R v Bueti; R v Morrissey No. Sccrm-97-228, Sccrm-97-229, Sccrm-97-238 Judgment No. S6479

[1997] SASC 6479

R  v  BUETI;  R  v  MORRISSEY

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ

DOYLE CJ

Introduction

This is an appeal against a conviction for armed robbery.  A jury convicted Mr Bueti of that offence.  Mr Bueti was convicted on an information that alleged that he and three other men robbed one Vince Versace of money on 22 August 1995.  One of those other men was Mr Morrissey.  Mr Morrissey pleaded guilty.

Both Mr Bueti and Mr Morrissey appeal against the sentences imposed upon them by the judge.

Grounds of appeal

A number of grounds were argued in support of the appeal against conviction.

It was argued that evidence of an interview of the appellant by Detective Slaven and Detective Modra should have been excluded by the trial judge because it was not proved to have been made voluntarily and because the appellant was not cautioned before being questioned.  It was argued that he should have been cautioned because the detectives had reasonable grounds to suspect, before they began questioning Mr Bueti, that he had conspired to commit the armed robbery or that he was guilty of counselling or procuring the commission of the offence.

It was argued that the evidence of Robert Versace, a boy of 13½ years of age at the time of trial, identifying Mr Bueti as one of the participants, should not have been admitted.  It was further argued that the directions to the jury in relation to the identification evidence were inadequate.  Robert Versace said that he had recognised Mr Bueti’s voice when one of the robbers spoke during the robbery.

It was argued that the jury should have been directed that they should not convict Mr Bueti in reliance upon the evidence of Robert Versace, unless that evidence was corroborated.  It was said that the obligation to so direct the jury arose from the fact that Robert’s evidence was inherently implausible.

It was further argued that the judge had failed to direct the jury adequately in relation to suggested inconsistencies in the evidence of Ms Bawden, a witness whose evidence, if accepted, might provide some support for a conclusion that Mr Bueti was involved in the robbery.

Complaint was made about the failure of the judge to discharge the jury when the Foreman told the judge that the jury was deadlocked.

Finally, it was argued that the verdict was unsafe and unsatisfactory.

Facts

On 22 August 1995, some time after 11pm, five masked men broke into the house of Mr and Mrs Versace.  Their house was not far from Mt Gambier, a regional city in South Australia.  Present in the house, and in bed at the time, were Mr and Mrs Versace and their three children, then aged 9 years, 11 years, and 13 years.  The men gained entry by smashing their way through a glass door.  Two of the men had guns.  The men tied the children up.  The men laid hands on Mr Versace and, shouting at him, demanded to know where his safe was.  He said that he did not have one and did not have any money in the house.  One of the men threatened to shoot him.  Mrs Versace gave the men some money and, a little after that, she was tied up.  After some fruitless efforts to locate a safe, the men tied Mr Versace up and fled from the house.  The information alleged that Mr Versace was robbed of an amount of about $2,500.

For some time, the police had no indication of the identity of the offenders.  Detective Slaven and Detective Modra were investigating the matter.

None of the Versace family had been able to give the police a description of the offenders that was of any assistance to them.  All that they were able to tell the police was that the offenders wore dark clothing, balaclavas and gloves.

In May of 1996 the police received information that a Mr Morshead might have some information.  They spoke to him.  He gave them information that suggested that Mr Morrissey might have had some involvement in the robbery.  He also told the police that a person called Tony was a friend of Mr Morrissey, and might have further knowledge of the robbery.  The police were given some information about Tony, and that caused them to speak to Mr Versace.  Mr Versace told them that those details fitted Mr Bueti.  Mr Bueti had worked for Mr Versace, who was a builder, had been to his house and had been sacked by Mr Versace some three to four months before the robbery.  Mr Versace described Mr Bueti to the police as "a little short guy" (T67).  Mr Bueti is about five feet two inches tall.

At about 10.15am the same day Detectives Slaven and Modra went to Mr Bueti’s house.  They spoke to him there.  They said that they had been given information that Mr Bueti may have some knowledge of the Versace robbery.

According to Detective Slaven, Mr Bueti "... became quite nervous and shook a little bit ...".  He invited them in.  Detective Slaven said that when they began to talk Mr Bueti "became quite emotional and he was very forthcoming with information" (T71).

According to Detective Slaven, Mr Bueti began by saying that:

"He was very sorry that he had shot his mouth off, and that he told some people or a person some information about the Versace family." (T69)

Mr Bueti denied that he was involved in the actual robbery, or that he was present at the Versace house on the night in question.  He said that he felt that the robbery was his fault because he had "shot his mouth off" about the Versace family.  He said that he knew Mr Morrissey.  He said that he had told Mr Morrissey that Mr Versace had a lot of money at his house.  He had told Mr Morrissey where Mr Versace lived.  He said he told him about this in the course of a telephone conversation with Morrissey, while Morrissey was in jail in Victoria.  About a week later he had gone to Victoria to meet Morrissey on his release from jail, and had driven him back to Mt Gambier.  Mr Bueti admitted to the detectives that, when he heard of the robbery, he thought Morrissey had been involved.  He said that he did not contact the police because he was scared of Morrissey, and agreed that Morrissey may have said to him that that "if he did the job he would bring heavies in from Victoria" (T84).

At the end of this conversation the detectives asked Mr Bueti to accompany them to the police station and to make a statement, and he agreed to do so.  That is the statement, the admissibility of which was challenged.

Detective Slaven was adamant that he did not suspect Mr Bueti of any offence.  His evidence was that he believed what Mr Bueti was telling him.  When it was put to him in cross-examination, on the voir dire, that on what Mr Bueti had admitted he could at least be charged as an accessory, he said (T85):

"At that stage I was happy in my mind that the accused had told me that he was not involved in the perpetration or participation of the offence."

