R v Casey
[2005] VSCA 135
•26 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 340 of 2002
| THE QUEEN |
| v. |
| IAN CASEY |
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JUDGES: | WARREN, C.J. and BATT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 February 2005 | |
DATE OF JUDGMENT: | 26 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 135 | |
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CRIMINAL LAW — Appeal against conviction — Armed robbery — False imprisonment — Directions of the trial judge — Consciousness of guilt —Verdicts not unsafe and unsatisfactory.
Sentencing — Aggravating factors — Significant breach of trust — Total effective sentence of seven years' imprisonment with minimum term of five years not manifestly excessive — Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan QC DPP with Mr. M Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
For the Applicant | In person |
WARREN, C.J.:
The applicant seeks leave to appeal against conviction on one count of armed robbery and two counts of false imprisonment. He also seeks leave to appeal against sentence.
On 29 July 1999, the Menzies Tavern in Little Collins Street, Melbourne was the scene of an armed robbery involving four men. The applicant, Ian Casey and another, David Paul Dent were charged on one count of armed robbery and two counts of false imprisonment. They both pleaded not guilty. Casey and Dent were separately convicted with respect to their involvement in the robbery. Later in time Christopher Neale Slater pleaded guilty and was convicted on the same counts. A fourth person, Peter Algie, was subsequently charged but acquitted.
The tavern engaged security services from about April 1997 through a security business, Security Risk Control Australia. Dent was the owner and principal of the security business and Casey was an employee. The applicant was located by Dent to provide security services to the Menzies Tavern. His role was to check upon patron behaviour and collect takings from time to time throughout shifts. On 10 June 1999 the tavern terminated the services of Dent’s security business.
In the trial of the applicant evidence was given by Anthony Davis, assistant manager of the Menzies Tavern. He said that on 29 July 1999 at about 7.00pm he asked patrons to leave the gaming area and shortly after the patrons had left the tavern, he closed up about 8.00pm. A staff member, Erin Pyne, locked the front doors of the tavern and Davis took a till to his office where other tills had been placed already in the office safe. Davis described rolls of coins wrapped in paper. He said that whilst organising the money he received a phone call from Pyne who was downstairs. She asked him to confirm a restaurant booking. Davis said the call came shortly after 8pm. He took the call from the person who wanted to confirm a booking for the restaurant the next day under the name of “Anderson”. The caller told Davis he was from the State Revenue Office. Telephone records revealed that the call was made from the mobile telephone of Dent. Coincidentally, that office was located close by to the tavern. Davis put the call on hold and went to check the bookings in the next room that was in another area close by. He moved a few metres and at the entrance of the restaurant area of the tavern he was attacked by two men.
Davis described the first person as wearing a balaclava, dark clothing including a bomber jacket and white coloured rubber gloves, being about six feet and one inch in height[1] and holding a black bar. Davis said the second person was also wearing a balaclava, dark clothing and white coloured gloves and was about five feet eight inches or nine inches and held a handgun.
[1]The witness used imperial measure.
Davis said that the men pushed him through a door into another area of the tavern. He was forced to the ground and his wrists were bound with grey electrical tape by one of the men and a linen bag, apparently taken from the tavern restaurant, was placed over his head. Davis could not see. While Davis was being taped up one of the men told him that they did not want to hurt him and that they were just there for the money. Davis said he was then taken to the manager’s office and the same man spoke to him, in a voice bearing an Australian accent, and directed him to open the safe. Davis said that the person whose voice he heard then, was the only voice he throughout the whole episode. A light was on in the office but Davis said the rest of the tavern was in darkness. He opened the safe by pulling the doors as he had not yet locked up. Davis was then taken to a couch in the area near the restaurant. He sat with one of the robbers who spoke to him. Davis had the impression that he was the same person who spoke to him before. At one point a stun gun was used on Davis.
While all this was happening Pyne was brought into the office and bound up. Throughout, Davis could hear tills being rattled and money moved.
Davis depicted the Menzies Tavern as a rambling place over a number of levels. He had worked there for about six weeks prior to the robbery and said it was not an easy place to get around. Davis said he would still become lost in the building after six weeks of working there.
