R v Grant - [2006] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GRANT
[2006] SASC 221
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
27 July 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
Appellant convicted by jury verdict of two counts of armed robbery and one count of using motor vehicle without consent - appellant appealed on grounds that the trial judge misdirected the jury as to the burden of proof, failed to adequately put the defence case to the jury and that the trial judge erred in not discharging the jury - appeal against conviction dismissed - appellant further sought leave to appeal on the ground that the verdict of the jury was unsafe - leave not granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Trial Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - appellant sentenced to a head sentence of seven years and nine months with a non-parole period of five years - appeal on ground that the head sentence and non-parole period were manifestly excessive - consideration of sentencing principles - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 s 86A, s 158, referred to.
Shepherd v The Queen (1990) 170 CLR 573; M v The Queen (1994) 181 CLR 487; R v Place (2002) 81 SASR 395; R v Lumsden [2000] SASC 49; Dinsdale v The Queen (2000) 202 CLR 321; Markarian v The Queen (2005) 215 ALR 213, considered.

R v GRANT
[2006] SASC 221
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: I have had the opportunity to consider the reasons prepared by Gray J and the reasons prepared by Vanstone J.
I would dismiss the appeal against conviction. As Gray J and Vanstone J have reached different conclusions on the appeal, it is appropriate that I indicate my reasons for agreeing with Gray J. It is unnecessary for me to summarise the case or the issues that arise, or the arguments advanced on appeal.
I deal first with the complaint about the Judge’s directions to the jury relating to the burden of proof. It suffices to focus attention on the two passages from the summing up that are identified by both Gray J and Vanstone J in the course of their reasons.
I share the reservation expressed by Vanstone J about the manner in which the Judge expressed himself in the first of those passages. It would have been safer to refer to a reasonable explanation of the evidence consistent with innocence that had not been convincingly excluded, rather than to an inference which established a reasonable doubt.
However, having regard to other occasions on which the Judge directed the jury clearly, firmly and correctly that the prosecution must prove beyond reasonable doubt that guilt was the only inference reasonably open, I am satisfied that there is no risk that the jury was mistaken as to the approach that it should take.
The second passage about which particular complaint was made refers to the explanation that Mr Grant gave to the police when they questioned him. Again, I agree with Vanstone J that the manner in which the Judge expressed himself was undesirable. He should have directed the jury in the manner that Vanstone J suggests. But I do not agree that the blemish in the direction raises a risk that the jury misunderstood the law or its task. In his reasons Gray J sets out the passage that precedes this part of the directions. It contains an appropriate direction about the use to be made of the circumstantial evidence. The passage of which complaint is made is followed by a further appropriate reminder. The Judge told the jury that it was not enough if they thought Mr Grant was probably guilty, or if they suspected that he might be guilty, or if they did not know either way. The Judge said:
In any of those circumstances, you must acquit. It is only if you are satisfied, beyond reasonable doubt, of his guilt that you may convict him.
For those reasons, while the manner in which the Judge expressed himself was unfortunate, I am satisfied that the jury would have understood that they could convict Mr Grant only if they were satisfied beyond reasonable doubt that his explanation should be rejected.
I add that neither counsel raised any objection to this part of the summing up at the time of delivery. That is not decisive, but it suggests that having regard to its context, the passage of which complaint is made would not have been understood as detracting from the accurate directions as to the duty of the jury.
I turn to the complaint that the defence was not put adequately.
Gray J has dealt with the manner in which the Judge directed the jury in relation to particular items of evidence. There is no nothing that I wish to add to what he has to say on that topic.
I again agree with Vanstone J that it would have been better if, as she puts it, the Judge had “encapsulated the defence case” and had “put the main defence arguments to the jury”.
But, having read the summing up several times, I am satisfied that it was not unbalanced or unfair, and that it adequately presented the issues to the jury. The trial was not a long one. The issues were reasonably clear, although the final decision as to the inferences to be drawn from the circumstantial evidence was not an easy one. The explanation that Mr Grant offered to the police was relatively straight forward. It was that he had sold the Sigma to Mr Rigney on the day before the robbery, leaving in it some of his belongings. The suggestion was that somehow or other they were transferred to the van used to carry out the robbery. In the course of dealing with the items of circumstantial evidence the Judge referred more than once to the sale of the car to Mr Rigney, and to the possibility of Mr Grant having left property in the car. Both counsel had spent some time in their final addresses on the explanation that Mr Grant offered. The jury could not have failed to understand the defence case, and how it related to the prosecution case.
