R v Dudko

[2002] NSWCCA 336

Reported Decision: (2002) 132 A Crim R 371

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v DUDKO [2002] NSWCCA 336
FILE NUMBER(S):	CCA 60497/01
HEARING DATE(S):	21 June 2002
JUDGMENT DATE:	20 August 2002
PARTIES :	Regina (Respondent) Lucy Dudko (Appellant)
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 130; Blanch AJ at 131

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0680
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Appellant: In Person (Conviction) S J Odgers SC (Sentence) Crown: P E Barrett
SOLICITORS:	Appellant: David Giddy & Associates (Sentence) Crown: S E O'Connor
CATCHWORDS:	CRIMINAL LAW - rescue of prisoner, hijack, detain for advantage - appeal against conviction - whether jury influenced by pre-trial media coverage - whether sufficient evidence for reasonable conviction - whether certain evidence correctly admitted - whether directions to jury adequate - CRIMINAL LAW - possession of firearms - appeal against conviction - whether co-offender required to testify - where issue was exclusive possession by co-offender - whether trial judge removed questions of fact from jury's consideration - CRIMINAL LAW - appeal against sentence - whether offender doubly punished - where use of force was element of two offences - whether parity with co-offender - comparison where co-offender sentenced for additional offences.
LEGISLATION CITED:	Correctional Services Act 1952 Crimes Act 1900 Evidence Act 1995 Firearms Act 1996
CASES CITED:	Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Glennon v The Queen (1992) 173 CLR 592 Long v R [2002] QSC 54 Murphy v The Queen (1988) 167 CLR 94 Pearce v The Queen (1998) 194 CLR 610 Pemble v The Queen (1971) 124 CLR 107 Queen v Apostilides (1984) 154 CLR 363 R v Bell, NSWCCA, 8 October 1998 (unreported) R v D'Arcy [2001] QCA 325 R v Killick [2002] NSWCCA 1 R v Milat, NSWCCA, 26 February 1998 (unreported) R v VPH, NSWCCA, 4 March 1994 (unreported)
DECISION:	Appeal dismissed.

60497/01

SPIGELMAN CJ
SIMPSON J
BLANCH AJ

Tuesday 20 August 2002

REGINA v Lucy DUDKO

Judgment

1 SPIGELMAN CJ: On 25 March 1999, John Reginald Killick was an inmate of Silverwater Gaol. He escaped from that gaol by helicopter on that day. The helicopter had been flown to the gaol by a pilot who was forced to land by a woman. The principal issue in the trial was whether or not the Appellant was that woman. When Killick was subsequently apprehended he was in the company of the Appellant. Certain pistols were found on that occasion and some of the charges relate to that discovery.

2 The Appellant pleaded not guilty to the five counts with which she was charged. The jury convicted her on all counts. The counts were:

Count 1: Rescue inmate in lawful custody by force contrary to s32 of the Correctional Services Act 1952 .

Court 2: Assault member of crew of an aircraft contrary to s206(a) of the Crimes Act 1900.

Count 3: Detain for advantage contrary to s90A of the Crimes Act 1900.

Counts 4 & 5: Unauthorised possession of a firearm, in each case a pistol, contrary to s7(1) of the Firearms Act 1996.

3 The sentencing judge imposed the following sentences:

Count 1: Imprisonment for a term of ten years with a non-parole of seven years.

Count 2: Imprisonment for a term of ten years with a non-parole of seven years.

Count 3: Imprisonment for a fixed term of five years.

Counts 4 & 5: Imprisonment for fixed terms of three years.

4 All of the sentences commenced on 9 May 1999, being the date on which the Appellant was taken into custody. The maximum penalty for each of Counts 1 to 3 was fourteen years. The maximum penalty for Counts 4 and 5 was ten years.

5 The Appellant commenced a de facto relationship with Killick in late 1997. Killick was taken into custody on 21 January 1999 and remained there until his escape. He had been refused bail in relation to two counts of armed robbery and one count of shooting at a person.

6 The Crown case was that on the morning of Thursday, 25 March 1999, the Appellant attended the office of Helicopters Pty Ltd at Bankstown Airport to partake in a joyflight in a Bell 47 helicopter VH-AET. The flight was booked for 9.15am and the pilot was Timothy John Joyce. It was to fly on what was known as the “Harbour Bridge Track”, which included a flypass of the Olympic Stadium and Village, Sydney Harbour and Manly. The Appellant had also taken a previous ‘practice flight’ on 8 March 1999, along the same Harbour Bridge track with the same company.

7 The Appellant arrived in an agitated state carrying what appeared to be shopping bags that she insisted on taking with her into the helicopter. The flight commenced and proceeded to the Olympic Stadium where the Appellant requested that the pilot fly over the Silverwater Gaol that was to the north of the Olympic Village. She requested the pilot to fly lower over the Gaol and when he refused, pulled a pistol out of her purse, pointed at his head and said: “This is a hijack”.

8 She prevented the pilot from activating the hijack or emergency frequency transponders and switched off all the radios within the helicopter. She then pulled out and assembled a larger gun that the pilot believed to be some kind of automatic weapon and loaded it with an ammunition container. She instructed the pilot to descend into the gaol and land on one of the playing fields in the grounds.

9 As the helicopter landed, one prisoner ran towards the helicopter, stood on the skids and took the larger weapon from the Appellant and pointed it at the pilot. The prisoner was Killick. The Crown relied on the fact that only one prisoner ran towards the helicopter as an indication that the escape was planned in advance. The Appellant then produced a number of pages from the UBD street directory with a line drawn on them from the gaol to the Macquarie University area and directed the pilot to fly to Macquarie University and land on an oval. Mr Joyce was tied up and left in the helicopter.

10 The Appellant and Killick ran from the oval to a nearby car park where they threatened Peter Bax with one of the weapons, got into his car and forced him to drive them to Kurraba Road in North Sydney. After this they forced Mr Bax out of the car and drove away. This conduct was said to constitute the third count of kidnapping.

11 A search of the premises of Gloria Killick where the Appellant had been residing was conducted on 25 March 1999 as part of police inquiries into Killick’s escape. At the flat detectives seized various videos which depicted escapes from prison, a straw hat which resembled one worn by the Appellant during the rescue and pages from brochures that included pictures of a helicopter and Sydney Harbour Bridge.

12 The Appellant and Killick were on the run until they were arrested at about 2.00am on Sunday, 9 May 1999, in Cabin 14 of the Bass Hill Tourist Park. The police found within the cabin two pistols, one a Derringer style and the other a Luger style. The Derringer was cocked and loaded with two bullets. Hats and a wig were also found along with a lady’s handbag containing identification papers bearing the name Dudko. The presence of the two firearms in the cabin gave rise to Counts 4 and 5 on the indictment.

13 The Appellant’s case was primarily directed to the issue of identification. It was the Appellant’s contention at trial that a professional hijacker had been involved in rescuing the prisoner Killick and that her first contact with Killick on 25 March 1999 was when he collected her from a roundabout in Milsons Point. She had been aware of his intention to escape and pursuant to instructions that he had given her had booked a room in a motel for two nights and left Killick’s mobile phone in a park at about 8.00pm on the night before the escape.