After the events just described, Davis and Pyne were moved about by one of the two men and left alone in the women’s toilets for about ten minutes. Whilst there Davis said he heard his mobile phone ring in the manager’s office. One of the men returned to Davis and Pyne in the women’s toilets. The person who had spoken earlier asked Davis whether either of them had a mobile phone on. Davis said he did. Davis and Pyne were then taken into an area of the tavern called the gaming room. The robber who had spoken previously asked Davis for the keys to a safe. Eventually, after some difficulty, the safe was opened. Davis estimated, in his evidence, that there was about $22,600 in the safe at that time.
The same person who had moved Davis previously then took him into the disabled toilets area. The person told Davis to sit and not move and he would return. The person then left and returned about five or six times. After what Davis believed to be five or ten minutes, the person did not return again. Davis freed himself and contacted the police by telephoning “000” and raised the alarm.
Later that evening, after being interviewed by the police at tavern, Davis discovered that a mobile phone that he had left in his jacket in the manager’s office was missing. It was a Nokia 3810 mobile telephone that the police later found during the execution of a search warrant at the applicant’s house. Davis identified the telephone as his during the trial.
Documentary evidence at the trial of Casey, consisting of telephone records, showed that a call was made to the mobile telephone of Davis at 8.48pm on 29 July 1999 that was diverted to a message bank service.
Davis also described a dumpmaster that was hired for the tavern and which contained old chairs and other items. Shortly after the robbery, a broken chair leg was found inside the tavern. Davis was asked about the locating of the chair leg and could not explain how it reached the tavern as all rubbish had been cleared outside. There was evidence at the trial of Casey that two particular individuals attended a side entrance to the tavern late in the day of the robbery. Davis allowed them to enter via a rollerdoor. They were Justin Mair, a former employee and Cheryl McNeilage, a then current employee of Menzies Tavern. After he let them in, Davis said he left Mair and McNeilage for about 30 minutes whilst they packed up some plastic chairs that were being thrown out. Davis was equivocal in his evidence about the time of their entry. He said that they came in at 4pm. But it might have been 7pm. When asked in his evidence whether Mair and McNeilage came in just before the phone call from the person called “Anderson”, Davis said he thought they were there a “couple of hours beforehand”.
Davis also gave evidence that whilst he was located in the toilets area, at one point he managed to remove some tape from his wrist and he thought he left it on the floor.
Pyne gave evidence at the Casey trial. She described how she was working at the Menzies Tavern on 29 July 1999 and that she had locked up at the end of the day. She said that the only other person present was Davis. She described that she emptied all the money from the safe, counted it and put it in the bottom drawer that was locked separately by a key. Pyne said that while she was counting the money a phone call came through from a male person who wanted to check a lunch reservation. This call came through about 8.05pm to 8.10pm. Pyne said she put the call through to Davis. She said another call came through, this time for Davis. She said she put the call through to him but it went unanswered.
Pyne described how she then cleaned up, turned out the lights and went up an internal stairwell. It was dark and she could hear people talking. She said she could see two people sitting on the couch talking. Pyne saw that one of the two people was wearing something on his head and holding a stick or baton. It was very dark. Pyne said the person wearing what she described as a black balaclava yelled at her to stop and to go into the office. Pyne said that the light was on in the office and that she could see a man bent over the safe pulling things out. Pyne was told by the first man to sit in a chair at the end of the office. Her wrists and eyes were then taped and she was unable to see. The man who tied her up was wearing cream or beige latex gloves. When she was being taped up, Pyne heard a snap sound that she thought was the sound of a latex glove. Pyne described being moved to the toilets consistent with Davis’ description. She said that she heard the same voice throughout the episode, that it was an Australian accent, youngish, maybe a person in early twenties. Pyne told the Police that she heard a voice that she identified as older and more confident speaking, as if on a telephone. This voice she heard say “we’ve got the barmaid as well,” then a pause, then further conversation. Pyne knew the applicant. She gave evidence that she was familiar with the applicant’s voice, namely, that he had a Scottish accent. Pyne said that the voice of the person who telephoned her about the lunch reservation was not the applicant. She said that the person also spoke with an Australian accent.