He believed that he was no more than an informant.

Detective Modra gave evidence to the same effect.  On the question of Mr Bueti’s possible guilt as an accessory, Detective Modra said (T103), referring to his belief at the time of the interview:

"I don’t believe he has initiated the robbery.  I believe he is passing on information to Morrissey that a person has a lot of money.  Whether he went any further than that, I have no idea."

The police did not arrest Mr Bueti.  As I have already said, they asked him to accompany them to the police station and to make a statement.  He did that.  That was on 30 March 1996.  The statement was recorded on video and on an audio tape.  Due to a defect in the video machine the conversation was not recorded on the videotape.  The detectives questioned Mr Bueti at the police station for 35 minutes.  In answer to questions, Mr Bueti gave some further detail, but his story remained essentially the same.

The police did not arrest Mr Bueti then.  Next day they asked him to sign a transcript of his statement, but he declined to do so.  The police continued with their enquiries.  On 24 May 1996 they showed Mr Bueti photographs of certain persons suspected of involvement in the robbery.  Mr Bueti did not identify any of them.  The police did not arrest Mr Bueti until 8 August 1996.  Three other persons were arrested at about the same time.  They included Mr Morrissey, who was arrested in Victoria on 21 August 1996 and extradited to South Australia.

Robert Versace was one of the Versace children, and was present in the house when the robbery took place.  He was aged 11 years and 4 months at the time of the offence.  He was 13½ years old at the time of the trial.  He had told the police that he did not recognise any of the offenders.  He was unable to provide the police with useful information.  He did not tell the police or his parents that he recognised the voice of one of the offenders or that one of the offenders was a man of short stature.  The evidence suggested that the Versace family was a happy family, and that he would not have been afraid to tell his parents what he knew.  Moreover, Detective Slaven, who was one of the investigating officers, was a friend of the family.

No other member of the family gave evidence before the jury describing one of the offenders as being short.  But Mr Versace’s opportunities to observe all five of the men were very limited.  It appears that two of the offenders concentrated on him, the other three dealing with other family members.  Mrs Versace, likewise, had limited opportunities to observe the intruders.  She was not sure how many there were, and thought that there might have been four (T217).  Neither Mr Versace nor Mrs Versace claimed to have recognised Mr Bueti’s voice.  However, once again, the circumstances of the offence were such that the jury might have attributed no significance to that.

On 14 June 1996 Mr Versace told Robert that the police knew who did the robbery.  The matter arose when Mr Versace was operating the security alarm at his home.  Since the robbery, Robert had been anxious about the alarm going off.  To reassure him, Mr Versace told him that the police knew who was involved in the robbery.  Mr Versace gave evidence (T14) that he told Robert that "Chicken" was involved in it.  This was Mr Bueti’s nickname.  Robert then told his father that he knew that Mr Bueti was involved.  At trial Robert’s evidence was that he had recognised Mr Bueti’s voice on the night in question.

Robert’s evidence, on the voir dire, and at the trial, was that when one of the men was tying him up another one said "not so tight" (T32), or "not too tight" (T199), and that he recognised the voice as that of Mr Bueti.  The identification rested upon those three words, although Robert also said in evidence at the trial that the speaker had the same build as Mr Bueti (T201).  Robert’s evidence was that he knew Mr Bueti quite well, because both of them played for the same soccer club at Mt Gambier.  It was not disputed that he knew Mr Bueti’s voice quite well.  Robert’s reason for not disclosing this information sooner was that he thought it would have "sounded stupid" to say that one of the robbers was someone who was known to the family, and who had worked for his father (T201-202).

At the conclusion of the voir dire the judge found that Robert was familiar with Mr Bueti’s voice. He said that "Robert gave his evidence of his spontaneous recognition in an apparently credible manner for a child of his age." He considered the explanation for the delay in disclosing the recognition to be not unreasonable, and he considered that it was for the jury to decide if they accepted that explanation. He considered what Brennan CJ said in relation to the admissibility of such evidence in Bulejcik v The Queen (1996) 185 CLR 375 and decided to admit the evidence.

As to the interview, the judge accepted the evidence of Detective Slaven and Detective Modra where it was in conflict with that of Mr Bueti.  He was satisfied that Mr Bueti went voluntarily with the detectives to the police station, and that he answered their questions voluntarily.  He was satisfied that Mr Bueti "wanted to make it clear to the police that he was only of the outskirts of the venture."  He found that Mr Bueti’s "sweating, shaking and hesitancy were a show of remorse for his role in having given information to Morrissey which started the chain of events ...".

The judge found that the detectives accepted Mr Bueti’s denial of his involvement in the offence, and that the police were simply seeking information to help them identify the offenders.  He found that on the basis of what Mr Bueti told the police at his home, before the interview, the police did not have "reasonable cause to suspect that he had either aided or abetted or counselled or procured Morrissey to commit the robbery ...".  In effect, he found that there was no basis to infer that Mr Bueti had the necessary intent for any of those offences, and he accepted that the conversation between Mr Bueti and Mr Morrissey had been described by Mr Bueti, and treated by the detectives as "pub talk".

Interview - Voluntariness

The onus lay upon the prosecutor to show that the statement made at the police station was made voluntarily. That means, in the exercise of a free choice. That requires a consideration of the circumstances in which Mr Bueti was placed: The Queen v Hallam(1985) 42 SASR 126 at 135. It is not simply a matter of considering whether there were threats made or inducements offered.