14 The Appellant gave evidence that Killick had spoken to her on a number of occasions about escaping, the last time being on 24 March 1999, i.e. the day before the escape. She said that she did not take him seriously. Nevertheless when he asked her on 24 March to undertake the various tasks, she performed them because she had promised to do so. She gave evidence that on the following morning she waited at a roundabout in North Sydney for about thirty to forty minutes as he had requested her to do. However, when Killick arrived driving a motor vehicle with no other passenger, she claimed to have been shocked.

15 After he collected her from the roundabout, they drove to North Sydney train station where they purchased train tickets and she travelled alone back to the motel. At this point she said, she saw her face on television heard the report asserting that she had assisted Killick to escape from the prison. She felt that she could no longer return home because of her implication in the event.

16 The Appellant’s case was that thereafter the two of them were on the run, travelling through various country towns and staying in motels, before arriving in Melbourne. They eventually obtained a lift back to Sydney with a man named John whom the Appellant claimed was the owner of the two guns and of the wig found with the Appellant and Killick at their cabin at Bass Hill.

Ground 1

“The profuse amount of pre-trial publicity with me as the subject matter was so distorted, biased and disparaging that it justifies a conclusion that it created prejudice in the minds of at least some of the jurors, thus causing a miscarriage of justice.”

17 There is no doubt that the requirements of a fair trial are a paramount consideration in the administration of criminal justice. The Appellant relied on a volume of publicity which was supplied to the Court. The publicity was plainly prejudicial in the sense that it proclaimed her guilt in no uncertain terms. On numerous occasions her photograph was published in a context clearly identifying her as the woman in the helicopter. As would be expected, the publicity was most intensive in the immediate wake of the escape itself. However, there was continuing reference in the media which, over time became increasingly sporadic and generally less prominent. It continued as late as December 2000 when Killick was sentenced for the offences associated with his escape, although references to the Appellant were not prominent and by that time often accompanied by terminology such as “alleged accomplice”. Nevertheless she was named in some media reporting in a period proximate to her trial in March 2001.

18 An application was made to the trial judge for a permanent stay of proceedings on the basis of the pre-trial publicity. Her Honour rejected the application. She referred to authorities in the High Court on this matter, particularly Glennon v The Queen (1992) 173 CLR 592 and Murphy v The Queen (1988) 167 CLR 94. Her Honour acknowledged the principle that there may be an exceptional case in which a permanent stay was appropriate. However, she reached the conclusion that, with proper directions to the jury, the Appellant would receive a fair trial. Her Honour rejected the application.

19 Issues of this character have arisen on many occasions in which extensive publicity had been given to particular cases involving clear implications of guilt. Glennon involved a Roman Catholic priest who was convicted of sexual offences against a girl. Murphy involved the Anita Cobby murderers. Other cases include the case of Ivan Milat (see R v Milat, NSWCCA, 26 February 1998 (unreported)), the “Mr Bubbles” child sexual abuse case (see R v VPH, NSWCCA, 4 March 1994 (unreported), the paedophile Phillip Bell (see R v Bell, NSWCCA, 8 October 1998 (unreported)), the child sexual assaults committed by a former member of the Queensland parliament (see R v D’Arcy [2001] QCA 325) and the Childers backpacker fire (see Long v R [2002] QSC 54). None of these cases satisfied the test of exceptionality, despite the intensity of the media publicity involved.

20 The scope and intensity of the publicity in the present case was of a similar order of magnitude to those considered in these cases. The assertions of guilt in the present case were, particularly in the early publicity, perhaps more consistent and forceful than in the other cases to which I have referred. However, those assertions were particularly prominent in the immediate wake of the escape and became more sporadic and less prominent over time. The worst of the publicity occurred almost two years before the trial itself.

21 The authorities to which I have referred establish that even in circumstances of a crime of a high level of notoriety, where it would probably not be possible to select a jury panel who had not heard about the case and indeed who may have a tentative opinion, the trial must still proceed. Jurors who may have formed an opinion are not necessarily biased in the relevant sense. There is now a substantial body of judicial statements of the opinion that jurors accept their responsibility to perform their duties by differentiating between the evidence and what they may have heard before the trial.

22 Her Honour gave clear and forceful directions to the jury in this regard. Inter alia she said:

“No doubt, you may well have a recollection of this matter when it was in the media, either television or newspapers or magazines. Both the Crown and the accused are entitled to receive a fair trial that you will consider therefore this case on the material before you and the material before you alone. You must not bring to consideration in this matter any preconceived views or ideas about the matter from what you may recall hearing or seeing at or around that time of March through to May of 1999 or even later if you [have] any recollection of any other matter touching this particular case appearing in the media. I cannot stress that more strongly than I have. You must not allow any outside influences [to] affect your consideration of the matter because you have sworn to return a verdict in accordance with the evidence and as I say, the evidence will come from witnesses and any other material tendered as exhibits.”

23 In my opinion in the light of these directions, and other observations to similar effect that her Honour made, the Appellant was not denied a fair trial. This ground of appeal should be rejected.

Ground 2

“Her Honour failed to exercise her discretion in a fair and proper manner by choosing not to question juror panels as to media-created bias, thus placing me in jeopardy of being tried by jurors unable to exercise their property duty due to being influenced by impermissible knowledge.”

24 The Appellant referred to other occasions on which a trial judge had interrogated a jury panel concerning their knowledge of the circumstances of the offence. Nothing of that character was sought in the present case. The Appellant was represented by experienced Counsel who made an application for a stay and otherwise made submissions to the trial judge on the subject.

25 In the present case it seemed quite likely that every member of the jury panel would have heard something about the incident. The circumstances of the escape were dramatic and such as to attract maximum media publicity. No application was made for a process to be conducted of the character, the absence of which is now complained of. It would require leave to raise this question. In my view leave should be refused. In any event her Honour, after submissions, made clear and forceful directions and as I have said there is no reason to think that a process of the character for which the Appellant now contends would have had any greater effect. Even if leave were granted this ground of appeal should be rejected.

Ground 3

“The learned judge at trial failed to direct jury as to the elements required to be established beyond reasonable doubt to constitute the offence charged. Therefore the verdict is unsafe and unsatisfactory because on the evidence no reasonable jury could find beyond a reasonable doubt about the appellant rescued the prisoner by force because there is no evidence to support these allegations.”

26 The relevant offence was created by s32 of the Correctional Centres Act 1952:

“32 Any person who, by force, rescues or attempts to rescue from lawful custody any inmate shall be guilty of a felony and shall be liable to penal servitude for a term not exceeding fourteen years.”

27 It is material to compare this provision with s33 which provides:

“33 Any person who:
(a) aids an inmate in escaping or attempting to escape from lawful custody, or
(b) conveys anything or causes anything to be conveyed into a correctional centre or correctional complex or to an inmate with intent to facilitate the escape of an inmate
shall be guilty of a felony and shall be liable to penal servitude for a term not exceeding seven years.”

28 The significance of the reference to “by force” in s32 is found in the maximum penalty of fourteen years, in contrast with the maximum of seven years for aiding escape for which s33 provides.

29 There is no doubt that her Honour directed the jury that it had to be satisfied as an element of the offence that the accused had “forcibly rescued” or “forcibly liberated” Killick. The word “force” is an ordinary English word. It is used in that sense in s32. The Appellant’s complaint that her Honour failed to direct the jury “on the legal meaning of the word ‘force’” should be rejected. No such direction was called for.