Pyne had a boyfriend, Ivan Rabot. He was parked in a car waiting to pick Pyne up at Menzies Tavern at about 8.15pm to 8.30pm. He gave evidence at the trial that he waited for a few minutes and then went to check if he could see anyone in the tavern. He could not and he returned to his car. Rabot moved his car a small distance, waited, and checked the tavern again. He repeated the process and then knocked on the rollerdoor of the tavern. He saw a white sedan parked in the laneway of the tavern on the right hand side. The car had some signage. He walked away and passed a person whom he saw enter the white vehicle. The person was wearing a security guard uniform, was an inch taller than Rabot (who was five feet seven inches), of stocky build, wore a moustache and had dark, receding hair.
After waiting longer, Rabot went back to the rollerdoor and found it open. He subsequently telephoned the police and raised the alarm.
Evidence was given at the trial by Bryan Hogan, who was working in a building near Menzies Tavern on the evening of the robbery. He went into Little Collins Street at about 8.45pm. He saw two men run from the stairs outside the front of the tavern, enter a parked white Falcon vehicle and drive off at high speed down the laneway. Hogan said the men were running quickly, one man entered the front seat and one entered the back and the vehicle began to move before the doors were closed. Hogan described the man who entered the rear of the vehicle as being about six feet in height or taller with light hair. He said the man who entered the front of the vehicle was a little taller. Hogan said both men were wearing dark clothes and that neither man had facial hair.
At the scene, the police retrieved a padlock and a set of keys, a large piece of rubber glove (found in manager’s office), a chair leg and black gaffer tape (found in the women’s toilet). The police also found another piece of rubber glove, a calico bag and more black gaffer tape. Forensic testing did not produce any finger prints on the chair leg or the gaffer tape.
Janis Moss was the manager of Menzies Tavern. She described the knowledge acquired by the applicant of the layout of the tavern and his familiarity with its aspects, in particular, the security arrangements. Moss said that the applicant was critical of the security arrangements at the tavern. She said he discussed with her how he thought things could be improved and demonstrated how security cameras and sensors could be evaded including by hiding underneath the stairwell. The applicant had told her it would be easy for someone to enter the tavern and rob it after 6.00pm. Moss said that there were a total of four security cameras at the tavern but that only staff would know of the existence and location of the fourth camera. She said that the applicant, because of his previous employment as security officer for the tavern, knew of the fourth camera. Moss said that there were occasions when she left Casey to lock up the tavern, set the alarm system and lock the till drawers in the hotel safe in the manager’s office. Moss said that she trusted Casey.
She described the termination of the security contract with Dent’s business and said that from 10 June 1999 onwards she did not see the applicant. She said that Dent told her what she could “do with my hotel” at the termination of his services.
Moss also identified rolls of coins shown to her as being the type of packaging utilised by the tavern’s bank. These rolls of coins were found by police upon executing a search at Casey’s home. Moss said that after the robbery $421.52 in alcohol was missing and a total of approximately $27,500 in cash.
A number of other witnesses gave evidence at the Casey trial. They included Leon Karpouzis. He worked for the security company in July 1999 and worked at Menzies Tavern for several years. He knew Casey. He gave evidence that at some point before the armed robbery, Casey sounded him out about committing an armed robbery on the tavern. Karpousis told Casey he was not interested. However, he could not say when the conversation occurred and he admitted that he thought that the applicant was implying that he and Casey perform the armed robbery but that he might have misunderstood. There was also evidence from Paul William Burke, the chef at the tavern. He said that about a fortnight before the robbery the applicant and another male whom he had not seen before attended the tavern. They arrived at the cellar area and went up the stairs. Casey told Burke that the man was there to see the manager, Moss. Another witness was Rosslyn Hawkins who was the partner of Casey at the time of the robbery. She lived in Whittlesea, whilst Casey lived in Yan Yean. She said that Casey worked on Thursday, Friday and Saturday nights and that he would occasionally come to her home on those nights. She could not recall whether Casey came to her home on the night of the robbery. She said that he had two balaclavas and that at the time of the robbery he had a moustache.