For those reasons, I am satisfied that, taken as a whole, the summing up was adequate for the purpose.
It is for those reasons that I would dismiss the appeal against conviction.
I agree with Gray J that the appeal against sentence should be dismissed. There is nothing that I wish to add to his reasons.
GRAY J
The appellant, James Axczel Grant was convicted by jury verdict, following a trial in the District Court, of two counts of armed robbery[1] and one count of using a motor vehicle without consent.[2] The one sentence for all offending was imposed. The appellant was sentenced to imprisonment for 7 years and 9 months. A non-parole period of 5 years was fixed.
[1] Contrary to section 158 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 86A of the Criminal Law Consolidation Act.
The primary issue on this appeal is the adequacy of directions as to the onus of proof. It was further complained that the Judge failed to adequately summarise the defence case to the jury. It was contended that in these circumstances, the verdicts were unsafe and should be set aside. A discrete issue as to the refusal to discharge the jury also arises.
The issue at trial was whether the appellant was involved in the armed robbery. As the trial Judge observed in the course of his summing up:
Both counsel have approached this case on the basis that it is really about identity; about the question of whether this particular accused, Mr Grant, was involved in the robbery at the Highbury Pasta House that night or not, whether it has been proved beyond reasonable doubt that he was involved.
The Crown Case
The Crown case was that on Saturday 20 July 2002, a red Toyota Tarago van was taken without the owner’s permission from Gouger Street, Adelaide.
On the same evening, Anita Caperna and her husband, Italo Caperna, were closing their restaurant at Highbury. At about 10.30pm, Mrs Caperna left the restaurant with her purse intending to purchase cigarettes. Mrs Caperna observed a red van parked near the front of the restaurant. She then saw the side door of the van open and two men get out of the vehicle. The men walked toward Mrs Caperna, pointed a gun at her and took the purse from her hand. The gunman told Mrs Caperna to return to the restaurant. The two men followed Mrs Caperna into the restaurant. The man with the firearm walked behind the restaurant counter, asked Mr Caperna where the money was kept and struck Mr Caperna in his side with the gun. The gunman removed money from the till, took Mrs Caperna’s handbag and left the restaurant.
Approximately 30 minutes later, police received information that a red van had been located in a street behind the restaurant. The police attended and inspected the vehicle. They observed a pair of scissors in the ignition. Inside the vehicle they located a beanie; a piece of cloth; a set of keys and a sports bag that contained a machete, martial arts sticks or knives and a cigarette butt. The items did not belong to the owner of the vehicle. An inspection of the sports bag revealed a payslip bearing the name of the appellant. Police observed that the number plates of the van had been altered by what appeared to be a black texta marker. It was the Crown case that the beanie, the keys and the sports bag and contents belonged to the appellant.
The police attended at the appellant’s residence shortly after. A search of the residence disclosed a black fleece jacket that was identified by Mrs Caperna as being similar to one that was worn by the gunman. The set of keys located in the vehicle opened the front door of the appellant’s residence and fitted the ignition of a vehicle parked in the driveway. A black texta marker pen was located in a rubbish bin.
The police submitted a number of the items to the Forensic Science Centre for DNA analysis. A DNA sample taken from the beanie matched the profile of the appellant. The sample from the scissors matched the profile of a Vincent Rigney. The appellant was excluded as a contributor of the DNA on the cigarette butt and the DNA results for the machete and martial arts sticks were inconclusive. A sample from the black jacket matched the profile of a Kym Keley. Mr Keley shared a residence with the appellant.
There was circumstantial evidence led at trial from Mr and Mrs Caperna that was in a general way capable of identifying the appellant as one of the offenders, however it was not the prosecution case that the descriptions given were capable, on their own, of identifying the appellant. There were broad similarities between the description of the perpetrator given by Mr and Mrs Caperna and the appellant. However, an inference can be drawn from their evidence that their opportunity to observe the offenders was limited. The police did not conduct an identification parade.