30 In the course of the trial the element of “force” was not an issue. The trial concentrated on the question of whether or not the Appellant was the woman. The Appellant referred to cases such as Pemble v The Queen (1971) 124 CLR 107 for the proposition that there are circumstances in which a trial judge must direct a jury with respect to matters, even though Counsel for the accused does not raise the issue and even if counsel refused to do so for good reason. Nevertheless, the directions a trial judge should give must depend on the issues at the trial.

31 The Appellant seeks to contend, under this ground of appeal, that it is a necessary component of the offence under s32 that the “force” to which that section refers must be applied in some way towards an employee or to the property of the prison.

32 There was evidence in the trial that the escapee Killick dissuaded prison officers who were approaching the helicopter by pointing a gun at them and that that gun had been handed to him by the woman in the helicopter. (See transcript 178-183, 184-185 and 191-193) It may very well have been contended that the act of giving the gun to Killick and her continued participation satisfied the requirement of “force” on the part of the Appellant within the meaning of s32, even though she did not point the gun at this point. If this legal issue had been raised at the trial, the Crown could very well have contended that the requirement of “force” on the part of the Appellant was satisfied on the facts.

33 However, the trial was conducted on the basis that the relevant force was that applied to the helicopter pilot. Her Honour said (at p18 of her summing-up):

“There is no doubt that you might think, and which has been proved beyond reasonable doubt, that someone forcibly rescued John Killick from that Correctional Centre. The issue that must be decided by you is, was the accused the person who was in the helicopter holding a gun at the head of the pilot and forcing that pilot to land so Mr Killick could climb aboard and be flown away. Now those are the two elements that must be proved and proved beyond reasonable doubt. As I say it would seem that the only issue for you on that charge is, was that the accused who forcibly rescued Killick.”

34 Section 32 directs attention to a causal relationship between the application of the “force” and either a “rescue” or “attempt to rescue”. Nothing in s32 directs attention to the person or persons to whom the force is to be applied. No doubt, the usual case of a prison escape will involve force applied to prison officers. In this respect the present circumstances were unusual and perhaps unique. The causal relationship between the application of the “force” and the “rescue” was, in the special circumstances of this case, the application of force to the helicopter pilot. It was that force which led to the “rescue”. There was a sufficient causal connection for purposes of s32.

35 In my view this ground of appeal should be rejected.

36 The Appellant made some submissions pursuant to this ground of appeal in the context of the “unsafe and unsatisfactory” submission concerning an issue of double jeopardy between Counts 1 and 2. This is a matter that is also raised in the submissions on sentence and it is convenient to consider it separately at that point.

Ground 4

“Her Honour misdirected the jury in replying to a question regarding in court identification and again later regarding a question from the jury concerning direction of identification, this causing a miscarriage of justice.”

37 The relevant question asked by the jury was:

“… Under what circumstances can a barrister direct attention of the witness to the accused and ask is that the person that you saw?” [Transcript p402]

38 There was a lengthy debate about how this question should be answered. Counsel for the Appellant submitted that telling the jury anything at all in answer to the question would put the accused in a worse position than if the identification evidence had in fact been admitted. Her Honour informed the jury that the rules of evidence and procedure concerning in court identification had been followed in the case and that the jury should not be concerned with what those rules are or to speculate about them. She emphasised that the jury had to have regard to the evidence before them. The reasons advanced by counsel for the Appellant for not answering the jury’s questions were understandable. Nothing in the Appellant’s submissions cause me to have any doubt that it was the appropriate stance and her Honour’s direction was entirely appropriate. The submissions to this Court are based on the possibility of the jury speculating on these matters which is, of course, precisely what her Honour told them not to do.

39 Pursuant to this ground the Appellant also objected to the reply to another jury question which was in the following terms:

“The defence raised in the summing-up that no-one was able to directly identify Dudko as the hijacker or abductor of Bax. Why was no other witness called to give direct identification. Your Honour advised us that this was a matter of law and should not be subject to our speculation, however the defence did specifically raise this point and we would like direction as to how we should regard the defence claim.” [Summing-up p129]

40 With respect to this question counsel for the Appellant submitted that the judge should direct the jury that evidence of identification is only permissible in situations in which the law regards the identification as reliable and fair to the accused. He noted that in the course of the summing-up the trial judge had reminded the jury that there was no identification evidence before them. He asked that the jury be directed to the effect that, there being no identification evidence, their obligation was to reach a verdict looking at the evidence and nothing else.

41 The Crown Prosecutor identified the error which appeared on the face of the jury’s question, namely that “The defence raised … that no-one was able to directly identify Dudko”. The Crown Prosecutor said that that was an interpretation by one or more members of the jury of the submission made by defence counsel. However, that submission was: there had not in fact been any identification evidence. No submission had been made in terms that “no-one was able to directly identify” the Appellant. Further submissions were made by both the prosecution and the defence on the difficulty that had arisen in this respect. The Crown insisted that the answer to the question should correct the mistaken assumption reflected in the questions.

42 During the course of the submissions the following transpired:

“Her Honour: That what Mr Stratton has said is that there was no – well indeed I don’t think Mr Stratton ever said there was no-one able to identify the witness -
Mr Stratton: Your Honour I specifically didn’t say that.
Her Honour: - and identify the accused, I’ll just check and see what exactly the way I have it.
Crown Prosecutor: I’m equally confident with your Honour and my friend that was not said.
Her Honour: Right I’m just looking just to – what I understood to happen was that the – you have not heard a single witness was identified in truth, that was it not able, I don’t think you ever said able.
Mr Stratton: I didn’t say able to, my memory was that there was no evidence of identification and that’s why in the draft which I’ve now reduced to writing and I’ve just handed it to my friend, I’ve attempted to as it were correct that and it may be that the draft which I’ve prepared even would leave it open to the jury to infer that the witnesses might have been able to identify the accused but makes it clear that the law wouldn’t permit it. Could I hand up, it’s produced into writing what I think I’ve already put to your Honour verbally but could I hand up something that I’ve just written out.”

43 This Court does not have before it the document that was handed up. It appears that the first paragraph of the direction proposed by defence counsel was accepted. Then her Honour indicated (at 126 of the summing-up) that she would direct the jury in accordance with that paragraph. The first paragraph of what her Honour actually said in this respect to the jury is the matter now complained of. Her Honour said:

“Ladies and gentlemen, what the defence submission was, was that there was no evidence of identification of the accused in the case. The defence did not say that no-one was able to directly identify the person. The submission was simply that there was no evidence of identification of the accused in this case, and that is correct, because this is a case which has been conducted by the Crown as a circumstantial evidence case.” [at 129 of summing-up]

44 That this was the passage which was handed to her Honour by defence counsel is, in my opinion, confirmed by the reference her Honour made at 126 of the transcript:

“I think I’m going to say, really, that I’m quite happy with that first point that Mr Stratton’s made or say that Mr Stratton was entitled to say that, but this is a case in which it has been run on the basis of circumstantial evidence. I’ve told them that time and time again, it is not an identification case.”

45 Even if I were wrong and counsel for the Appellant had not proposed the very formulation now complained of, this ground of appeal should be dismissed.