There was also technical telephone evidence in relation to the mobile telephone of the applicant. The evidence disclosed that a number of calls were made on that telephone prior to the time of the armed robbery, at about 6.44pm, 7.53pm and 8.22pm. The evidence was that the calls originated from an area in the Melbourne CBD, around William Street. The evidence was that it would be virtually impossible for a person to telephone from their home (at Yan Yean) and for it to be picked up by a receiving tower in the CBD. Other telephone record evidence was led in relation to calls made on 29 July 1999. The telephone evidence related to the mobile telephones of Davis, Dent and Casey and, also, Rabot and the office of the Menzies Tavern. It revealed the following sequence of telephone calls:
8.03pm – Davis telephoned his girlfriend.
8.04pm – Dent telephoned the tavern.
8.48pm – A phone call was made to Davis’ mobile telephone and a message left.
9.09pm – A call was made from Casey’s mobile telephone originating in the Melbourne CBD.
9.14pm – Dent called Casey.
9.15pm - Rabot called from the Manager’s office at Menzies Office.
9.22pm – Rabot called the police.
9.32pm – Davis called the police.
9.34pm – Dent called Casey.
9.39pm – Davis called Moss.
9.40pm – The Police arrived at the scene.
9.41pm - Dent called Casey.
Telephone records showed that Davis’ telephone was used with a SIM card belonging to Casey from 1.45am on 30 July onwards. Forty-five calls were made on Davis’ telephone with Casey’s SIM card.
On 18 August 1999, after the police attended the applicant at his home, he telephoned Dent a few minutes later.
On 9 September 1999, the police executed a search warrant at the home of the applicant. The police found Davis’ mobile telephone. In his record of interview the applicant admitted the telephone was found at his home. He said he bought it from a place “similar to Cash Converters”, at Greensborough. He agreed that there was a SIM card in the telephone that was his. The police also found at his home two other mobile telephones. The applicant said he bought one at Bundoora Indoor Market. He was uncertain as to when he purchased the telephones except that it might have been about four weeks before the date of the robbery at Menzies Tavern. He said he bought the other mobile telephone from the chef at Menzies Tavern. He could not remember when. The applicant was unable to explain how he came to be using Davis’ telephone. During the search the police also found two balaclavas, one blue and one black. They were found in a bedside drawer. He admitted the balaclavas were his.
The applicant was unable to recall where he was on the night of 29 July 1999. He said sometimes he worked at a place called “Molly Blooms” (after he ceased working at Menzies Tavern) and sometimes he stayed with his girlfriend, Hawkins. He said he could also have been at home. The applicant was unable to provide an explanation as to why phone calls were recorded on his mobile phone from the Melbourne CBD on the night of 29 July 1999. He said he could not remember. In the record of interview, the applicant denied meeting Dent at about 8.00pm in the city on 29 July 1999. He further denied travelling in a white Ford Futura to Menzies Tavern. He also denied involvement in the robbery. When asked in the record of interview about telephone calls made to him by Dent on 29 July 1999 at 9.14pm, 9.34pm and 9.41pm, the applicant said he could not remember,
Initially, Casey and Dent were presented for trial together and eventually separate trials were ordered by the trial judge. The trial of Casey proceeded first. The applicant was found guilty on 3 counts, one count of armed robbery (count 1) and 2 counts of false imprisonment (counts 2 and 3) and convicted. He was sentenced to six years’ imprisonment on count 1 and two years’ imprisonment on each of counts 2 and 3. Each of the false imprisonment counts were ordered to be served cumulatively as to a period of six months. The total effective sentence was seven years. A non-parole period of five years was fixed. After his conviction, Casey provided information to the police that led to charges being laid against a third offender, Christopher Neale Slater. Slater was arrested on 27 February 2003. He later assisted police in obtaining evidence with respect to Dent. Slater had pleaded guilty to the same three offences as alleged against Casey and Dent. On 25 March 2003 Slater was convicted and sentenced to three years’ imprisonment wholly suspended for three years. The trial of Dent proceeded after Casey’s on 17 November 2003. Dent was found guilty on all three counts. On 23 December 2003 he was convicted and sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of five years. A fourth person, Peter Algie, was charged with offences relating to the armed robbery. He was eventually committed for trial in November 2003 and acquitted of all three counts.