On appeal, it was submitted that Mr Bueti was reluctant to go to the police station for the interview, and was upset and nervous.  The detectives agreed that Mr Bueti appeared very nervous when spoken to at his home.  As I have already indicated, their evidence was to the effect that he became upset.  The point was also made on appeal that, early in the interview at the police station, there was a long pause by Mr Bueti before he answered one of the questions.  This was said to indicate that he was reluctant to speak.  The Court viewed the video.  I agree that there was a long pause at one stage.  Whether it was for the reason suggested, or because of remorse or some other reason, is another matter.

When considering the submission it is also pertinent to bear in mind that Mr Bueti was not cautioned before the interview took place. The administering of a caution, and the answering of questions after that, tends to negative any suggestion that a statement was made involuntarily: R v Dolan (1992) 52 SASR 501 at 504-505 King CJ.

In my opinion, this ground of appeal fails.  No basis has been identified upon which this Court could reject the judge’s finding that the evidence of Detectives Slaven and Modra should be accepted.  It was open to the judge to find, as he found, that Mr Bueti went to the police station voluntarily, was not under arrest, did not believe he was under arrest or under any compulsion, and wished to satisfy the police that he was on the fringes of the matter.  It was also open to the judge to find that Mr Bueti’s hesitancy, in particular, was attributable to remorse or to a show of remorse.

These were all findings which depended upon the trial judge’s assessment of witnesses.  The appeal on this point was really an attempt to argue the point afresh.  Because I can find no basis for rejecting the trial judge’s findings, I reject this ground of appeal.

Interview - Fairness

The essence of the submission under this head was that Mr Bueti, at his home, provided to the detectives sufficient information about his own involvement for him to be charged as an accessory.  The submission was that, even if their evidence that they did not suspect Mr Bueti of an offence was accepted, they had overlooked his involvement as an accessory and had focussed only on his role as a participant.

I have already summarised the evidence of Detective Slaven and of Detective Modra on this point.  The judge accepted that evidence.  Particular emphasis was placed by counsel upon evidence by Detective Modra that, at his home, Mr Bueti told the police that he had said something to Mr Morrissey to the effect that, if he did the robbery, he should "make sure there is no harm to Versace’s wife or children" (T102).  However, both Detective Slaven and Detective Modra were adamant that they did not believe that Mr Bueti was in any way involved in the offence.  In particular, Detective Slaven said (T71):

"My actual belief was that he was not involved in the actual perpetration of the robbery.  He was not present and he had nothing to do with the acts that took place or the preparation stage of the robbery."

There is no reason to reject the trial judge’s acceptance of this evidence by the detectives.  Having regard to what Mr Bueti told them, it was open to them to treat Mr Bueti’s conversations with Mr Morrissey as mere "pub talk".

The question is whether, notwithstanding their belief that Mr Bueti did not intend to encourage the commission of the robbery, a caution should have been administered.  I express the matter this way because no basis was identified by counsel for the appellant on which the judge’s findings of fact could be rejected.

The importance of administering a caution before a suspect is questioned is well established. The administration of the caution tends to negative any suggestion of involuntariness or of unfairness: R v Dolan (1992) 58 SASR 501 at 505. There, King CJ said that when:

"... a police officer has ... reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his rights not to answer questions.  This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audiovisual tape ..."

It is the unfairness of the use at trial, of answers obtained without the administration of a caution, which gives rise to the judicial discretion to exclude answers obtained in this way, even though they are made voluntarily. The discretion does not arise only if and when the unfairness might make the admissions unreliable, but also because ..."no confession might have been made if the investigation had been properly conducted:" Duke v The Queen (1989) 180 CLR 508 at 513 Brennan J.

There is one other matter to bear in mind when considering the present case. As I said in R v Murphy (1996) 66 SASR 406 at 412:

"Because the ultimate question is one of unfairness, in the sense of unfairness arising from the use of answers in evidence, one cannot be dogmatic in the statement of relevant principles. ..."

The fact that an interrogation has reached the accusatory stage is an indicator that fairness will require that a caution be given before further questions be asked, if the answers are to be used at trial.  But there may be other circumstances that make it unfair to use answers obtained without the administration of a caution.  As I said in R v Murphy (supra) at 414, the requirements of fairness are not to be turned into fixed categories, and the decided cases should not be taken as stating exhaustively what may be required if fairness is to be observed.  While it is possible unfairness in the use of the answers at trial that enlivens the discretion, the fairness of the manner in which the police dealt with the suspect becomes relevant.

In the present case the trial judge found, on the voir dire, that in light of the acceptance by the detectives of what Mr Bueti said, there were not reasonable grounds to suspect him of the commission of an offence.  Although the test of whether there are reasonable grounds to suspect a particular person is expressed in objective terms, the existence of such grounds must depend, to some extent, on the view taken by the relevant police officers of the information provided to them.  To my mind it would, for example, be impractical for the Court to say that in a given situation if the relevant police officers had disbelieved most of what was told to them they would have had reasonable grounds to suspect the commission of an offence, and on that basis to hold that a caution should have been administered, even though the very reason for the police not administering the caution was that they genuinely believed the information given to them.  It is not necessary to explore this point in any detail in this case.  In the light of the judge’s finding, in my opinion the question of whether a caution was required is to be approached on the basis that the police officers did believe that the information given by Mr Bueti to Mr Morrissey had been given in the course of idle "pub talk", and without any intention on the part of Mr Bueti to encourage the commission of the relevant offence.