46 The Appellant submits that the comment could give rise to speculation in the minds of the jurors to the effect that there were other witnesses or evidence of which they were unaware. Such speculation would have been contrary to the directions her Honour had given on a number of occasions. The passage objected to, namely the statement that “the defence did not say that no-one was able to directly identify the person”, did not involve any element of unfairness by reason of the fact that it was responsive to the incorrect assertion of fact contained in the jury question itself. It was the jury that had asserted: “The defence raised in the summing-up that no-one was able to directly identify Dudko …” and that assertion was wrong. A fair trial includes fairness to the Crown. Her Honour was entitled to point out the error in the question and remind the jury of the actual submission made by the defence.

Ground 5

“The evidence of MRRC telephone records, a photograph of a Luger pistol with butt attached and evidence of Mr Ayad were received in error and should have been excluded.”

47 The evidence of the telephone records tendered by the Crown had two aspects. Both were documents produced from a computer. First, there was an inmate audit trail in which was recorded the names and telephone numbers on a prisoner’s autodial card. The card was issued to inmates who were then required to complete a form nominating up to six numbers to be encoded on the card. Those telephone numbers were allocated codes 1 to 6 respectively on the card. An inmate wishing to contact one of those telephone numbers would enter a booth at the Remand Centre, enter his inmate number and then a PIN to access his autodial card. The destination number was selected by pressing the corresponding code number and the system would then dial the appropriate telephone number. Inmates could not independently dial telephone numbers.

48 In order to change one of the coded numbers, an inmate would complete a form nominating the new names and numbers which were then entered onto the telephone system by an officer of the Remand Centre. The inmate audit trail identified the names and numbers nominated by the inmate and any changes made to the card since the inmate was admitted. The names and numbers were not checked by Centre officials nor was there any verification that, when a certain number was dialled, the person nominated was the one who took the call.

49 The second set of documents was a record generated by computer of the destination numbers and duration of calls made by a particular inmate, Killick, on the autodial system. The cost of calls was charged to inmates.

50 The admissibility of this evidence was challenged by counsel for the Appellant and determined on a voir dire. Counsel’s only objection was to the inclusion of the names supplied by Killick as corresponding to the numbers entered on the system. The Appellant seeks to challenge the admissibility of the whole of this evidence on the basis that it does not meet the exception to the hearsay rule for business records in s69 of the Evidence Act 1995.

51 The documents tendered contain two kinds of evidence. The first kind is direct evidence that certain calls were made by the inmate Killick to certain telephone numbers on certain dates for a specified duration. The evidence is the record in the computer system which monitors the phone calls at the Remand Centre.

52 Section 48(1)(d) of the Evidence Act provides:

“(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
….
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it---tendering a document that was or purports to have been produced by use of the device,”

s48(1)(d) thus permits the tendering of a document produced by a computer as evidence of the contents of the computer record.

53 Section 147 of the Evidence Act provides that evidence of this character, which forms part of the records of a business or is kept for the purposes of a business, is presumed to have been accurately produced by the device which makes the record.

54 The definition of a business is in Clause 1 Part 2 of the Dictionary to the Act and includes:

“(b) an activity engaged in or carried on by the Crown in any of its capacities,”

The MRRC is thus relevantly a “business”, and the records within the Centre computer, created for the purpose of charging inmates for outgoing calls, are records kept and produced for the purposes of that business, so defined.

55 The second kind of evidence is the record of representations made by Killick that when he dialled certain telephone numbers through the autodial system, he was contacting the people nominated as corresponding to those numbers. The records of that information were maintained for the purposes of the “business” of the MRRC.

56 The evidence of that record, produced through a document pursuant to s48(1)(d) as described above, infringes the hearsay rule in s59 of the Evidence Act. Section 69 provides an exception for a document containing a business record in the following terms:

“(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.”

57 The representation in the record adduced by the Crown at trial was that of Killick. It was either a representation made by him, as a person who might reasonably be supposed to have had personal knowledge of the identities of those people who belonged to the numbers which he had nominated for his autodial card. Alternatively, the representation was made by the officer who entered the information into the computer, in reliance on the information directly supplied by Killick who might reasonably be supposed to have had personal knowledge of the names.

58 The Appellant submitted that the evidence was produced in breach of s69(3) of the Evidence Act which provides:

“(3) Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.

59 The proceedings were those in relation to the armed robberies for which Killick had been remanded. The reference in s69(3) is to the making or obtaining of the representation contained in the record. It does not refer to the production of the record for the proceedings in which it is sought to be used as evidence. The record itself was created for the purposes of logging and charging inmates for the telephone calls made on their autodial cards. The representation was thus obtained for that purpose. In my opinion, it was not made in contemplation of any criminal proceedings nor in connection with any investigation, but rather for the administration of the Remand Centre telephone system.

60 The evidence adduced by the Crown formed part of a matrix of circumstances, including evidence that a mobile phone number to which calls were made was in the possession of the Appellant at about the time of the escape. The evidence was relevant and admissible for the purpose of establishing, with other evidence, that Killick made calls to the Appellant before the hijacking, including at 8.51am on the morning of the hijacking.

61 The second matter objected to was a photograph of a Luger pistol. The Crown noted that the trial judge in fact rejected the tender of the photograph. It was merely marked for identification. (See transcript 437-438)

62 The third matter objected to was the evidence of Mr Ayad who was a taxi driver who picked up a man and a woman in Bay Road, Waverton, and drove them to bushland near Mona Vale. He identified the woman in the journey as one whom he had collected on a previous occasion and taken from Strathfield to Bankstown Airport. The Crown said that Mr Ayad’s evidence was called even though it was inconsistent with other evidence for purposes of fairness and completeness. The evidence was given without objection and the Crown correctly submitted this aspect of it did not prejudice the applicant. As will be seen from other grounds of appeal, the element of inconsistency between Mr Ayad’s evidence and some aspects of the Crown case was such that counsel did not, for tactical reasons, object to the evidence even though its probative value for the Crown was slight.

Ground 6

“Her Honour misdirected the jury on the issue of the timing given by Mr Ayad regarding to the alleged rehearsal flight on 8 March 1999.”

63 Mr Ayad’s evidence placed the earlier journey to Bankstown Airport at about the same time as the rehearsal flight which, according to the Crown’s case, had been conducted by the Appellant some two or three weeks before 25 March. However, Mr Ayad agreed in cross-examination with a suggestion that the journey had occurred some two or three months before the 25 March journey.

64 In the course of the summing-up the trial judge summarised Mr Ayad’s evidence in chief. She said that he had picked up that same woman some two or three weeks prior to 25 March from Strathfield station and had taken her to Bankstown Airport. Counsel for the Appellant pointed out that her Honour had not referred to the concession in cross-examination about the incident being two to three months before the time. In her redirection to the jury her Honour set out the precise evidence that Mr Ayad had given in chief and also the precise question and answer in cross-examination. She recited in full that answer of “Yes” to the question that he thought the incident had happened two to three months before.

65 The Appellant submitted that this did not correct the original misdirection. This submission should be rejected. Her Honour directed the jury’s attention to the relevant evidence by quoting it in full. (See summing-up transcript 81) Her Honour correctly indicated at summing-up 81 and 86, that resolving the factual issue of whether the event occurred as stated in the evidence in chief or in accordance with the timing suggested in cross-examination, was a matter for the jury. This ground of appeal should be rejected.

