential unreliability.
6.If he is to believed the witness has suffered strokes in the past that according to his own testimony stripped him of memory (s 165(1)(c)).
The jury should be taken to the inconsistent statements that have been made. It is desirable in this case that the jury be directed (independent of any “co-accused” warning”) that the witness is generally unreliable: Driscoll.
Given the centrality of his evidence to the prosecution case his evidence in these proceedings as to the involvement of the accused (such as it is) the jury should be directed that his evidence as to that fact will have to [sic] accepted beyond a reasonable doubt. The jury must be taken to the detail of Mr Will’s evidence (and the circumstances surrounding the giving of that evidence) and be instructed in a way that clearly suggests that there is a danger of convicting upon the evidence of this accomplice. Given the dangers of unreliability in this case the Court must go further than the standard Bench Book Directions which have thus far been given.
The Evidence of Mr. Grace
The Crown has relied heavily on the evidence of Mr Grace. The evidence of Mr Grace was admitted as hearsay but as a permitted exception to the hearsay rule. The evidence should attract the directions invited by section 165(1)(a). The judge is referred to R v Mendaha (1993) 71 A Crim R 382 and Odgers 10th Ed 929 [sic]. The matters that should be addressed are set out in Trial Directions 3801.
It is not uncommon for counsel to advise a trial judge of matters which they want the trial judge to address in summation. Indeed, s 165 only requires the judge to give a direction on unreliability where a party so requests. Despite the use of the word “Further” in the heading of the document, I take the document to have been a request by the appellant to the trial judge for a direction pursuant to s 165. That request did not go unheeded by the trial judge. When he continued his summation on 15 March, the trial judge gave the jury the following directions:
Now, members of the jury, it will be clear to you, I am sure, that the evidence of Mr Will is important to say the least, and paramount perhaps, in the Crown’s direct evidence case against the accused. Without the evidence of Mr Will that he recruited Sam and the accused and his evidence that, to use his words, “we all got a bit” the Crown’s case collapses. Now, the evidence of Mr Will, as I’ve said, is important, if not paramount, to the Crown’s direct evidence case.
About Mr Will, you know that he’s a liar. He’s admitted lying. He admitted lying on his oath [in the other proceedings]. When, as the learned Crown prosecutor has drawn your attention, he was invited by the inquirer to consider his position after hearing some recordings he returned to the [in the other proceedings] and gave evidence quite at odds with the evidence that he’d earlier given on his oath.
So, there isn’t any doubt that Mr Will is a liar. He deliberately [in the other proceedings] and he told you why he had done so. [redacted for legal reasons] He gave inconsistent evidence both [in the other proceedings] and to you. Learned Counsel for the accused has referred to his inconsistent evidence. His evidence was given, when he gave evidence to you on two occasions, in a manner that you might have thought, and it’s for you to decide not for me or anyone else, that he was not doing his best to remember what had happened, albeit as we now know, it is nearly nine years ago. Moreover, he told you he had suffered a number of strokes which had affected his memory.
I told you yesterday that he’d been protected [redacted for legal reasons] in relation to evidence that he [g]ave [in other proceedings]. I told you yesterday that he is protected by the certificate under the Evidence Act that I gave to him in respect to his evidence towards you. All of these things you should take into account in determining whether or not to accept the evidence of Mr Will.
As I have said, if you have a doubt about Mr Will’s evidence in the two regards upon which the Crown relies, then the Crown’s direct evidence case collapses. You will remember I’m sure that the learned Counsel for the accused put to him that his understanding of the protections that he had been given both in respect of the [evidence in the other proceedings] and the evidence before you was that he could say what he liked.
So, members of the jury, Mr Will’s evidence is, you might think, potentially unreliable. It’s not for me to say that his evidence is unreliable. It’s for me to warn you that because of the things that have occurred, his evidence may be unreliable. If, as I have said already and I’ve said it twice, you put aside Mr Will’s evidence in relation to the Crown’s circumstantial evidence case then, and I am sure it’s obvious to you, the Crown’s case in that regard collapses.
The appellant now complains that these directions did not go far enough. He says that the trial judge should have taken the jury to the actual inconsistencies in Will’s evidence touching upon the appellant’s involvement in the robbery, and should have addressed the circumstance of Will being an indemnified witness whose testimony in the proceedings protected him against prosecution. Further, the appellant says that a warning should have been given that the witness was “generally unreliable”. I am satisfied that there is no merit in any of these complaints.