However, when considering whether a caution should nevertheless have been administered, the following matters need to be taken into account.  In the light of the admissions made by Mr Bueti, an inference that he intended to encourage the commission of the offence could be drawn relatively easily.  All that would be required to give rise to reasonable grounds for suspecting that Mr Bueti had committed an offence would be a change of attitude to the tenor or nature of the conversation between Mr Bueti and Mr Morrissey.  In short, Mr Bueti had already put himself in a position in which the only remaining issue was his intention in communicating with Mr Morrissey the information about Mr Versace.

I accept that the police officers were not intending to question Mr Bueti with a view to ascertaining whether he had an answer to an allegation made against him, and with the intention of charging him if he did not.  Nor were they treating him as a definite suspect.  But they were intending to, and did, undertake a reasonably thorough interview of him on matters that would touch upon a possible commission on his part of an offence.  In the light of what the detectives had been told, the detectives were intending to explore a topic through which ran a rather fine line dividing innocence from guilt.  Another way of expressing the matter is to say that on the information provided by Mr Bueti, the police had sufficient evidence to charge him with an offence if their belief about his intention, when communicating the relevant information to Mr Morrissey, were to alter.

I consider that under those circumstances fairness did require that a caution be administered to Mr Bueti.  I consider that fairness required that he be informed that although he was not at that time suspected of involvement in the offence, his possible involvement remained under consideration and that in that context he should have been informed that he was not obliged to answer questions if he did not wish to do so.

However, although in my opinion a caution should have been administered, it is also my opinion that this is a case in which the discretion should clearly have been exercised in favour of the admission of the evidence of the interview, despite the failure to administer the caution.

First of all, there was no deliberate unfairness by the detectives concerned.  Their attention was focussed upon involvement in the robbery itself, but in any event they did not consider that Mr Bueti had been involved in the preparation for the offence.  Their only error was to fail to appreciate the significance of the fact that they were going to further explore what Mr Bueti had, out of his own mouth, identified as a fairly fine line between innocence and guilt.  There was, therefore, no question of taking advantage of Mr Bueti in this case.

But the main consideration in the exercise of the discretion must be the effect upon Mr Bueti of the failure to administer a caution.  I accept the finding of the trial judge that Mr Bueti was anxious to distance himself from the offence, and to explain his minor role in events.  I have already accepted the judge’s finding that Mr Bueti went to the police station voluntarily and answered questions voluntarily.  There is no reason to think that, had a caution been given, he would not have continued to answer questions.  It is also the case that what he said in the recorded interview did not add a great deal to what he had already said to the detectives at his home.  Moreover, as appears from his examination-in-chief, what he said to the detectives in interview was the substance of his defence at the trial.

I can find no unfairness at all in the use of this evidence at the trial, and for that reason I would reject this ground of appeal.

Identification by Robert Versace of Mr Bueti

The first issue is whether the evidence of Robert Versace, identifying Mr Bueti by the sound of his voice, was admissible.  It was argued that even if it was admissible it should have been excluded in the exercise of the judge’s discretion to exclude evidence the prejudicial effect of which outweighs its probative value.

As Brennan CJ said in Bulejcik v The Queen (1996) 185 CLR 375 at 381:

"Recognition of a speaker by the sound of the speaker’s voice is a commonplace of human experience.  To recognise the voice of a particular speaker some familiarity with that speaker’s voice is ordinarily needed."

That being so, there is no reason in principle, in my opinion, why the admissibility of evidence of identification by voice recognition should be treated as subject to rules peculiar to that type of evidence.  The admissibility of such evidence should depend upon the principles that generally regulate the admissibility of evidence.  That is not to deny, of course, that those principles must be applied with reference to the particular nature of the evidence under consideration.  Bulejcik v The Queen (supra) was not concerned with voice recognition of the type involved here.  It was a case in which the jury was invited to compare the sound of a voice recorded on a tape with the voice of the accused that they themselves heard in court.  But there is nothing in that decision to support the view that evidence of voice recognition is subject to peculiar rules.  I am content to adopt and apply what Brennan CJ said in Bulejcik v The Queen (supra), the essence of which is indicated by the following passage (at 382):

"Evidence of identification by voice recognition is not a distinct category of evidence, though its probative value may oftentimes be dubious and will vary according to the circumstances of each case.  The test of its admissibility must be, in my opinion, one of degree.  The prescription of particular conditions of admissibility is not supported by any principle of the law of evidence."

To the extent that there is a conflict between the approach taken by the Courts of New South Wales and the Courts of Victoria on this issue, I incline towards the view taken by the Courts of Victoria.  However, it is not necessary to resolve any such conflict in this case.  To the extent that the decisions of the Courts of New South Wales treat as a requirement for admissibility that the witness be "very familiar" with the voice of the accused, that requirement is met in the present case.  This conflict was alluded to, without being resolved, by the High Court in Bulejcik v The Queen (supra): see Brennan CJ at 382, Toohey J and Gaudron J at 394, and McHugh J and Gummow J at 405-406.

In my opinion the trial judge was right in ruling, on the voir dire, that the evidence of Robert Versace was admissible.  He was sufficiently familiar with the voice of the accused before the robbery took place to be able to claim to recognise the voice.  Although the opportunity for recognition was limited, bearing in mind that only three or four words were spoken, and bearing in mind the circumstances under which those words were spoken, those matters in my opinion went to weight rather than to admissibility.

I accept also that the discretion that a trial judge has to exclude evidence, if the interests of justice make that desirable, applies to evidence of this type. I am content to adopt the approach taken by Ormiston J in R v Harris (No.3) [1990] VR 310 at 318-319. He said that what this means in the present context is that the judge must weigh up the probative value of the identification evidence against the risk of the jury being "irrationally impressed" by the identification evidence, notwithstanding the jury’s awareness of the possible weaknesses in the evidence.