Police interviewed the appellant on 22 July 2002. A record of the interview was tendered by the prosecution and was read to the jury. During the interview, the appellant gave an unclear explanation as to why his items were located in the vehicle used in the armed robbery. The following can be deduced from the record of interview.
-The appellant claimed that he had decided to sell his motor vehicle, a Sigma, as he was about to be disqualified from holding a driver’s licence. The appellant advertised the Sigma by word of mouth. The appellant informed police that on Friday, 19 July 2002, a man called “Rigden” or “Rigley” came to view the Sigma. He wished to purchase the vehicle and paid $200 to the appellant. However the appellant would not allow the vehicle to be taken, as there was a further $200 to be paid.
-At this time, the appellant realised that he was missing his keys. The appellant went to Blair Athol Auto Parts initially on other business and then again to enquire whether he had left his keys at the Auto Parts store. The appellant stated that at this stage he was almost positive that he had left the keys in the Sigma.
-Several hours later, presumably in the afternoon, the purchaser of the Sigma came back and paid a further $50 or $80. The appellant however did not release the vehicle into the purchaser’s possession. The purchaser returned at approximately 4-4:30 to pick up the Sigma. It is unclear whether the appellant allowed the purchaser to take the vehicle whilst money was still owed or whether an alternative arrangement was made. It was most likely at this time that the registration papers were filled out with respect to the transfer. The appellant did not at any time check the Sigma for his keys.
-The appellant claimed that the sports bag had been previously used as a workbag and was left in the boot of the Sigma. He claimed that he had previously confiscated the martial arts sticks or knives from his son and had placed them in the sports bag. The boot could not be easily opened as the boot had been seriously damaged when the vehicle had been stolen on a prior occasion. Essentially, it was the appellant’s account that he left the sports bag and contents, including the keys, in the Sigma when he sold it to the purchaser.
The manager of Blair Athol Auto Parts gave evidence that he had no recollection of the appellant or any member of the public asking about lost keys between 18 July and 20 July 2002. However, this may not be surprising, as the police did not approach the manager until five months after the alleged offence. The Judge raised this issue with the jury in his summing up:
You heard the evidence of [the manager] who said that he did not remember seeing the [appellant] there. [Defence counsel’s] criticisms of the police investigation in that regard are quite valid. [The manager] was not asked about this until more than five months later. If the [appellant] did go to Blair Athol Auto Parts it is not surprising that [the manager] might not have remembered him.
[Defence counsel] argued that if the police had been on the job they could have proved his client’s innocence if [the manager] had been asked sooner and been able to remember [the appellant] going to his shop. It is a matter for you to evaluate that submission as to whether, in the circumstances, it might have been a piece of evidence which favoured the [appellant] and pointed towards his innocence.
Nonetheless, on the Crown case there were important and telling inconsistencies in the account proffered by the appellant. He claimed that the sale of the vehicle had taken place on Friday, 19 July 2002, the day before the robbery. However the registration transfer papers that he signed were dated 16 July 2002. He claimed to have enquired about missing keys at the auto wreckers but he also stated that he thought he had left the keys in the Sigma. However, the appellant made no attempt to search or check the Sigma prior to selling the vehicle to the purchaser.
Counsel for the Crown submitted that the possible explanation that the purchaser of the vehicle removed the sports bag and keys and placed them in the vehicle used in the robbery was inherently unlikely. Furthermore, an explanation was never provided, either to the police or at trial, as to why a beanie that in all probability had been worn by the appellant was in the vehicle used in the armed robbery.
On 23 July 2002, police located Vincent Rigney and another man asleep inside the Sigma. In the vehicle, police discovered a wallet containing registration papers with the transfer of ownership slip completed, purporting to transfer the vehicle from the appellant to Mr Rigney. The transfer slip was dated 16 July 2002. A set of jumper cables was also located inside the vehicle. The owner of the vehicle used in the armed robbery identified the cables as belonging to him. No property of the appellant was found in the Sigma.