Ground 7

“Her Honour invited the jury to speculate on some important matters of evidence.”

66 Under this ground the Appellant referred to the evidence of Gerard Nicholson, some statements attributed to Killick and references to the second weapon.

67 Mr Nicholson was present at the office of the helicopter company when the female hijacker arrived to take the flight. He gave evidence about the appearance of the woman and the clothes she was wearing. A number of other witnesses had also given such evidence at the trial. Her Honour said in the summing-up (at p41):

“That is the only sighting that Mr Nicholson had of the woman whether that is the same woman that has been described by Mr Lawton, Mr Wieland and Mr Joyce is a matter for you ladies and gentlemen, but he does not see that woman going on to a helicopter and he does not see her with anything in her hands, so that is something for you to consider ladies and gentlemen, but the two other men, Mr Wieland and Mr Lawton, see the woman that they have described get on to the helicopter with Mr Joyce and fly away.”

68 The complaint is made that by the turn of phrase “whether that is the same woman that has been described” by the other witnesses, her Honour introduced a new element into the case. It was submitted that it had never been suggested by the Crown that anyone other than the female hijacker was at the premises. The turn of phrase used by her Honour is not such as to involve any element of speculation of a character which is material to the course of the trial. The thrust of the direction was simply to remind the jury that it was a matter for them to determine what evidence they accepted or rejected and what use they made of the evidence. The jury were told on more than one occasion that the facts were a matter for them.

69 Her Honour had also said in her summing-up (at p93) that the Crown:

“… then referred to the suggestion made by the accused in her evidence that Killick had said in effect ‘Don’t ask about the escape because the people involved were professional, there was a woman involved, albeit she might look a bit like you, she was still involved but don’t ask because she’s a professional person.”

70 The submission was that Killick had never said anything to the effect “she might look a bit like you”. It was submitted that this somehow invited the jury to speculate. The Crown accepted that the turn of phrase “she might look a bit like you” was not used by the Appellant in her evidence. The Crown submitted that this was a minor error of no significance in the context of the trial. The relevant passage of the evidence indicated that it was the Crown Prosecutor in cross-examination who suggested to the Appellant that Killick had said words to the effect that the woman who was involved in the escape was about the same height as the Appellant. The Appellant denied that he had said anything of that character rather that he had said “These people are professionals don’t ask them questions”. This was a minor error of no account in the circumstances of the trial.

71 The third matter raised under this head was the assertion that her Honour misdirected the jury on the issue of the second weapon produced by the female hijacker. One of the weapons found in cabin 14 of the caravan park, where Killick and the Appellant were arrested, was a Luger pistol. The Crown case was that the Luger was the same weapon used by the female hijacker. There was evidence that one of the weapons used by the hijacker was a pistol but there was various evidence about the second weapon. It would appear it was a larger weapon which needed to be assembled in some manner. The complaint is that on a number of occasions during the course of her Honour’s summing-up she refers to the existence of two “pistols” in the helicopter. There are such references at 20.6, 33.10-34.3 and 66.2-66.4 and 67.9. Reading the summing-up as a whole it is clear and, in my opinion, would have been clear to the jury, that her Honour’s various references to “guns”, “pistols” and “weapons” were not intended to be precise.

72 In the context of summarising to the jury the evidence of the helicopter pilot her Honour referred to the second weapon as “the other pistol” at 67.9 and went on to say (at 68):

“He said that the passenger then pulled out another larger weapon. He believed it was folded and clasped in two, but she very quickly assembled it and pointed it at him. He said that he was struck by how quickly she had done it. It obviously been well rehearsed and had come out in two pieces from one of the bags, in two pieces all folded and then clipped together very very quickly … He believed it was a much larger automatic weapon and he said that she reached into the bag and pulled out a large curved ammunition container and put that into place and kept on pointing at him and you will recall that she handed that gun over to Killick when he got into the helicopter.”

73 She went on to say that the helicopter pilot had “said it was definitely a rifle rather than a pistol” and gave a further description of the second weapon.

74 In this, and in other passages, her Honour summarises the evidence given about the nature of the weapon. It is correct that on some occasions she refers to “two pistols”. However, considering the evidence as a whole her Honour does leave the issue of the identification of the weapon to the jury in a manner which would not have confused the jury when making any pertinent findings about whether or not the second weapon used in the hijack was in fact the Luger pistol found in the cabin. The relevant evidence was properly summarised with an occasional reference which may have suggested some common identity between the two weapons, by reason of describing them both as “pistols”, but would not in the context of the summing-up as a whole have misled the jury in any material respect.

75 The Appellant submitted that the trial judge had impermissibly removed a matter from the jury when she said:

“But in any event on that 9 May, she was in possession of that particular gun in the way in which I have directed.”

76 In the previous sentence, her Honour had been concerned with what “the Crown says here”. The sentence objected to was a reference to the Crown case. The reference to what her Honour had “directed” was a reference to her earlier directions on the meaning of possession.

77 This ground should also be rejected.

Ground 8

“The jury’s verdict cannot be supported having regard to the evidence.”

78 In this regard the Appellant relied on variations in the evidence of the various witnesses describing the female hijacker. It is true that there were such variations. Indeed such variations are to be expected. In a case in which persons who have only a fleeting glimpse of an individual are required to recall many months later aspects of that person’s appearance, accent and dress, it would be the absence of variation that would arouse suspicion. The differences were not such as to suggest anything out of the ordinary. These were quintessentially jury issues which were properly left to the jury. The divergences were identified in the course of her Honour’s summing-up. None of the matters raised in this respect are of a character which would suggest that the jury was not entitled to conclude that the Appellant was the female hijacker.

79 The Appellant also relied on the evidence of Mr Ayad the taxi driver who suggested he picked up a male and female and drove them to Terry Hills at about 9.00am that morning. The Crown accepted that the helicopter flight hadn’t started until 9.39am. Again it is never the case that all witnesses are entirely consistent as to matters such as time. Nothing in the nature of the difference would suggest that the Appellant suffered any prejudice from the calling of this evidence. Whether or not the taxi driver was mistaken about the time of the journey was properly a matter for the jury. The Crown correctly felt obliged to call this evidence notwithstanding the inconsistency with the Crown case in this and other respects.

80 The Appellant also referred to a brochure which included a photograph of a helicopter that was found on a refrigerator at the home of Mrs Killick, the escapee’s estranged wife with whom the Appellant was staying at the time. The evidence was not irrelevant. Its prejudicial value was slight. It is not a matter that supports the particular ground of appeal, namely that the jury’s verdict cannot be supported.

81 The Appellant also referred to evidence of a mobile phone call on 25 March. This was a call made by Killick to his own mobile phone, which the Appellant admitted she had been in possession of. Her evidence that she had delivered it to a park and left it there could be and was rejected by the jury. The use to which the occurrence of the call was to be put by the jury was very much a matter for them. This matter does not support this ground.