As to the exercise of that discretion, I can find no error in the approach taken by the trial judge.  The possible weaknesses in the evidence of Robert Versace were identified on the voir dire.  They were all matters that the jury was well able to assess for itself, and would have to assess before deciding whether to act upon the evidence of Robert.  This was not a case in which the witness had made an identification using a procedure that was flawed or that had difficulties which could not readily be explored in evidence.  In that respect the present case differs from R v Harris (No.3) (supra).

I am satisfied that the judge approached the issue of the exercise of his discretion on a correct basis, and in my opinion no error by the judge has been shown.

I turn now to the adequacy of the directions given by the trial judge in relation to Robert’s evidence.  Such cases as there are in this area treat voice identification as something to be approached in a manner similar to visual identification, and as requiring the same degree of care, if not more.  I agree with that approach.

The trial judge was at pains to identify for the jury the matters that should be considered before they acted upon Robert’s evidence.  He correctly described the evidence as the "linchpin" of the prosecution case.  As he said, it was the only piece of evidence "which, if correct, unequivocally places the accused at the Versace house at the time of the robbery."

In brief, the judge made the following points to the jury.  He told them that voice recognition was not always reliable.  He said:

"You may well think that some people do make honest and bona fide mistakes about it."

He said:

"You may well think that mistakes in voice recognition do and can happen."

He told the jury that some people might be better at recognising voices than others, and some people’s voices might be more easily recognisable than others.  He referred to the significance of whether a voice had a distinctive feature, and told the jury that they had had the chance to assess the accused’s voice.  He made the point that Robert’s recognition was based on a very small sample, only three or four words.  He said that these had been spoken within a few seconds.  He referred to the noise and turmoil at the time.  He reminded them that were considering the evidence of a child and not of an adult.  He raised for their consideration the question of whether Robert had consciously or unconsciously sought to please his father, by agreeing with his father that the accused was one of the robbers.  He referred to the fact that Robert did not tell anyone that he recognised Mr Bueti by his voice until about ten months had elapsed.  He asked them to consider the credibility of Robert’s explanation for the delay.  He reminded them of the circumstances in which Robert told his father that he recognised Mr Bueti’s voice.  He referred to the fact that Robert’s sister, who was in the same room and who also knew Mr Bueti, was not called as a witness.  He told the jury that they might infer that her evidence would not have supported that of Robert if she had been called.  He referred to the fact that neither Robert nor any other member of the family had told the police that one of the robbers was a short man.  He then said:

"If you were to be minded to be satisfied that the accused was one of the robbers at the house that night, based solely on an acceptance of the voice recognition by Robert Versace, and that is entirely a matter for you, you should first give his evidence about it very careful scrutiny before reaching such a conclusion."

He then went on to refer to the fact that the evidence of another witness, Ms Bawden, might help substantiate what Robert had said.  She had given evidence about dropping Mr Bueti off at the house of Mr Morshead on the night of the robbery.

Complaint was made that the judge did not tell the jury that the danger of a mistake was greater if the voice was not distinctive.  In my opinion that point was adequately brought to the jury’s attention.  Complaint was also made that the judge did not sufficiently emphasise the danger of relying on an identification which was disclosed only after the period of delay that in fact occurred.  Again, in my opinion, the judge adequately brought that matter to the jury’s attention.

There are, however, two aspects of the judge’s directions to the jury that have caused me concern, even though they were not raised with the judge and no further directions on the topic were sought at the time.

The evidence of Robert Versace was crucial to the prosecution case.  Without his evidence there was, in my opinion, no basis upon which the jury could have convicted Mr Bueti.  This is merely to emphasise the importance of the evidence.  There were features about the identification by Robert that, as a matter of commonsense, necessarily cause one to reflect carefully upon the quality of the identification.  These were adequately brought to the attention of the jury.  But, considering all the circumstances of the case, it is my opinion that the judge’s direction to the jury should have emphasised, more firmly than it did, the caution that was required before the jury decided to accept the evidence of Robert Versace.

The judge did not, for example, tell the jury that he was giving them a warning that they should consider the evidence of Robert with great care.  By that I mean, he did not use the word "warn".  Some decisions have referred to the desirability of an explicit warning in cases like this, the warning being backed by the authority of the judge.  He did not, as is sometimes done in identification cases, tell the jury that the experience of the courts has been that there are dangers lurking in voice identification, nor did he tell them that the experience of the courts has been that honest mistakes have occurred.  Once again, I emphasise the absence of any reference to the actual experience of the courts, a reference which adds real emphasis to what is said.  He did not say that there are particular dangers associated with this type of evidence, or that the risk of mistakes by honest witnesses is high.  He did not tell the jury that experience has shown that miscarriages of justice have occurred as a result of mistaken identifications.

The expressions that I have used have been taken from summings up used in other cases.  There is no particular magic in any one of them.  Nor do I suggest that all or any of them must be used in every case, nor that all of them should have been used in this case.

My concern is that the approach taken by the judge failed to emphasise adequately the care that was required before the jury convicted upon the basis of Robert’s evidence.  I consider that more emphasis should have been given to the need for care, using some of the expressions just referred to.  I do not think that the warning to the jury to "give his evidence about it very careful scrutiny" was adequate to that end.

I consider, having regard to the circumstances of this case, that it was a case in which it was desirable, moreover, that the judge tell the jury in very clear terms that, unless they were satisfied beyond reasonable doubt that Robert was correct in his voice identification, it would be unsafe to convict Mr Bueti and they should acquit.