The applicant relied upon the following grounds for leave to appeal against conviction:
1. That the learned trial judge erred in ruling that the accused’s answers in his record of interview to questions about being telephoned by David Dent on three occasions (9.14, 9.34 and 9.41pm of 29 July 1999) were capable of being used of evidence of guilt of the crimes charged.
2. That the verdict was unsafe and unsatisfactory in all of the circumstances.
At the hearing of the application the applicant sought leave to add the following further grounds:
3. The learned judge erred in her directions regarding the evidence of Ms Erin Pyne and, in particular, her directions were apt to reverse the onus of proof.
4. A miscarriage of justice resulted from the fact that, at trial, Mr Algie was effectively relied on by the Crown as not being involved in the robbery, whereas at Mr Dent’s trial (and Mr Algie’s subsequent trial) Mr Algie was said to have been involved as well.
Leave to add the grounds was granted during the hearing.
I turn then to the original grounds of appeal.
Until shortly before the hearing of the applications for leave, the applicant was legally represented. However, at the hearing he represented himself.
In both written and oral submissions the applicant relied upon ground 1 concerning the admission into evidence of the telephone calls to him by Dent on 19 July 1999. It was urged that the fact that the applicant could not remember the phone calls did not lead to the conclusion that he was lying. He said he could not remember the calls when the police spoke to him six weeks after the event. It was also submitted that as heavy reliance was placed by the prosecution on the association between the applicant and Dent, the possibility that the applicant had a plausible explanation for lying could not be excluded in any event: he may have wished to disassociate himself from Dent.
On the evidence, there were a number of telephone conversations recorded between the applicant and Dent after the robbery. It was open to the jury to consider whether or not the applicant had forgotten the calls on the night of 29 July 1999 or whether he lied from a consciousness of guilt. I have considered the directions of the trial judge and consider that they satisfied all the requirements of R. v. Edwards[2]. I do not consider the ground is made out.
[2](1993) 178 C.L.R, 193
The next ground relied upon, ground 2, was concerned essentially with the circumstantial evidence put by the Crown to the jury. The applicant submitted in written submissions that the Crown case was based on a combination of speculative matters rather than evidence from which safe inferences could be drawn. The applicant highlighted the fact that the DNA evidence on the part of a glove found at the scene excluded him as a contributor of DNA; that there were no eyewitnesses who placed him at the scene; notwithstanding that the applicant had extensive knowledge of the operation of Menzies Tavern, there were others who had the same knowledge as he; that the applicant was found guilty “by association” with Dent; that he was alleged to have had a motive because of anger at the manager of Menzies Tavern, Moss; that the witness Karpousis conceded at trial that he may have been mistaken in his interpretation of the statement of the applicant with respect to the latter’s interest in the execution of a robbery on Menzies Tavern; that the fact that he did not work on Thursday evenings was not proof of his involvement; and in particular, that Pyne gave evidence that the voice she heard was an Australian accent whereas the applicant emphasised that he had a strong Scottish accent; the description of the balaclavas used in the robbery were not sufficiently precise and accurate to establish that they were the same balaclavas as the one found at the home of the applicant; and that the making of telephone calls by the applicant to Dent and others after the robbery was not indicative of his guilt. The applicant submitted that when all these matters were considered together the evidence did not establish beyond reasonable doubt that he was guilty.[3] I have considered carefully all of the evidence, including the record of interview of the applicant. In the course of his oral submissions, the applicant said that there was new evidence that should have been before the Court at his trial, namely, the evidence of Dent and Slater who underwent trial at a later time. However, the submission overlooked the fact that the order for a separate trial was made on the application of the applicant. The separate trials of Dent, in particular, and later of Slater followed a slightly different course. For example, at the trial of Slater, evidence was led that the weapon used in the armed robbery was a chair leg, not a gun, as alleged at the trial of the applicant. Once the application for a separate trial was ordered, then the evidence followed its course. Before this Court, the applicant complained that he did not have the opportunity to cross-examine Dent. Once a separate trial was ordered that prospect was eliminated. In any event, even if a joint trial of the applicant and Dent had proceeded, it would not have been open to the applicant to compel Dent to give evidence. The opportunity to cross-examine Dent would have depended upon whether Dent elected to give evidence in the joint trial. Dent could have stood mute just as the applicant did. As for Slater, his admissions and co-operation with the police did not arise until after the applicant was tried and convicted.