82 The final matter referred to was a discussion about the nature of the second weapon produced by the female hijacker and whether or not it could have been the Luger pistol found in cabin 14 of the caravan park. There was evidence consistent with the proposition that the Luger pistol may not have been the second weapon produced by the hijacker. That evidence was properly left to the jury. There was a basis for inferring that the Luger was the weapon used by the hijacker albeit with a butt stock attached to it. That would have been the nature of the assembly that occurred and gave the helicopter pilot the appearance of a rifle. The evidence in this regard was properly left to the jury.

83 Considering each of the matters referred to above together, even accepting them at the full force for which the Appellant contended in her submissions, the cumulative effect is not such as to cast any doubt on the jury’s verdict or to suggest a miscarriage of justice. The evidence against the Appellant was very strong and her explanation of her own conduct in making arrangements for Killick’s escape, which she did not actually believe was going to occur, beggars belief. The particular matters to which she directed attention on this ground are trivial in comparison with the strength of the Crown case against her.

Ground 9

“Her Honour erred in her summing-up in that after graphically outlining the Crown’s circumstantial case she failed to adequately put the defence case which provided a rational hypothesis other than the accused’s guilt and would have entitled the jury that the presumption of innocence had not been displaced.”

84 The trial judge instructed the jury correctly both in respect to a circumstantial case and no complaint is made in that regard. Her Honour specifically directed the jury that it had to be satisfied that the finding of guilt was the only reasonable finding it could make and that there was no other reasonable explanation consistent with innocence. The Appellant relies on various matters, such as inconsistencies amongst the witnesses and her own assertions, and submits that there must have been a reasonable explanation. These matters were all properly left to the jury to assess.

85 The trial judge dealt with the Appellant’s case in relation to each of the circumstances upon which the Crown relied and outlined in some detail, the submissions of the Crown and of the Appellant’s counsel. In my opinion the trial judge put the Appellant’s case to the jury in a fair and balanced way. There were inconsistencies amongst the witnesses on issues relating to identification. Her Honour did indicate the nature of those inconsistencies in the course of the summing-up. The Appellant’s submissions in this respect consisted of no more than a recitation of the defence case on the various aspects of the circumstances on which the Crown relied. In the context of the submissions made by counsel on her behalf and by the trial judge in the summing-up, the case was properly left to the jury.

Ground 10

“By refusing the application of Mr Stratton re no prima facie case in relation to Counts 4 and 5 her Honour was in error.”

86 Counts 4 and 5 related to possession of the weapons at the time of the arrest. Counsel for the Appellant had submitted that in the absence of evidence from Mr Killick it could not be established beyond reasonable doubt that the Appellant had exclusive possession of the guns.

87 In this regard the Appellant relied in her submissions on the discrepancies with respect to the identity of the weapon between the evidence of the helicopter pilot and other evidence. This appears to me to be entirely irrelevant. The two counts of unauthorised possession of the pistol were said to have been committed on 9 May 1999. The issue of the identity of the guns found on that occasion with those used in the course of the hijackers was relevant for the purposes of the Crown case that the Appellant was the hijacker. This ground of appeal appears to me to be misconceived.

Ground 10.1

“The learned judge at trial failed to direct the jury as to the elements required to be established beyond reasonable doubt to constitute the offences of possession of a Derringer style pistol and a Luger pistol I was charged with. On the evidence no reasonable jury could find beyond a reasonable doubt that the Appellant was in the possession of these pistols. Therefore the verdicts on Counts 4 and 5 are unsafe and unsatisfactory.”

88 Pursuant to this ground the Appellant submitted that the judge failed to direct the jury as to the elements of the offence; that there was no evidence that she “knew about the pistols” and that she had not been asked and, finally, that Killick was not called to give evidence on the issue of weapon possession.

89 As one would expect the trial judge did direct the jury on the elements involved in all of the offences. She gave directions to the effect that the elements were that the Crown had to prove that the accused possessed the firearm and that she was not authorised to do so by licence or permit. No request was made for any further directions in this regard.

90 The other matters raised under this ground were briefly put. It was submitted that there was no evidence of knowledge of the existence of the pistols and that Killick was not called. As her Honour indicated it was not necessary to call Killick in this regard. He was plainly a witness that the Crown was entitled not to call. The whole of the evidence before the jury served as a proper basis for an inference that the Appellant knew of the existence of the pistols on the premises that she was occupying together with Killick at the time that the pistols were found. The evidence pointing to her as the hijacker, which the jury plainly accepted, reinforced the conclusion with respect to possession of the pistols, albeit more clearly in the case of Count 4 relating to the Derringer pistol, about which there was no issue as to identification. In my view this ground should be rejected.

Ground 11

“Her Honour misdirected the jury on circumstantial identification evidence because:
1 She did not give the jury a direction on the danger of convicting on such evidence.
2 She did not mention whether the witness had previously known the person described; how good an opportunity the witness had to get a clear picture of the person described and what were the circumstances and nature of that description.
3 She did not draw attention of the jury to numerous discrepancies between evidence of witnesses who were a sign of unreliability of the evidence.
4 She failed to give specific warnings about features of the evidence of some witnesses.
5 She failed to point out the discrepancies between evidence of description and the appearance of the accused.”

91 In this regard the Appellant relied on both s116 and s165 of the Evidence Act 1995. The former refers to identification evidence and the latter refers to evidence of a kind that may be unreliable, specifically, identification evidence in s165(1)(b).

92 Section 165 is only applicable if a request has been made. There is no suggestion that there was any such request in the present case. Section 116 relates to identification evidence, a term which is defined in the dictionary in terms of, relevantly, “an assertion by a person to the effect that a defendant was or resembles (visually or otherwise) a person …”. These submissions on the part of the Appellant proceed on the misconception that the evidence to which he refers was “identification evidence” in this sense.

93 None of the witnesses to whose evidence she refers in this respect purport to assert that the Appellant was the person. The various descriptions given of the female hijacker were tendered as circumstantial evidence. They were not identification evidence. The trial judge correctly left the entire body of evidence of these witnesses, in the various ways in which they described the female hijacker to the jury. The particular warnings and emphases said to be required in a summing-up, for the which the Appellant contended under this ground of appeal, were not required. Her Honour did draw the jury’s attention to aspects of the evidence, including the discrepancies between different versions, in a manner which was of assistance to the jury. She was not obliged to go further and warn the jury with respect to such evidence.

Ground 12

“Non-disclosure of the material which had been in the possession of the police at the time of my trial was prejudicial to the presentation of my defence at trial and amounted to an abuse of the process, therefore the miscarriage of justice occurred.”

94 In this respect the Appellant relied on an assertion that there had been a record of interview with another prisoner who was in the gaol at the time of Killick’s escape. The Crown informs the Court that there is no such record of interview. There is no evidence of it. This ground of appeal should be dismissed.

Ground 13

“Here Honour should have directed the jury to disregard Mr Ayad’s evidence after the total evidence was given, as being unreliable, irrelevant, inconsistent, misleading and, in parts, not possible.”

95 There were difficulties with Mr Ayad’s evidence. Some of them have been referred to under other grounds of appeal discussed above. They were not, however, such as to require a direction of the character for which the Appellant now contends. The Appellant was represented by experienced trial counsel. No such application was made. The Appellant requires leave to raise this issue. In my opinion leave should be rejected. Even if leave were granted I would reject this ground of appeal. The inconsistencies involved in Mr Ayad’s evidence could very well have been regarded by trial counsel as advantageous to the Appellant.