It may be that that specific direction would have sufficed, in addition to what the judge said.  However, I am inclined to think that some of the explicit warnings identified by me should have been given.

It could be said that such a direction is implicit in the judge’s directions, when one takes into account directions that he gave elsewhere about the need for the prosecution to prove its case beyond reasonable doubt.  And, I acknowledge, in the course of the directions to which I have referred, the judge told the jury that for Mr Bueti to be convicted, more than his mere involvement on the fringes must be proved.  He said:

"It must be positively proved that he was in the centre of it and he was actually at the Versace house on the night.  If that is not proved beyond reasonable doubt, you must acquit him."

However, I am not satisfied that that would have brought home to the jury the importance of being satisfied of the reliability of Robert’s identification beyond reasonable doubt, before they should or could convict.

There is also the point that in telling the jury that Ms Bowden’s evidence might help substantiate what Robert said, the judge did not point out that her evidence did not go further than putting the accused at the Morshead’s house on the night in question.  The critical issue was whether he later went to the Versace house.

I acknowledge that there is an element of impression in this.  I am naturally loath to set aside a verdict given after a summing up which was, in all other respects, thorough and well-balanced while commendably economical.  Nevertheless, the evidence of Robert Versace was critical to the prosecution case and to the reaching of a conclusion about Mr Bueti’s guilt.  The voice identification was affected by factors that could give rise to a real doubt about its reliability.  For those reasons I consider that particular emphasis should have been laid upon the need for caution, and that the failure to do that means that the trial has miscarried.

Corroboration direction

It was argued by counsel for Mr Bueti that the jury should have been directed that they should not convict on the basis of Robert’s evidence, unless that evidence was corroborated, and that the jury should have been given a full direction in traditional terms on what corroborative evidence was available.

In South Australia the Evidence Act has abrogated any rule of law or practice that might oblige a judge to warn a jury that it is unsafe to convict on the uncorroborated evidence on oath of a child: section 12a.

The statutory abolition of the former rule of law or practice does not remove the power and obligation of a trial judge to give a warning to a jury about the danger of convicting on the evidence of a witness whose evidence is potentially unreliable, the warning in such a case being given in a form that meets the justice of the particular case: Bromley v The Queen (1986) 161 CLR 315 at 319 Gibbs CJ. It is more likely that a warning should be given if the danger of acting upon the relevant evidence is one that the jury may not have perceived, or from which their attention may have been diverted: Bromley v The Queen (supra) at 325 Brennan J.

I consider that the approach to be taken, in this respect, to the evidence of children is that outlined by King CJ in R v Pahuja (1987) 49 SASR 191. There King CJ dealt with the evidence of the victim of a sexual offence. He considered the approach to be taken after the enactment, by s34i of the Evidence Act, of a provision abrogating any rule of law or practice requiring a warning against acting on the uncorroborated evidence of the alleged victim of a sexual offence.

In brief, King CJ said that the omission to give a warning cannot be a ground of appeal, because there is no longer a rule of law or practice requiring such a warning.  If a warning was not given, then the question was whether that gave rise to the risk of a miscarriage of justice, and that would depend entirely upon the circumstances of the particular case and whether, in the light of those circumstances, it was necessary to give a warning.  He also said that if the judge took the view that a warning should be given, the judge was free to frame the caution or warning in such terms as the judge saw fit.  There was no obligation to give a warning in the traditional terms used for corroboration directions.

In the present case the judge saw fit to give a warning, the terms of which I have set out above.  I consider that it was appropriate to give a warning.  I consider that the warning that the judge gave was adequate.  It might have been, with respect, a little more emphatic or a little longer, but that is a matter of style.  I do not accept the submission that the judge should have told the jury that it was dangerous or unsafe to convict on the basis of the evidence of Robert alone.  In that respect, I consider that the direction given was quite adequate.

Directions relating to Ms Bawden.

The complaint made under this head was that the trial judge did not bring to the attention of the jury various inconsistencies in the evidence of Ms Bawden.  As I have already mentioned, he told the jury that her evidence might substantiate that of Robert Versace to the extent that she said that she had dropped Mr Bueti at Mr Morshead’s house on the night in question.

In my opinion there is no substance in this complaint.  It was not incumbent upon the trial judge to go through the various inconsistencies himself.  He reminded the jury that various inconsistencies had been identified in the evidence of Ms Bawden.  He did this before he dealt with the evidence or Robert Versace.  It is also relevant to bear in mind that the trial was a relatively short one, spread over three days, and that the jury had heard addresses from counsel on the same morning as that on which the judge summed up to them.

I would reject this ground of appeal.

Jury deadlock

The jury retired to consider their verdict at 12.57pm.  The jury sought a redirection during the course of the afternoon.  At 6.04pm the judge brought the jury back to the courtroom.  He enquired whether they were likely to reach a verdict within a short time or to reach a point of deadlock within a short time, or whether they would like further time, in which event the judge would allow time for a meal break.  The Foreman then told the judge that the jury was "at deadlock", and in response to a further question from the judge said that he did not think there was any profit in deliberating further.  The judge asked the jury to retire for a few moments while he discussed the matter with counsel.  Counsel for Mr Bueti then submitted that the judge should clarify whether the jury were in fact deadlocked, and if there was no possibility of a verdict, then the jury should be discharged.  Counsel for the prosecution argued that the trial judge should give a "Black direction".  That is what the judge decided to do.

He brought the jury back into court at 6.11pm.  He then began to give a Black direction but, just after he started, the Foreman interrupted to say that the jury had had a further discussion and "... would just like a little more time if we can."  The judge decided to complete the Black direction and the jury then retired at 6.15pm, the judge having told them that he would not take a verdict before 7.30pm.  The jury returned with their verdict at 7.45pm.