The Crown case was based on circumstantial evidence. The Judge summarised this position to the jury:
The prosecution case is based upon circumstantial evidence. You have heard [the prosecutor] say that he considers that the Crown has proved [the appellant’s] guilt on the basis of that evidence and [defence counsel] argues that it is not strong enough to convict the accused of any of the counts on the information.
The Judge explained the concept of circumstantial evidence and continued:
The process of reasoning you must go through when considering circumstantial evidence is like this: firstly, you must decide what facts you accept as being established by the evidence. Having done so, you must then consider what inferences you are prepared to draw from those facts. Even a fact which, when taken alone, is not sufficient for you to draw an inference, you do not necessarily discard that fact, put it to one side and ignore it because of that. You must keep that fact in mind and consider it in conjunction with all of the other facts you have heard and found to be established, and then have regard to the whole or the totality of the evidence and the united force of all those facts put together. So, the proper approach is to assess the combined effect of all the items of circumstantial evidence which you accept, and then consider whether, as a matter of inference, they prove beyond reasonable doubt that the accused committed the offence or not.
As previously mentioned, the issue at trial was identification and whether the Crown had established beyond reasonable doubt that the appellant committed the offences.
There were a number of items of circumstantial evidence that could lead to the conviction of the appellant. Property of the appellant was found in the vehicle used in the robbery, including keys that opened the front door of the appellant’s residence and a motor vehicle in his driveway; a beanie containing DNA that matched the profile of the appellant and the appellant’s sports bag containing other property of the appellant, including his payslip. The description of the offender given by Mrs Caperna was also consistent with the appearance of the appellant.
Defence Case
The appellant elected not to give evidence.
On the defence case, the reasonable hypothesis open on the evidence was that Mr Rigney had committed the offences and removed the appellant’s items from the Sigma and left them in the stolen vehicle. This was said to be a hypothesis consistent with innocence that the Crown had not excluded.
Counsel for defence, in his closing address, summarised the defence position to the jury as follows:
The prosecutor mentioned…that, if there is an explanation consistent with innocence, then it is your duty to acquit the accused – not just this man, any accused – and that is the rationale of any jury. If there is a reasonable explanation consistent with innocence, then the accused must be acquitted; this man, [the appellant], must be acquitted if there is a reasonable explanation. The question of whether or not there is a reasonable explanation is entirely up to you.
[The appellant] has provided to you his reasonable explanation, and, in fact, he said, at the very beginning, to police – and I won’t quote exactly – ‘All this can be explained’, and I suggest, ladies and gentlemen, all this has been explained.
Issues on appeal

As earlier observed, the issues on appeal related to the adequacy of the summing up.
Burden of Proof
The Judge gave conventional directions with respect to the burden of proof. The Judge informed the jury that it was for the Crown to prove the guilt of the appellant beyond reasonable doubt; and that it was not for the appellant to prove his innocence. The Judge repeated these directions during the course of the summing up:
The presumption of innocence has been mentioned several times. I will mention it as well because it is the cornerstone of our criminal justice system. The principle is that every person is presumed to be innocent unless and until his guilt has been proved by the Crown beyond reasonable doubt. Nothing short of that is sufficient.
The accused need not prove anything, he need not explain or prove what he did. You must evaluate whether the evidence against him is sufficient to prove his guilt beyond reasonable doubt.
The Judge went on to direct the jury that they must be satisfied beyond reasonable doubt that it was the appellant who committed each of the three separate offences. They had to be so satisfied on each charge. The Judge then continued:
It is entirely [the appellant’s] choice as to whether he gives evidence in court and is cross-examined or not. No inference should be drawn, either adverse or otherwise, against the accused by virtue of having exercised that choice…
[I]f you find that there are gaps or matters about which you are uncertain in the prosecution case, the decision by the accused not to give evidence should in no way be seen as plugging any of those gaps or resolving any of those uncertainties. If you are not satisfied beyond reasonable doubt, on the basis of the Crown case, of [the appellant’s] guilt, then his decision not to give evidence takes the matter no further, it does not help you in any way in forming any further conclusion. He need say nothing; he is under no obligation to explain or prove anything in these proceedings.