In his second direction on unreliability, the trial judge directed the jury that the evidence of Will may be unreliable by reference to him having lied in other proceedings about the robbery, having given inconsistent evidence in the appellant’s trial, having memory problems by reason of having suffered a number of strokes, and being protected from prosecution with respect to the evidence he gave in earlier proceedings and at the appellant’s trial. In the initial direction, the trial judge addressed the potential for Will’s evidence to be unreliable due to him being criminally complicit in the robbery. These directions were adequate. In Driscoll v The Queen (1977) 137 CLR 517, Gibbs J, with whom Mason, Jacobs and Murphy JJ agreed, said (at 536) that it is not “always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable”. Gibbs J left open the possibility that in some cases it may be highly desirable, if not necessary, for a trial judge to warn the jury against accepting the evidence of such a witness, and that this may be particularly so “where the testimony of the witness was more damaging to the accused than the previous statement”. On the other hand, however, Gibbs J also accepted that there would be some cases where “the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous”. In the present case, the inconsistent statements made by Will in earlier proceedings [redacted for legal reasons] [were] followed very quickly by a change in his evidence [redacted for legal reasons]. [I]n the circumstances of this case, [the trial judge] was not obliged to do more than he did.
At trial, the appellant was represented by counsel experienced in the conduct of criminal trials. At the conclusion of the trial judge’s summation, counsel did not ask for any redirection to the jury, or elaboration upon the directions given, concerning the unreliability warning about the evidence of Will. Repeating what I recently said in Hussain v The Queen [2013] ACTCA 42 at [46], I respectfully agree with the observations of Latham J in Richardson v The Queen [2013] NSWCCA 218 at [148]:
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].
An unexplained failure to take the point at trial is usually a reliable indicator of the fairness and adequacy of the summing up: Takelyv R [2007] NSWCCA 75 at [88], [130].
The inference arising from trial counsel’s failure to seek any redirection is that counsel was satisfied, in the circumstances of the trial, of the adequacy of the trial judge’s directions.
Ground of appeal (b)(ii): The trial judge misdirected the jury in respect of the circumstantial evidence led by the Crown
The central issue raised by the appellant in this ground was whether the trial judge was obliged to direct the jury that, in order to convict the appellant, they had to be satisfied beyond a reasonable doubt of Will’s evidence and “the DNA evidence”. This submission was based upon the decision of the High Court in Shepherd v The Queen (1990) 170 CLR 573, where the Court considered the correct approach to directing juries in circumstantial evidence cases after its earlier decision in Chamberlain v The Queen (No.2) (1984) 153 CLR 521. In Shepherd the High Court rejected the proposition that, in cases based on circumstantial evidence, juries must always be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed, concerning proof in circumstantial evidence cases, said:
Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par. 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
There was a faint suggestion during the trial that Daniel Williams may have been the second offender. The jury were entitled to reject that suggestion. The suggestion appears to have originated in the gratuitous comment by Melkie, at [62] above, “why don’t you take a look at Daniel Williams”. In the light of Melkie’s sustained refusal to nominate his co-offender, the jury was entitled to be sceptical, to the point of disbelief, that he would suddenly disclose that information. In addition, there was clear evidence that the offender carrying the pistol, who we know to have been Melkie, was taller than the offender carrying the shotgun. There was evidence that Melkie is 6’1” tall and that Danny Williams was between 6’2” and 6’4” tall. The appellant is 5’7” tall.
The appellant chose not to testify during his trial, as was his right. He did, however, participate in two recorded interviews with police, one on 9 February 2010 and the other on 24 February 2010. These interviews were placed in evidence as part of the Crown case. In those interviews the appellant denied any involvement in the robbery. The first interview was a recording of a forensic procedure in which the appellant was advised that he was a suspect in the robbery. He denied knowing anyone by the name of Sam Melkie or David Will, which was clearly untrue. He was aware that police were taking a sample of his DNA. The second interview occurred, therefore, in circumstances where the appellant knew that police had taken a sample of his DNA. In this second interview police asked the appellant whether he smoked, and what particular brand of cigarettes he smoked. He was then asked what he did with his cigarette butts, and in particular whether he ever gave them away. The appellant told police that sometimes he put his butts in the bin, but sometimes he may give them away. The jury were entitled to view with considerable scepticism the proposition that the cigarette butts containing the appellant’s DNA profile came to be at the bus stop because he gave them to a third party, who may or may not then have been Melkie’s co-offender. The appellant knew at the time that he told police that he sometimes gave away his butts that he was a suspect in the robbery and that police had taken a sample of his DNA. It would not be a large leap to link those facts with the questions police put to him about his smoking habits, suggesting that he may have been linked to the robbery by DNA found on a cigarette butt or butts. The jury was entitled to give little weight to the suggestion that the cigarette butts containing the appellant’s DNA had been placed at the bus shelter by a third party.