I can find no fault in the course followed by the judge.  I do not consider that the judge was obliged to act immediately upon what the Foreman said.  The purpose of a Black direction is to assist a jury that is having difficulty in coming to a conclusion.  If there was no prospect of the jury reaching a conclusion, then it was incumbent upon the trial judge to discharge the jury, but he was entitled to give them the assistance of a Black direction unless it was clear that there was no point in doing so.  In any event, even if I am wrong in that, and if the view were taken that the judge, before embarking upon the Black direction, should have enquired further whether the jury was in fact deadlocked, the request by the Foreman for more time indicates that it would have been inappropriate to discharge the jury at that stage.

Unsafe and unsatisfactory verdict

The question under this head is whether the jury, acting reasonably, should have entertained a reasonable doubt about the guilt of Mr Bueti.  The Court must make its own assessment of the evidence, making due allowance for the significance of the manner in which witnesses gave their evidence before the jury.

In my opinion the jury’s finding that Mr Bueti was guilty must depend upon an acceptance of the evidence of Robert Versace.  The obstacles to the acceptance of his evidence were apparent, and were identified for the jury.  The manner in which he gave his evidence was important, but not decisive.  I say that because some of the obstacles to the acceptance of his evidence are matters which, in my opinion, did not depend much, if at all, upon the manner in which he gave his evidence.  For example, in the nature of things the possibility of an honest mistake cannot be resolved solely by considering the demeanour of a witness, although one could form an impression about the competence and reliability of the witness.  Nor can the limitations upon the reliability of voice identification be resolved by considering demeanour.  On the other hand, some of the matters were matters upon which the impression that the jury formed of Robert was important.  For example, his explanation for his delay in disclosing the fact that he recognised Mr Bueti by his voice, and the general reliability of Robert as a witness.  Likewise, the manner in which he described the events in question, and his description of the circumstances of the voice identification.

In the end, the question is whether the obstacles to the acceptance of Robert’s evidence were such that, acting reasonably, the jury should have entertained a reasonable doubt about the guilt of Mr Bueti.  I have given careful consideration to this issue but, in the end, have come to the conclusion that Robert’s evidence was capable of supporting a conclusion beyond reasonable doubt.  I do not regard the obstacles to the acceptance of his evidence, to the extent that they could not be resolved by a consideration of him as a witness, as matters such that, acting reasonably, a jury should have been left with a reasonable doubt about the guilt of Mr Bueti.  I consider that they were matters that were properly to be considered and weighed by the jury and are appropriately left for its resolution.  I emphasise that none of these obstacles are matters of which the jury was unaware, or as to the significance of which the jury was likely to be unaware.

In saying that I have not ignored the other evidence in the case.  I have concentrated upon Robert’s evidence because a conviction depends upon the acceptance of that evidence.

For those reasons I conclude that, although the case may be said to be a borderline one, the conviction was not unsafe and unsatisfactory.

Appeal against sentence

The judge sentenced Mr Bueti to imprisonment for 8 years.  He considered him to be a good candidate for parole, and fixed a non-parole period of 5 years.  The judge would have sentenced Mr Morrissey to imprisonment for a term of 8 years, but discounted that head sentence on account of his plea of guilty to 6 years.  He fixed a non-parole period of 4 years and 3 months.  He said that Mr Morrissey was not a particularly good candidate for parole.

Neither appellant attacked the head sentence.  In each case the appeal was directed to the length of the non-parole period.

In view of my decision that Mr Bueti’s conviction should be set aside, it is not necessary to deal with his appeal against sentence.

I turn to the appeal by Mr Morrissey.

Because of the relevance of the head sentence to the fixing of the non-parole period, it is appropriate to say that I consider that the head sentence was appropriate.  Armed robbery is a serious offence.  In the present case, the invasion of the home of the Versace family, and the ordeal to which the family was subjected, adds to the seriousness of the offence.

Counsel for Mr Morrissey challenged the finding that Mr Morrissey was not a good candidate for parole.  He made the further point that Mr Morrissey’s attitude to parole might be influenced by the rehabilitative effect of the period of imprisonment served under the head sentence.  For that reason, he argued, the Court should fix a non-parole period on the low side to allow for the possibility of that happening.  He also argued that as Mr Morrissey had not had the benefit in the past of a rehabilitative approach, there was all the more reason to consider such an approach now.  Complaint was also made about disparity between Mr Morrissey’s non-parole period and the non-parole period fixed in relation to Mr Hull, one of the others involved in the offence.

I begin by noting that the fixation of a non-parole period is not solely concerned with rehabilitation of the offender.  The duration of the non-parole period must also reflect the other purposes of sentencing.

I reject the submission that the trial judge was obliged to fix a non-parole period at the low end of the appropriate range, because release on parole was at the discretion of the Parole Board (s67 Correctional Services Act, 1982) and because Mr Morrissey might undergo a change of attitude while in prison.

The Court must sentence an offender, and fix a non-parole period, on the basis of the facts known to the Court at the time of sentencing, and on the basis of its conclusions from those facts.  I think it likely that the judge did not expect Mr Morrissey’s attitude to change while he was in prison.  That conclusion was open to him.  It is the responsibility of the Court to fix a proper non-parole period on those facts.