Counsel for the defence submitted that there were two passages in the summing up that misdirected the jury as to the burden of proof. As will become clear later, it is necessary to refer to these passages in the context of the surrounding statements. During the summing up, the Judge directed the jury:
[W]hen considering circumstantial evidence, you must not forget the fact that, as I said earlier, the onus always remains on the Crown to prove its case beyond reasonable doubt. You must consider, when thinking about circumstantial evidence, whether an inference of guilt is the only reasonable inference which is open. If there are other inferences which are consistent with innocence and you consider them reasonable, then the Crown would not have proved its case beyond reasonable doubt and the accused is entitled to be acquitted. So you must be convinced that the only rational inference to be drawn from the circumstances before you is that the accused is guilty of the offences charged before you may convict. If there are other inferences which are consistent with his innocence – and you have heard [defence counsel] proffer a number of such inferences – if they establish a reasonable doubt in your mind, then you must acquit him.
(emphasis added)
The Judge continued:
So, having gone through that process of establishing what facts have been established to your satisfaction, the next issue is what inferences should be drawn from those facts when you put them altogether. What strength does the rope have after all the facts that you are satisfied have been proved are put together? Is the only reasonable inference open to you, when considering those facts as a whole, one of guilt? If you are satisfied beyond reasonable doubt that that is the only reasonable inference open, then you should convict the accused. However, if you have a reasonable doubt about that inference, if there are other inferences which reasonably arise from those facts and which are consistent with innocence, then you must acquit.
You have heard [defence counsel’s] submissions to you and the interview the accused gave to the police. Do the explanations offered constitute inferences which reasonably arise from the evidence before you and, if so, do they give rise to a reasonable doubt about his guilt? If so, then you must acquit him.
(emphasis added)
It was counsel’s submission that the Judge shifted the burden of proof to the defence by asking the jury whether the explanations offered by the appellant “establish” or “give rise” to a reasonable doubt. The Judge, in defence counsel’s submission, failed to direct the jury in clear terms that if there was a reasonable hypothesis consistent with innocence, they must acquit.
This submission should be rejected. When read in isolation, the challenged paragraphs of the summing up simply pointed out that if the defence submissions and explanations proffered and the inferences that were said to arise were accepted, then there must be an acquittal because a reasonable doubt arose. This is unexceptional and followed from the defence submissions. However, as the Judge explained repeatedly, the onus of proof beyond a reasonable doubt remained on the Crown at all times and the Crown had the obligation to exclude beyond reasonable doubt any reasonable hypothesis that may have existed that was consistent with innocence.
In this way, it can be seen that the impugned directions could not be the subject of any valid complaint.
Further, the impugned directions did not stand in isolation. In each instance they formed part of lengthier parts of the summing up that addressed the onus of proof. The Judge was explicit in directing the jury that the Crown bore the onus of proof.
Counsel for defence further contended that the Judge misdirected the jury by using the word “inferences” in the impugned directions, which in counsel’s submission gave rise to the implication that the jury must accept each and every one of the explanations of the appellant as giving rise to a reasonable doubt before they could acquit. This submission should be rejected. The reference to “inferences” does not carry any such meaning.
In Shepherd v The Queen,[3] Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, discussed the burden of proof in a case based on circumstantial evidence and observed:[4]
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances…Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick C.J., speaking for the Court, observed in Grant v The Queen:
Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.
Similarly, in McGreevy v Director of Public Prosecutions, the House of Lords refused to lay down a rule that any special direction should be given in relation to the use of circumstantial evidence.
It is against these general propositions that the Judge’s summing up should be considered.
[3] Shepherd v The Queen (1990) 170 CLR 573.
[4] Shepherd v The Queen (1990) 170 CLR 573 at 578 (footnotes omitted).
When the summing up is considered in its entirety, I am satisfied that the jury would not have been misled into thinking that the accused carried any onus of proof or was under any obligation to prove anything. At the outset, the jury had been told of the Crown’s obligations with respect to the onus of proof in clear and conventional terms. Throughout the summing up, and after the impugned passages, the jury were further directed in similar terms. In particular, the Judge, in the sections in which the impugned statements appear, directed the jury correctly with respect to the onus of proof. During the summing up, the trial Judge specifically directed the jury that the accused “need not prove anything”. The defence counsel submission that there was a misdirection in regard to the onus of proof is without substance.