The jury was made well aware of David Will’s deficiencies as a witness, but they were entitled to accept his evidence on the crucial issue of his recruitment of the appellant to commit the robbery, just as they would have been entitled to reject it. They were made well aware of the limitations of the evidence of Mr Grace, but they were, nevertheless, entitled to accept that evidence and draw inferences from it. The jury could, of course, have refused to draw any inferences from the evidence of Mr Grace. None of this makes the verdict unsafe or unsatisfactory. It is merely a statement of the commonplace principle that a jury may accept or reject evidence, depending upon whether it considers the evidence to be truthful and reliable, or untruthful or unreliable. In this case the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies, and was not so tainted as to make verdicts of not guilty the only proper verdicts.
This ground of appeal must also fail.
Conclusion - the appeal against conviction
Some aspects of the appeal against the appellant’s conviction bear the hallmarks of what has been referred to as an “armchair appeal” in the Court of Criminal Appeal in New South Wales, that is, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and the summing up looking for error, without reference to the manner in which the trial was conducted”: R v Mahoney [2000] NSWCCA 256; see also Darwiche v R [2011] NSWCCA 62 and Reeves v R [2013] NSWCCA 34. These cases refer to the provisions of r 4 of the Criminal Appeal Rules (NSW) which provide:
No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.
In the ACT, the equivalent rule is r 5531 of the Court Procedures Rules 2006:
Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:
(a)a direction given by the trial judge;
(b)the trial judge’s failure to give a direction;
(c)the trial judge’s decision about the admission or rejection of evidence.
NotePt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.
The operation of r 5531 is itself sufficient to dispose of Grounds of Appeal (b)(i) and (b)(iii). In the event, I have considered those grounds on their merits, but future appellants should not assume this will always be the case.
None of the grounds of appeal raised by the appellant against his conviction have any merit. To the extent that the trial judge made an error in directing the jury that the evidence of Mr Grace, as set out in his statement to police, was not hearsay, it was an immaterial error, and this Court should in any event dismiss the appeal on the ground that no substantial miscarriage of justice has occurred: Supreme Court Act1933 (ACT) s 37O(3).
THE APPEAL AGAINST SENTENCE
With respect to the charge of aggravated robbery the appellant was sentenced to 12 years’ imprisonment, against a maximum penalty of 25 years’ imprisonment. For the offence of intentionally inflicting grievous bodily harm, he was sentenced to imprisonment for 10 years, against a maximum penalty of 20 years’ imprisonment. Those sentences were made partially concurrent, so that the total aggregate sentence was one of 18 years’ imprisonment.
As argued before this court, the appellant’s complaints are:
(a) that the sentences imposed by the trial judge, both individually and in aggregate, were manifestly excessive;
(b) that the trial judge took into account a circumstance of aggravation which was not available to him; and
(c) that there was a disparity between the sentence imposed on the appellant for the offence of aggravated robbery, and that imposed on Melkie for the same offence.
Parity
It is convenient to commence with the suggestion that there was such a disparity between the sentence imposed on Melkie for the offence of aggravated robbery and that imposed upon the appellant that this court should intervene.
On 17 February 2011, having earlier pleaded guilty to the charge of aggravated robbery, Melkie appeared before Gray J for sentence. His Honour sentenced Melkie to imprisonment for 9 years, reduced from 12 years on account of his guilty plea, for that offence. On the face of it, it appears that the trial judge adopted the same starting point, being imprisonment for 12 years, for the offence of aggravated robbery that Gray J considered to be the appropriate starting point in sentencing Melkie. Before this Court, the appellant submitted that Gray J, in sentencing Melkie, took into account the fact that a firearm had been discharged in the course of the robbery. Unlike the appellant, Melkie only faced the one charge, being a charge of aggravated robbery. The appellant therefore submitted that the starting point for sentencing him with respect to the aggravated robbery offence should be lower than 12 years because he faced a separate charge in relation to the discharge of the firearm. In my opinion, there is no merit in this submission.