Nor is it appropriate for a Court to fix a non-parole period on the basis that the Court merely identifies the earliest date by which, should circumstances alter, release on parole might be appropriate. That sort of approach to the fixing of a non-parole period has been rejected in the past: Power v The Queen(1973) 131 CLR 623. It is the function of the Court, acting upon the information before it at the time of sentence, to fix what it then considers to be an appropriate non-parole period. The Court takes into account the fact that, if the head sentence is a period of imprisonment of 5 years or more, the Parole Board has a discretion in relation to the release of the prisoner once the non-parole period has expired. It follows that the Court cannot assume release at the expiry of the non-parole period. But it remains the function of the Court to fix a minimum period of imprisonment, on the information then available to the Court. It would make no sense to fix a lesser period because release might not occur at the expiry of the appropriate minimum period.

In concluding that Mr Morrissey was not a good candidate for parole, the judge referred to his significant criminal record, and in particular to five convictions for driving while disqualified, for the last of which the judge noted that he had been imprisoned for 12 months.  Counsel correctly pointed out that that last sentence was not a sentence of imprisonment but, under Victorian legislation, an "intensive correction order".  While the detailed nature of such an order is not clear, it is clearly an alternative to imprisonment.  However, I do not think that that slight inaccuracy on the part of the sentencing judge could have affected his approach.

The judge was right to say that Mr Morrissey had a significant criminal record.  His convictions extend over two pages.  About half of them are for traffic offences, and the others are relatively minor.  About half of them appear to have been committed while he was aged 18 years or less.  But the fact remains that this is a significant criminal record, even though it does not include any offences that the criminal courts tend to describe as truly serious offences.  It should also be noted that most recent offences, including the last offence of driving while disqualified, were committed after the occurrence of the robbery.

In my opinion the judge was entitled to conclude that the regular defiance of orders suspending Mr Morrissey’s driving licence, indicated an attitude to court orders that did not augur well for him complying with parole conditions.  I do not consider that it can be said that that conclusion was not open to the judge.  It could be added that the fact that Mr Morrissey had had the benefit of a bond in 1992, (which, admittedly, he did not breach) and that the armed robbery was committed shortly after his release from imprisonment, did not assist his case.  It is always relevant to consider, when fixing a non-parole period, whether a person has had the benefit of leniency in the past, and the commission of an offence, soon after release from imprisonment, is a matter that suggests an attitude of defiance of the law.

In my opinion, the attack upon the duration of the non-parole period fails because the judge fixed it upon the basis of a conclusion about Mr Morrissey to which the judge was entitled to come.  On the basis of the conclusion that the judge reached, the non-parole period cannot be regarded as excessive.  If that conclusion cannot be attacked, then neither can the fixation of the non-parole period.

I add that I reject the submission that the sentencing judge was obliged to seek a report, pursuant to s32(9) of the Criminal Law (Sentencing) Act, if the judge had reservations about Mr Morrissey’s suitability for parole. No submission was made to that effect by counsel before the sentencing judge, even though the judge indicated his concern about Mr Morrissey’s attitude to compliance with conditions of parole. Of course, the judge had power to order a report from the Parole Board, but it would be wrong to say that it is the duty of the judge to seek such report, as a matter of course, if he has reservations about the likely response of an offender to parole.

The final complaint made was of the disparity between Mr Morrissey’s non-parole period and a non-parole period of 2 years 6 months, fixed by a different judge, in relation to Mr Hull, one of the other offenders.  Mr Hull received a head sentence of 5 years’ imprisonment.  Mr Hull’s head sentence was as low as it was because he pleaded guilty and because the judge found that his involvement in the offence was minimal.  As to the non-parole period, the judge who sentenced Hull did so on the basis that despite Hull’s bad record, a record worse than that of Mr Morrissey, he had made substantial progress towards rehabilitating himself from drug addiction, which addiction led him to commit the offence, and on the basis that there were good prospects of him being permanently rehabilitated.  The judge also took the view that Mr Hull’s bad record was partly explained by his unfortunate personal history.  Counsel for Mr Morrissey argued that the grounds upon which leniency was accorded to Mr Hull were dubious.  In my opinion, that approach is not open.  The fact is that those findings were made, and Mr Hull was sentenced upon a basis quite different from that upon which Mr Morrissey was sentenced.  In my opinion Mr Morrissey’s appeal cannot be used as a vehicle to attack the findings of fact made by the judge who sentenced Mr Hull.

As there are findings that there were significant differences between the involvement of Mr Morrissey in the offence and that of Mr Hull, and between their personal circumstances, it follows that the difference between the non-parole period which was fixed in relation to each cannot give rise to the legitimate sense of grievance which supports a conclusion that there is a disparity calling for interference by this Court. The High Court recently considered the question of disparity between sentences in Postiglione v The Queen (1997) 71 ALJR 875. My understanding of the judgments in that case is that each member of the Court accepted that, as it was expressed by Dawson J and Gaudron J (at 878):

"... In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated."

See also McHugh J at 884, Gummow J at 891 and Kirby J at 899.  In the present case the different non-parole periods are explicable in terms of the differing bases upon which the sentences were imposed, and in my opinion no disparity calling for interference by this Court emerges.

Conclusions

In my opinion the order of the Court should be that the appeal by Mr Bueti against his conviction be allowed, that the conviction be set aside, and that a retrial be ordered.

The appeal by Mr Morrissey against the sentence imposed upon him should be dismissed.  It is not necessary to make any order in relation to the appeal by Mr Bueti against the sentence imposed on him.

LANDER J:         I agree with the reasons of the Chief Justice in relation to both appeals.

I agree that Mr Bueti’s appeal ought to be allowed and the conviction set aside and that a retrial be ordered.

I agree that Mr Morrissey’s appeal ought to be dismissed.

BLEBY J:   I also agree with the reasons of the Chief Justice and with the orders he has proposed in both appeals.