Ground 14

“In view of the conduct of the trial taken as a whole, a decision of the Prosecutor not to call Mr Killick as a witness gave rise to a substantial miscarriage of justice, therefore the verdicts on all five counts were unsafe and unsatisfactory.”

96 Killick was a co-offender in all five offences with which the applicant was charged and convicted at trial. He had been charged and sentenced for the offences relating to the escape and to possession of the firearms on 21 December 2000. Killick had a lengthy criminal record and was serving a sentence at the time of his escape.

97 Obviously Killick could have given evidence about every pertinent matter in the trial. There will be circumstances in which the failure to call a witness will be found to give rise to a miscarriage of justice. (See eg Queen v Apostilides (1984) 154 CLR 363.) This is not such a case.

98 It would not be often that the Crown must call a co-offender, even one who had pleaded guilty and been sentenced for the offences. Killick was so obviously a biased and unreliable witness with respect to the involvement of the Appellant that there was no obligation on the Crown to call him.

Ground 15

“The verdicts on all five counts are unsafe and unsatisfactory.”

99 The Appellant makes her submissions in this regard on a count by count basis. She repeats with respect to each count each of the relevant matters already considered above. Under the subheadings Grounds 1 to 14 I have rejected each of those grounds. Accordingly, neither taken alone, nor cumulatively, could they establish a basis for a conclusion that the jury’s verdict was unsafe and unsatisfactory with respect to any counts.

Double Punishment

100 As I have noted above, in the context of Ground 3, the Appellant relied on what she referred to as “double jeopardy” with respect to Counts 1 and 2. She did this in the context of submitting on Count 1 that:

“The verdict is unsafe and unsatisfactory because of the evidence no reasonable jury could find beyond reasonable doubt that the appellant rescued the prisoner by force because there is no evidence to support these allegations.”

101 She submitted that there were two limbs to this argument. The first I have already rejected, namely, that the force had to be applied towards an employee or property of the prison. However, what she described as the second limb was as follows:

“… if the charge Rescue prisoner by force is to stay then it brings double jeopardy because according to the evidence the only force which was applied during the actual escape was the force towards helicopter pilot and I already was charged with assault of the member of aircraft crew.”

102 She stated that the essential part of the offence under Count 1, namely the element of “force”, was the actual element of the other charge, namely assaulting the member of an aircraft crew.

103 This is an issue that has also arisen in the context of the submissions made by counsel who appeared for the Appellant on the sentence appeal. Counsel submitted that there was error when the sentencing judge imposed concurrent identical sentences on Counts 1 and 2, on the basis that the two offences contained common element. Relying on Pearce v The Queen (1998) 194 CLR 610 esp at pars [42] and [43]-[49] Mr S G Odgers SC submitted:

“Approached as a matter of common sense … a single act was an element of both offences. The wholly concurrent and identical terms of imprisonment imposed indicate that the applicant was doubly punished for the one act and the sentences were accordingly flawed.”

104 The case was conducted, as I have noted above, on the basis that the element of “force” was the same as the conduct that constituted the “assault”. To repeat, in her summing-up to the jury the trial judge said, with respect to Count 1:

“The issue that must be decided by you is, was the accused the person who was in the helicopter holding a gun at the head of the pilot and forcing that pilot to land so that Mr Killick could climb aboard and be flown away.”

105 With respect to Count 2 the trial judge directed the jury on the meaning of an assault and said that it extended beyond striking or touching to a threat of striking or touching her Honour said at summing-up 19:

“In this case I can tell you ladies and gentlemen that the pointing of a pistol at a person would be, at law, regarded as an assault and that is what was alleged here that the person in the helicopter pointed a gun at the head of the pilot and if you found that a gun was pointed at the head of the pilot, that would amount in law to an assault.”

106 I have set out above the provisions of s32 of the Correctional Centres Act 1952. In s32, “force” is a mechanism by which the ultimate injury to the public interest is committed, i.e. the “rescue” of an inmate. In s206 of the Crimes Act the assault is an act committed which has a particular consequence, i.e. the interference with the functions or duties in connection with the safe operation of an aircraft.

107 The Crown submitted that by reason of the different effects the Appellant’s acts ought to be regarded as separate offences, despite their common element. In its submissions on sentence the Crown noted that, although there was a common element of using a firearm to threaten the pilot this occurred at different points of time. With respect to Count 2, the threat caused the pilot to deviate from his planned route and land the aircraft within Silverwater Gaol. With respect to Count 1 the threat caused the pilot to take off and fly the applicant and Killick out of the gaol. This is not the way the Crown case was put at trial as indicated in the passages of the summing-up I have set out above. It appears that the way the case was left to the jury was on the basis that the “force” of the Appellant for purposes of the s32 offence was applied prior to landing. It was not the Crown case that it was the Appellant who was holding a gun to the head of the pilot forcing him to take off.

108 In Pearce, supra, the High Court dealt both with the issue of double conviction and double punishment. That case involved two charges under s33 and s110 of the Crimes Act which, respectively, applied to the malicious infliction of grievous bodily harm and breaking and entering a dwelling house and, while therein, inflicting grievous bodily harm. As can be seen the gravamen of both these offences is the same, i.e. the infliction of grievous bodily harm. Accordingly in Pearce it was held that the single act founded both convictions. As Gleeson CJ put it in Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 at 509:

“… the conviction for conspiracy is not a legal bar to the conviction for the substantive offences; the gist or gravamen of the crime of conspiracy is the agreement.”

109 So here the gist or gravamen of the offence under s32 of the Correctional Centres Act is the rescue, whereas the gist or gravamen of the offence under s206 of the Crimes Act is the diversion of a pilot from his functions and duties, i.e. the hijack. That the element of force in one and the element of assault in the other was, apparently, said to be constituted by the same conduct, does not detract from the proposition that there were two quite distinct offences. In my opinion, there was no double conviction or double punishment.

Appeal on Sentence

110 The submissions on sentence raised three distinct issues: double punishment, parity and manifestly excessive sentence.

111 As noted above, counsel for the Appellant relied on Pearce on the issue of double punishment. Counsel referred to par [42] and referred to the single act, i.e. the infliction of grievous bodily harm as “an element of each of the offences under s33 and s110”. In Pearce, as in the present case, the trial judge sentenced the Appellant to identical terms of imprisonment on the two counts and made those sentences wholly concurrent. Their Honours said at [43]:

“We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.”

112 The Court went on to consider the question of whether or not that matter was of concern by reason of the fact that the sentences were made wholly concurrent. The Court said that focusing only on the total effective sentence may “mask error” [45]. A sentencing judge is required to fix appropriate sentences for each offence and then consider questions of cumulation or concurrence, as well as totality. Their Honours concluded at [49]:

“Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the affliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrently may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.”

113 As I have indicated above, the gravamen of the two offences in this case was quite distinct. Although both offences carried maximum penalties of 14 years, in one case the focus was on a rescue by force and in the other case, on a hijack by threat. Even though the force and the threat was constituted by the same act, it cannot be concluded in this case, unlike Pearce, that the Appellant has been “doubly punished for a single act”. In Pearce, the single act was the infliction of grievous bodily harm. That was much more than simply an element of the offence, it was the gist or gravamen of the criminal behaviour. In the present case the gist or gravamen of the criminal behaviour was not the same in the two offences. In my opinion it is not correct to say that there was a double punishment on the facts of this case.