I accept that Gray J, in sentencing Melkie, took into account the fact that a firearm had been discharged and that a security guard had been seriously injured as a consequence. It is also true that the appellant faced a separate charge with respect to the infliction of grievous bodily harm on the security guard by means of discharging the firearm. However, that does not mean that the sentence imposed on the appellant for the offence of aggravated robbery should have been reduced because the appellant faced that separate charge. The appropriate course in sentencing the appellant, as set out by the High Court in Pearce v The Queen (1998) 194 CLR 610, was to determine the appropriate sentence with respect to each of the separate offences. Having done that, the court then looks at any common elements with respect to the offences to determine the extent to which those sentences should be served concurrently. The fact that there were common elements in the two offences upon which the appellant was sentenced was not a reason to reduce the sentence for the offence of aggravated robbery. It was a matter that was to be taken into account in determining the extent to which the two sentences would be served concurrently.
Both the appellant and Melkie had significant criminal records. The appellant’s criminal record was longer than that of Melkie, although Melkie had previous convictions for armed robbery offences. Gray J found that Melkie had prospects for rehabilitation, whereas the trial judge was not prepared to make a similar finding with respect to the appellant. In addition, of course, Melkie pleaded guilty to the offence of aggravated robbery, and the appellant maintained a plea of not guilty.
Whilst it is true that Melkie was sentenced on the basis that the aggravated robbery involved violence, he was not sentenced on the basis that he was the person who had actually inflicted the injuries on the security guard. In my opinion, a separate and significant sentence of imprisonment was warranted with respect to the charge of intentionally inflicting grievous bodily harm. The intentional discharge of the firearm by the appellant, in circumstances that may properly be described as gratuitous, called for a significant separate punishment, and in itself was sufficient to justify a very considerable disparity between the aggregate sentence imposed upon the appellant and the sentence imposed on Melkie for the single offence.
The decision of the trial judge to make four years of the sentence for intentionally inflicting grievous bodily harm concurrent with the sentence for the robbery was appropriate, and adequate to reflect the common elements or features of the offences. The trial judge essentially gave the appellant a further six years imprisonment for discharging the shotgun at Kevin Matangi, and thereby inflicting upon him very serious injuries which continue to affect him to the present day.
Based upon the differences in their participation in the robbery, including the shooting, and their different subjective circumstances, including their prospects for rehabilitation and Melkie’s plea of guilty, the trial judge was entitled to impose a significantly longer aggregate sentence on the appellant than Gray J imposed on Melkie. The appellant can have no justifiable sense of grievance in the disparity between his sentence and that imposed on Melkie.
Manifest Excess
If all of the circumstances identified by the trial judge as relevant to sentencing the appellant were properly taken into account I would not be prepared to hold that the sentences imposed, either individually or in aggregate, were manifestly excessive. This was a very serious example of this type of offending. It was a brazen robbery, carried out on a public street, at a time when it could be expected that members of the public, including children, would be in the vicinity. It was carried out by two men acting in company; both were armed and at least one of the firearms was loaded. A shot was discharged, for reasons quite unnecessary for the accomplishment of the robbery, seriously wounding a security guard. The offence was premeditated and well planned. The robbery and shooting called for sentences which made it clear that this type of reckless lawlessness will not be tolerated.
Taking into account circumstances of Aggravation
However, there is one matter which was taken into account by the trial judge which, in my opinion, he was not entitled to take into account when sentencing the appellant. His Honour took into account, as an aggravating feature, that the appellant’s criminal history suggested that he was at large in breach of bail undertakings at the time he committed the present offences. The trial judge considered that this arose in two ways:
a)on 23 July 2004, the appellant was convicted of two offences of failing to appear in accordance with a bail undertaking contrary to s 49 of the Bail Act1992 (ACT). His criminal history, as placed before the trial judge, suggested that the appellant failed to appear with respect to those bail undertakings on 23 March 2000. It is slightly odd, but by no means impossible, that the appellant would have been subject to two bail undertakings to appear on the same date; and
b)his criminal history also contained an entry from the Adelaide Magistrates Court on 19 April 2004 stating that a warrant of apprehension was issued on that date for the appellant, for offences of “carry offensive weapon” and “dishonestly take property without owner’s consent”.