Failure to adequately put the defence case
Defence counsel submitted that the summing up of the Judge lacked fairness and balance. Counsel argued that the Judge erred when summarising the following items of evidence by effectively taking away from the jury’s consideration matters that the jury were entitled to take into account.
Counsel contended that the Judge failed to adequately summarise the evidence relating to the jumper leads. The Judge summarised the evidence as follows:
The fact that [the] jumper leads [belonging to the owner of the van] were found in the car that Mr Rigney had possession of may suggest that Mr Rigney was involved in the robbery. You may consider that suggestion.
[Defence counsel] was highly critical of the fact the police did not inspect the jumper leads for DNA. It is true that they did not. You may wonder, however, what the outcome of the test for DNA would have proved. They may have had Mr Rigney’s DNA on the jumper leads, but that may not be surprising since he had the Sigma in which the jumper leads were found. They probably had [the owner of the van’s] DNA on them, since he owned the jumper leads before the car was stolen. They may or may not have had the [appellant’s] DNA on them. None of those outcomes would have exonerated the [appellant], so really although the failure to test for DNA on the jumper leads means that we do not have any more evidence, it does not point away from the [appellant] or towards him, it is really a bit of a non-event.
…It is entirely a matter for you, but you may think that the jumper leads in the Sigma are really not an item of evidence which implicate the [appellant].
Counsel said that the Judge failed to adequately put the defence case by stating that the lack of DNA testing on the jumper leads was a “non-event”. Counsel contended that this was a matter that should have been left for the jury’s consideration.
In relation to the scissors found in the ignition of the stolen vehicle, the trial Judge directed the jury:
[The scissors] is another item of evidence that suggests that Mr Rigney was involved in the robbery. However, again, it does not exonerate or implicate the [appellant] either way. Mrs Caperna did not suggest that the man with the gun, the shorter of the two robbers, had been driving a van. You may think that this evidence suggests that Mr Rigney may have been driving the van, his DNA is on the scissors which were used to start the car, so, so far as the [appellant] is concerned, the scissors do not advance the case against him either.
Counsel submitted that the Judge misdirected the jury by stating that Mr Rigney’s DNA on the scissors did not exonerate or implicate the accused either way.
Defence counsel further submitted that the Judge misstated the evidence to the jury. It was said that Mrs Caperna gave no evidence as to the identity of the driver. Accordingly, in counsel’s submission, these were items of circumstantial evidence that were capable of assisting the accused insofar as it was consistent with the appellant’s account given in the interview with police.
In the course of his summing up, with respect to the beanie, the trial Judge commented:
You will remember…the area of the beanie where the DNA of the [appellant] was found, in the general nose and mouth area below the eyeholes. This proves, as [defence counsel] conceded, that the [appellant] wore the beanie at one stage, it does not say when; how recently. It is quite true that Mrs Caperna did not identify the beanie as having been worn by one of the robbers that night. It is a matter for you to consider [the Crown’s] submission that perhaps in the stress of the situation she may be mistaken about that, but, on the other hand, you may find that does not matter either way. The fact is that the beanie, which had been worn at some point by the [appellant], was found in the Tarago which was used in the robbery. The question to ask yourselves is, is there an explanation for it being there which is consistent with innocence? There is really no evidence as to how it got there. In the record of interview…the beanie was not mentioned. There is no explanation before you as to how it came to be in the Tarago after the robbery. It was not in the sports bag, it was lying on the seat separately from the sports bag.
Counsel said that the Judge erred by not reminding the jury that Mrs Caperna’s evidence was that she did not think that the beanie was the one worn by one of the robbers. Consequently, in counsel’s submission evidence concerning the beanie may have carried more weight with the jury than was warranted.
The Judge summarised to the jury the evidence with respect to the sports bag as follows:
[Defence counsel] was critical of the fact that the police did not examine [the sports bag] for DNA. Again, you might wonder what the results of such an analysis might have proved. [The appellant] admitted in the record of interview that he had such a bag. He said it was in the Sigma, in the boot, he used it to carry things to work, it therefore may well have had [the appellant’s] DNA on it, it would not be surprising if it did. [Defence counsel] also argued that if it also had Mr Rigney’s DNA on it it would have exonerated his client; it is a matter for you as to whether that follows as a matter of logic. It may have proved that Mr Rigney touched the sports bag at some time after he bought the Sigma, it may also prove that Rigney was also involved in the robbery, or may have tended in that direction, at least, but you may wonder how that would necessarily have exonerated the accused. So it may be that the issue of the DNA on the sports bag does not really take the matter much further.