[3]Reliance was placed on M v. The Queen (1994) 181 C.L.R. 487.
The applicant also complained that his evidence that he obtained Davis’ telephone from Dent was not before the jury. Against this submission it is significant that during the record of interview the applicant did not proffer that explanation as to how he came to have Davis’ telephone.
I consider that all the matters about which the applicant complained were matters properly before the jury and that on the evidence it was open to the jury to reach the verdict it did. I observe that the trial judge provided a thorough and careful charge to the jury and made it abundantly clear that the burden lay with the prosecution. I am not satisfied that the second ground of appeal has been made out.
I turn then to the added grounds of appeal.
The complaint concerning the directions with respect to the evidence of Pyne is not made out. It was a matter for the jury to assess the evidence of Pyne. Furthermore, the evidence of Davis was that he heard only one person speak. I have carefully considered, as already stated, the charge of the trial judge below. I observe that the charge comprehensively summarised the evidence and, also, submissions of counsel. Examination of the charge reveals that her Honour in the course of her charge with respect to the evidence of Davis and Pyne concerning the voices heard, did no more than repeat a point that had been made by the prosecutor, namely, that when the jury considered whether one or both of the robbers spoke and the question of whether the applicant was one of them, the jury should accept the evidence of Davis over that of Pyne in the event that the jury found that there was a difference between the two witnesses. I do not consider that there was any unfair aspect of the charge. Indeed the contrary. Upon so directing the jury, the trial judge then immediately put the converse argument that counsel for the defence made on behalf of the applicant during the closing address with respect to voices and the differences between the evidence of Davis and Pyne. In my view, her Honour properly directed the jury in relation to the onus of proof and their role as finders of fact. I do not consider that this added ground of appeal is able to be made out.
I turn next to the matter of whether there was a miscarriage of justice arising from the fact that Algie was relied on by the Crown as not being involved in the robbery whereas at the trial of Dent, Algie was said by the Crown to have been involved. Examination of the transcript of the trial reveals that at the trial of the applicant the prosecution did no more than confine the involvement of Algie to an external role at the tavern to be contrasted with the role of the two armed robbers inside the tavern. It transpired that Algie was not charged in relation to the robbery until after the trial of the applicant. It is apparent that by that time the evidence had developed and changed. Essentially, the complaint of the applicant was a sense of unfairness at his conviction preceding the disposition of others, in particular, Algie. This Court was informed by the Director that there was no material difference in the prosecution’s expressed attitude towards the involvement of Algie over the course of the various trials. The difference, it was said, was arguably one of detail only. Mr Coghlan submitted that in either case, the fair trial of the applicant was not prejudiced in any way and no miscarriage of justice occurred. I accept that submission. I do not consider that the remaining added ground of appeal is capable of being made out.
It follows that the application for leave to appeal against conviction should be refused. I turn then to the application for leave to appeal against sentence. The sole ground relied upon was that the sentence in all the circumstances was manifestly excessive.
The maximum penalty of imprisonment for the offence of armed robbery is 25 years. The maximum penalty for false imprisonment carries ten years.
The applicant urged before this Court that the sentence was manifestly excessive essentially on the basis that other persons he has encountered in gaol who have been convicted of armed robbery have received shorter sentences than him. He relied upon a history of hard work and supporting others and, also, character reports provided in support of him. The applicant emphasised that he had no prior convictions of this type, that he had work available to him upon his release from gaol and that he had a family that was suffering whilst he was in prison. The applicant considered the non-parole period did not properly reflect these considerations and
should be reduced.