Any such finding, as adverse to the appellant, had to be made beyond a reasonable doubt: Cheug v The Queen (2001) 209 CLR 1.
In my opinion, it was not open to the trial judge to make these findings. On its face, the appellant’s criminal history suggests that he failed to appear in answer to his bail undertaking in the ACT on 23 March 2000. The same history, however, records that he did appear in the ACT Magistrates Court about 1 month later, on 28 April 2000, after being taken into custody on NSW warrants of apprehension. It is possible that he was at that time charged with one charge of failing to appear, and was then remanded on bail to a later date, at which time he again failed to appear. This would explain why, in 2004, he was dealt with for two offences of failing to appear. There is some limited support for that theory in the court number of one of the matters dealt with in the Magistrates Court in 2004, which is a 2000 number, suggesting that it was a charge of failing to appear in 2000. But, this theory is inconsistent with the offence date contained in the entry for 23 July 2004. In addition, that entry only shows one charge number, whereas the entry suggests that the appellant was convicted of two charges that day. This is sufficient to cast doubt on the accuracy of the entry in the criminal history.
Turning to the entry from the Adelaide Magistrates Court on 19 April 2004, there is nothing on the face of the criminal history that allows any inference to be drawn that the appellant was at liberty having absconded from bail in South Australia at the time of the robbery. Without a proper understanding of the law of South Australia under which the warrants were issued, and without information as to the nature of the proceedings in the Magistrates Court, no such inference can safely be drawn from the criminal history.
It is not, now, possible to determine what weight the trial judge gave to the finding that the appellant was at liberty having absconded from bail at the time of the robbery in passing sentence on him. The fact that an offender is on conditional liberty, such as subject to a bail undertaking or a good behaviour order, at the time they commit an offence is clearly an aggravating circumstance relevant to sentencing: Re Attorney-General’s Application [No 1] (1999) 48 NSWLR 327, per Grove J at [48] (with whom Spigelman CJ and Sully J agreed). Where an offender is unlawfully at large when an offence is committed, it is even more serious: R v King [2003] NSWCCA 352, per Grove J at [38] (with whom Handley JA and Adams J agreed). In the light of these very clear principles, it must be inferred that the trial judge’s findings on this issue had some impact on the sentences he imposed at least with respect to the offence of intentionally inflicting grievous bodily harm.
Resentence
In any event, the appellant has demonstrated error on the part of the trial judge in the sentencing process, and it falls to this Court to sentence him. It is, therefore, unnecessary to consider the appellant’s complaint that he was denied procedural fairness by the trial judge in finding this circumstance of aggravation.
For the robbery charge, I would impose a sentence of 12 years’ imprisonment, based upon this being the starting point for the sentence imposed by Gray J on Melkie. There is nothing in Gray J’s sentencing comments to suggest that Melkie was unlawfully at large, or on conditional liberty, at the time of the offence, suggesting that this was not a circumstance that significantly affected the trial judge in sentencing the appellant for the robbery. If it were otherwise, one would expect that the trial judge would have imposed a greater sentence on the appellant for that offence. Be that as it may, in resentencing the appellant I consider that a term of 12 years imprisonment is appropriate for the aggravated robbery offence. I would sentence the appellant to 8 years and 6 months imprisonment for the offence of intentionally inflicting grievous bodily harm. I would order that 4 years and 6 months of that sentence be served consecutively upon the sentence for aggravated robbery, making an aggregate head sentence of 16 years 6 months’ imprisonment. These sentences would commence 19 December 2012. I would fix a non-parole period of 11 years 6 months commencing 19 December 2012 and expiring 18 June 2024.
CONCLUSION
I would dismiss the appeal against conviction.
I would allow the appeal against sentence. The sentences imposed by the trial judge should be set aside and the following sentences imposed:
a)for aggravated robbery – 12 years’ imprisonment commencing 19 December 2012;
b)for intentionally inflicting grievous bodily harm – 8 years 6 months’ imprisonment, of which 4 years 6 months is to be served consecutively upon the sentence imposed for armed robbery.
I would set a non-parole period of 11 years 6 months commencing 19 December 2012 and expiring 18 June 2024.
I certify that the preceding one hundred and three (103) paragraphs numbered [49] to [152] are a true copy of the Reasons for Judgment herein of his Honour Justice Burns, subject to redactions and amendments made for legal reasons to allow publication.
Associate:
Date: 24 April 2014
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 28 October 2013
Date of judgment: 24 April 2014
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