Counsel said that the Judge failed to adequately put to the jury the defence case that if the sports bag had been tested for DNA and DNA was found to have matched Mr Rigney, it would have been consistent with the explanation of the appellant.
Finally, counsel contended that the Judge failed to adequately summarise the defence case about the registration papers located in the Sigma. The Judge summarised that evidence as follows:
The registration papers were found in the wallet, which was found between the driver’s seat and the console of the Sigma and you can see the papers for yourselves…They are dated 16 July, not 20 July when [the appellant] said he sold the vehicle. It is true, as [defence counsel] points out, there is no handwriting evidence to show who wrote the date on the form. So, that is not evidence against [the appellant], unless it can be shown that he wrote that form and that has not been shown here.
Counsel contended that whilst the Judge directed the jury that the registration papers were not evidence against the appellant, in counsel’s submission, the Judge failed to direct the jury that it was evidence in support of the appellant’s explanation to the police that he provided a registration paper to Mr Rigney for the sale of the Sigma.
The essential complaint of defence counsel was that the Judge failed to adequately point out that each of the items of evidence discussed above had provided support to the explanations given to police by the appellant.
Throughout the summing up, the Judge reminded the jury of the essential features of the defence case. The summing up must be read in its entirety. When that is done it can be seen that the Judge fully and fairly outlined the defence case to the jury. The defence case was straightforward on all issues. At the end of the summing up there cannot have been any doubt that the jury would have understood the defence case and the evidence that was before them.
There was no inadequacy or error of fact in the Judge’s discussion of these items of evidence. The Judge did not withdraw the items of evidence from the jury’s consideration. During the course of the summing up, the Judge reminded the jury that questions of fact were matters for their consideration and their decision alone:
Ladies and gentlemen, it is now my duty to sum up to you. In doing so, I will attempt to address two distinct purposes: firstly to give you directions as to the law which applies to these charges and to the way in which you must use the evidence which has been adduced. As counsel have said, you must accept what I say about the law. I will also sum up the evidence to you. I will do so in the hope that it assists you in your task; however, I agree with what counsel have said earlier about the fact that you, as the jury, are the sole judges of the facts of this case. So, all of the matters I will mention to you about the facts are entirely matters for you. I will not canvass every piece of evidence that you have heard since the trial commenced; I am sure you will be relieved to hear that. I am sure the facts are reasonably fresh in all of our memories.
You have heard what [the prosecutor] and [defence counsel] have said to you in their addresses and I am sure you will take into account what they have told you. If I do not mention a fact, you need not think that you must ignore it. If you think a fact is significant, you are quite entitled to give it whatever importance you think is appropriate. So, just because I have not mentioned it does not mean to say that you cannot think it is significant or important. Again, if I mention something and you feel it is unimportant, well, that is entirely up to you.
There is no substance to these complaints.
Unsafe verdicts
Defence counsel sought leave to appeal to argue that the verdict of the jury was unsafe. The submission addressed each of the grounds earlier discussed and drew on their suggested cumulative effect. That effect was said to render the verdict unsafe.
In M v The Queen,[5] Mason CJ, Deane, Dawson and Toohey JJ formulated the following test to be applied when determining whether to set aside a jury verdict:[6]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[5] M v The Queen (1994) 181 CLR 487.
[6] M v The Queen (1994) 181 CLR 487 at 493 (footnotes omitted).

It was open to the jury in the present case to be satisfied beyond reasonable doubt that the appellant was guilty of each of the charges. The summing up of the judge adequately addressed the Crown and defence cases, adequately summarised the evidence and provided appropriate directions.
Having regard to the rejection of the appellant’s complaints with respect to each of the grounds advanced, it follows that there is no basis upon which it could be concluded that the verdict of the jury was unsafe. To the contrary, the verdict was supported and justified by the evidence before the jury.