114 In any event it is not apparent to me that even if there was a double punishment that this could lead, subject to the Appellant’s other submissions, to a reconsideration which would result in any alteration to the sentence on either count. Nothing in her Honour’s remarks on sentence suggest that her Honour failed to assess the matters separately when determining the respective sentences for each of the offences. Her Honour made all of the sentences concurrent including those which occurred much later, i.e. the firearms offences. Considerations of totality were clearly of significance in this regard. There were two distinct, albeit interrelated, significant offences that stood out for their gravity, i.e. Counts 1 and 2. It was appropriate for her Honour to impose the longer sentences for those offences and, in view of their length, and considerations of totality, to make the sentences entirely concurrent.

115 Issues of parity arose in this case by reason of the fact that Killick was also sentenced for similar offences. This was a matter that her Honour considered. In the course of her remarks on sentence she noted that Killick was sentenced at the same time on the two counts of armed robbery and the count of discharging a firearm, which were the matters upon which he had been remanded in custody for sentence at the time of his escape. She noted that with respect to those matters the sentencing judge had imposed a head sentence of thirteen years with a non-parole period of seven years to date from 9 March 1999.

116 Her Honour then turned to the four charges for which Killick was sentenced that overlapped with the matters involving the Appellant that were before her Honour. The sentences imposed on Killick with respect to these charges were cumulative on the earlier charges. Her Honour noted that for the offence of escape from lawful custody his Honour imposed a head sentence of five years with a non-parole period of two and a half years; with respect to the hijacking charge, his Honour imposed a head sentence of seven years with a non-parole period of three and a half years cumulatively upon the escape charge; on the charge of detaining a person for advantage his Honour imposed a sentence of three years with a two year non-parole period, in her Honour’s words, “again to be cumulative upon the previous two charges”. Her Honour then noted that the sentence for the larceny of a motor vehicle charge was to be served concurrently. The two possession of firearms offences were not the subject of separate charges in Killick’s case but were taken into account on a Form 1. Her Honour then drew the following conclusion:

“Accordingly, in respect of the charges on the indictment which related to the offences which were committed with the Offender, his Honour imposed a total sentence of fifteen years with a non-parole period of eight years.”

117 All the sentences, except the sentence for larceny of a motor vehicle, were to be served cumulatively upon each other and cumulatively upon the sentence imposed on the armed robbery matters.

118 The Appellant notes that her Honour’s reference to “a total sentence of fifteen years” for the overlapping offences was in error. That is so. It is easy to see how the error occurred. Her Honour had referred to the respective sentences as being five years, seven years and three years and had added them up. It was submitted that the total effective sentence imposed was nine and a half years and her Honour was wrong in that respect. The error appears to have been that her Honour calculated the sentences cumulatively upon each head sentence, rather than each head sentence being cumulative upon the previous non-parole period. Her Honour was correct to compute the non-parole period as eight years.

119 Killick appealed (see R v Killick [2002] NSWCCA 1) with respect to all of the sentences, including for the earlier armed robbery. On appeal this Court restructured the sentences in such a way that, by reason of a different interconnection between the armed robbery offences and the four offences that are relevant for present purposes, the total head sentences for the current four sentences, it was submitted, became fourteen years, i.e. only one year less than her Honour had erroneously referred to in her remarks on sentence.

120 The relevant sentences were retained at the same length, as had originally been imposed but their dates were varied, albeit without effect on the relevant non-parole period. In the event the relevant comparison is between a head sentence of ten years with a non-parole period of seven years, in the case of the Appellant, and a head sentence of fourteen years with a non-parole period of eight years, in the case of Killick.

121 There are matters which make the assessment of parity considerations complex. The sentencing structure for Killick raised many considerations which make any direct comparison difficult.

122 For present purposes I find it pertinent to treat the sentences imposed on Killick for the charges of assault and escape together and make a comparison with the two concurrent long sentences imposed on the Appellant in the present case. If they had been the only two charges upon which Killick had been sentenced then, on the assumption that the assault charge commenced at the expiration of the non-parole period for the escape charge, Killick would have had a total sentence of eight years and six months with a non-parole period of six years. This is a pertinent comparison with the sentence imposed on the Appellant, namely a head sentence of ten years and non-parole period of seven years. Killick had a lower sentence, but only marginally so. If the equivalent charge for Count 3 is included then Killick, in whose case that sentence was cumulative, had an effective non-parole period of eight years, compared to the Appellant’s seven years.

123 Of particular significance for the sentencing of Killick was the principle of totality. That principle requires the Court to take into account not only the multiple offences which overlap between the case of Killick and the Appellant. The Court in Killick also had to take into account the principle of totality with respect to the sentences Killick was serving and the sentences for the armed robbery offences for which Killick was sentenced at the same time. The principle of totality would suggest that the sentences for the parallel offences imposed on Killick were lower than they otherwise would have been.

124 The Appellant acknowledged that as Killick had pleaded guilty this was a material consideration in the sentencing exercise in his case. Furthermore, with respect to Count 1 the Appellant conceded that the charge carried a maximum of fourteen years compared to ten years for the equivalent charge in the case of Killick. Nevertheless it was submitted that this did not justify the end result in which the head sentence was double that imposed on Killick. Similarly, with respect to the charges that did coincide. For Count 2, the head sentence was ten years compared to seven years and the non-parole period at seven years was double that imposed on Killick. In the case of Count 3, the head sentence imposed on the Appellant was a five year fixed term, compared to three years with a two years non-parole period imposed on Killick.

125 There were elements on parity for which the Appellant was entitled to favourable consideration. Her good character must be compared to Killick’s long record. Her prospects of rehabilitation were better.

126 The Appellant placed great reliance on what it submitted was the “inescapable” conclusion that Killick was the dominant figure in the criminal enterprise. Counsel submitted that the Appellant in this case was motivated by her love for Killick and that she committed the offences at a time of emotional vulnerability and under the influence of Killick who was described as “a persuasive and dangerous man”.

127 Her Honour made no findings of fact that the Appellant was as weak and submissive as the submissions on her behalf suggest. The planning involved in the escape may very well have been devised to a significant degree by Killick. However, its execution required a degree of care, attention to detail and boldness which does not suggest a weak woman hopelessly besotted by a domineering male. The two counts which carry the longest sentences both involved the threat of physical violence with a firearm. The level of criminality was of a high order.

128 Counsel for the Appellant submitted that the effective total sentence imposed was manifestly excessive. Her Honour did not regard the circumstances as constituting an offence in the worst category. The head sentence she imposed of ten years was significantly below the maximum sentence of fourteen years. However, it was a substantial sentence reflecting in the case of each of Counts 1 and 2 the level of violence implicit in the threat against the helicopter pilot. For the reasons her Honour gave, the offences were very serious. Her Honour was entitled to regard them as being in the higher range of seriousness. The sentences she imposed were, in my opinion, within the range of a reasonable exercise of discretion. This Court should not interfere.

129 The appeal should be dismissed.

130 SIMPSON J: I agree with the Chief Justice.

131 BLANCH AJ: I agree with the orders proposed by Spigelman CJ.

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