Notwithstanding the personal circumstances of the applicant I observe that the armed robbery in this instance was professional and involved careful planning. It also involved the use of a firearm and another weapon, the theft of a large amount of cash and other property. It also involved a significant breach of trust in that the applicant was a former employee of Dent’s working at the Menzies Tavern. The circumstances of the robbery were frightening and involved the threatening and imprisonment of two employees including the use of a stun gun on Davis. In my view it is significant that no remorse has been shown by the applicant of the events of the robbery. I do not consider that the sentences of imprisonment with respect to the counts of armed robbery and false imprisonment or the order for cumulation on each of the false imprisonment sentences together with the fixing of the non‑parole period were in any way manifestly excessive. I would dismiss the application for leave to appeal against sentence also.
BATT, J.A.:
The relevant facts appear from the careful and detailed sentencing remarks of the County Court judge. The applicant addressed the court orally both as to conviction and as to sentence. I took him also to rely on the written outline of submissions which had been prepared by counsel for him.
In support of his challenge to his convictions as unsafe and unsatisfactory (ground 2) the applicant complained orally that there was new evidence, namely that of Slater and Dent; that he was never given a chance to explain how he came by the mobile phone of the victim Davis, which explanation, he claimed, the jury would have looked at in a different way; and that, although there was supposed to be a gun (carried by the applicant, I would add), when Slater’s case was heard there was no gun, only a chair leg.
Those complaints are answered by the following considerations. The reason
why the applicant’s counsel could not cross-examine Dent was that counsel had successfully sought separate trials of the applicant and Dent. In any case, Dent could not be compelled to give evidence. Slater had not confessed by the time of the applicant’s trial, so that his evidence was not available to the Crown. The applicant did not in his recorded interview take the opportunity of giving the explanation for his having Davis’ mobile phone which he stated to this Court. The applicant stated that he was advised by his counsel not to give evidence. That seems to have been a reasonable piece of advice and he went along with it. His claimed explanation was not therefore in evidence. (Her Honour, generously, allowed the speculative hypothesis that Dent might have given the mobile phone to the applicant to be put to the jury.) Slater pleaded guilty, so that the totality of the available evidence was not traversed in his case.
The other points the applicant put orally are also contained in the written outline. It was there said that the evidence did not exclude the possibility that the applicant was not the offender nominated by the prosecution. Whilst some of the items of evidence did not exclude that possibility they were consistent with it and in their totality formed a convincing mosaic. But in addition, there were, in my opinion, items of evidence which directly implicated the applicant. Thus, Davis’ mobile phone was found at the applicant’s home with the latter’s SIM card in it; Dent made telephone calls to the applicant shortly after the robbery and on 18 August 1999 the applicant telephoned Dent 17 minutes after police had left his (the applicant’s) home where they had executed a search warrant; it was open to the jury to find that the applicant lied in his recorded interview, as discussed later; the applicant’s account of his movements at and about the time of the armed robbery was not supportable on the evidence; the balaclava found at the applicant’s home appeared to be that which was worn by the robber in question during the robbery; and a roll of tape similar to that used to bind the wrists of Davis was found at the applicant’s home by police.
Two matters require specific mention. First, Ms Pyne’s evidence in cross-examination varied as to whether she heard one or two of the robbers speaking. It was for the jury to make its finding about that, in the context of all the evidence, including that of Davis that only one robber spoke. In that regard her Honour’s statement that it was entirely a matter for the jury as to whether they accepted the version of Pyne’s evidence that there were two voices did not reverse the onus of proof as asserted in writing. It was the hypothesis consistent with innocence, namely, that the applicant was not present in Menzies Tavern at the time, which had to be excluded (as her Honour told the jury on numerous occasions, including in her re-direction on the final morning of their deliberations), not a particular piece of evidence. This was not a case where the judge had in effect said it was up to the jury to decide which “version” as to the presence of the applicant they preferred. Murray v. The Queen[4] is quite distinguishable. Secondly, complaint was made that after the applicant’s trial and in the trial of Dent the prosecution changed their case theory. The complaint was that in the applicant’s case it was said that, if the jury could not exclude the possibility that the person the prosecution said was the applicant was in fact Algie, then the applicant should be acquitted, whereas, in Dent’s trial, Algie was said by the prosecution to be involved, though he was later acquitted. But because of Slater’s information the prosecution by the time of Dent’s trial knew precisely what part Algie played in the robbery. The significant point, however, is that in Dent’s trial the prosecution did not say that Algie was the robber present with Slater in Menzies Tavern, thereby excluding the applicant from presence within the building. Rather, it was able to say that Algie was keeping a look-out outside in King Street. The difference was one of detail only.
[4](2002) 211 C.L.R. 193.
The Director informed the court that he and his junior could find no error or support for the ground that the conviction was unsafe and unsatisfactory. The respondent’s written outline and oral argument give further reasons in support of the verdict and in refutation of submissions for or by the applicant, including some matters of fact which I have not troubled to mention. The trial judge gave a very careful charge, relating the law to the evidence and the submissions to the issues and making it clear that the onus of proof beyond reasonable doubt lay on the prosecution. Having undertaken my own independent assessment of the evidence, but paying full regard to the fact that the jury was the body which was entrusted with the primary responsibility of determining guilt and the fact that it had the benefit of seeing and hearing the witnesses, I am of the view, for the reasons given above and the additional reasons contained in the respondent’s outline, that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of all three counts. In my opinion, indeed, the case against the applicant, albeit circumstantial, was strong and cogent.
Ground 1 claimed that her Honour erred in ruling that the applicant’s answers in the recorded interview to questions about being telephoned by Dent on the three occasions on the evening of 29 July 1999 were capable of being used as evidence of consciousness of guilt. It was, I consider, well open to the jury to be satisfied beyond reasonable doubt that the answer that he could not remember was a deliberate lie and not told for a reason other than out of the consciousness of guilt of the crimes charged. It is to be observed that her Honour gave the jury a strong, and impeccable, direction as to the use as evidence of consciousness of guilt of the two sets of alleged lies in the recorded interview.
In the course of discussing ground 2 (that the verdict was unsafe and unsatisfactory) I have covered the two grounds added by leave given during the hearing, which claim respectively that her Honour’s directions regarding the evidence of Ms Pyne were apt to reverse the onus of proof and that a miscarriage resulted from the fact that Algie was treated differentially in the trials of the applicant and Dent.
In my opinion, the application for leave to appeal against conviction should be dismissed.
As to sentence, the applicant made the submission orally and in writing that
repeat armed robbery offenders are given lesser penalties than he was and he relied on his lack of prior convictions for this type of offence and various personal factors. But armed robbery is a very serious offence, carrying a maximum custodial penalty of imprisonment for 25 years, while false imprisonment carries one of ten years. Moreover, this was a very serious example of the crime of armed robbery as well as like examples of false imprisonment. The armed robbery was a highly professional one, planned very carefully and in detail, and it had a number of serious aggravating factors, including the carrying of a firearm, the use of the stun gun and the significant breach of trust. In my opinion, the individual sentences of imprisonment of six years for armed robbery and two years for each of the false imprisonments, the order for cumulation of six months of each of the false imprisonment sentences and the non-parole period of five years were none of them manifestly excessive but rather well within the range open to her Honour in the exercise of a sound sentencing discretion. I would dismiss that application too.
I do not wish to leave these applications without complimenting her Honour upon her conduct of the trial and the plea and upon her sentencing remarks.
EAMES, J.A.:
Having carefully examined the evidence in this case I felt no anxiety that the convictions of the applicant were unsafe or in any way tainted by error on the part of the learned trial judge. For the reasons given by the Chief Justice and Batt, J.A., I agree that the application for leave to appeal against conviction ought be dismissed. I also agree with the reasons given by their Honours for concluding that the application for leave to appeal against sentence ought be dismissed.
The proceedings against the applicant and David Paul Dent had initially been brought by way of a joint trial, but separate trials were later ordered by the trial judge. The proceedings were complex and required many rulings on matters of evidence and on procedural issues. Having had the opportunity to examine the conduct of both trials, and in particular the trial and sentencing process concerning
this applicant, I wholeheartedly agree with the observations of Batt, J.A. about the skill and fairness with which the trial and sentencing process were conducted by the trial judge.
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