Refusal to discharge the jury
Counsel for the defence submitted that the Judge erred by not discharging the jury when the Crown led evidence of needle packaging located in a rubbish bin at the house of the appellant.
During the course of evidence, a police officer was asked by the prosecution to look at a photograph showing the contents of the appellant’s bin. Following a number of questions relating to the contents of the bin, the following question and answer were given:
[Prosecutor ] What is the item on top of the packet of cigarettes.
[Police Officer] The item on top of that appears to be packaging for – I would say a needle.
Counsel for the defence immediately made an application for the jury to be discharged on the basis that the reference to needle packaging inferred that the appellant was involved in the use of intravenous drugs. Counsel submitted this was a direct attack on the appellant’s character.
The prosecutor informed the Judge that he asked the question because he believed the “ultra-fine” wording on the package indicated that it was a texta marker package. Counsel further informed the Judge that the prosecution would not invite the jury, through any address, to infer that because there was a needle package in the bin it followed that it belonged to the appellant or that it provided him with a motive to commit the offence.
The Judge refused the application to discharge the jury. As the Judge correctly observed to both counsel, the mere reference to a needle packet does not infer that the appellant was intravenously injecting illegal drugs. There are a number of legitimate purposes for people using needles.
The Judge’s decision to not discharge the jury was appropriate. The evidence was raised in the context of the prosecution leading evidence regarding the texta marker found in the appellant’s bin. No further questions were asked regarding the needle packaging. The prosecutor did not at any time ask the jury to infer that the appellant was involved in the use of intravenous drugs. I do not consider that this evidence caused any prejudice to the appellant.
Appeal against sentence
On 2 March 2006, the Judge sentenced the appellant. A head sentence of seven years and nine months was imposed. A non-parole period of five years was fixed. The appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months. The Judge ordered the forfeiture of the weapon seized by the police.
The maximum penalty for these offences is, in the case of armed robbery, life imprisonment, in the case of using a motor vehicle without consent, two years imprisonment and a minimum of 12 months disqualification from holding or obtaining a driver’s licence. In the case of driving whilst disqualified, the maximum penalty was six months imprisonment.
When sentencing, the Judge remarked:
These are particularly serious crimes. They are aggravated by the fact that you were armed with a deadly weapon, you perpetrated actual violence during the course of the robbery. The robbery was clearly preplanned and there was an element of professionalism in its execution. There were three perpetrators involved of whom you are the only one to have faced court. There is no sign of contrition or acknowledgement of the crime. There has been no cooperation with the authorities, there has been no plea of guilty to earn some discount on your sentence.
...
Mr Grant, having regard to all of those matters it seems to me there is nothing in your background or other circumstances of sufficient weight to displace the fundamental principle that deterrence of this sort of violent crime and the protection of the public are of particular importance in sentencing. These are prevalent crimes, difficult to detect, they severely traumatise their victims, who are usually vulnerable, operating small businesses late at night as Mr and Mrs Caperna were. In my opinion as the range of armed robbery goes this is a serious example of such an offence and exhibits a degree of professionalism in its execution which is concerning.
The Judge summarised the appellant’s antecedents:
[Defence counsel] has urged me to take account of your background when considering sentence. You were born in July 1948 which means you are now 57 years of age. The psychological report of Dr Jack White describes your upbringing and it must be observed that you had a difficult time as a young person. I note in particular Dr White’s comments about the violence you suffered as a child, your brother’s death, the fact that you were sentenced to death for murder in 1971, the sentence later being overturned on appeal and eventually pleading guilty to manslaughter, the time you spent in Pentridge prison and other incidents involving your personal relationships. Dr White concluded that you were likely to satisfy the relevant diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood and chronic post-traumatic stress disorder. He is unable to comment about whether your psychological profile had any relevance to your current offending since you denied your involvement to him. It is difficult to see how it could have played a part in an offence such as this in any event. I also take into account your general state of health. You had a very serious back injury in 1991 which resulted in extensive surgical treatment. You suffered two heart attacks in 1991 and strokes in 2002. You do not have significant disabilities now as a result of these conditions.
The Judge proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act1988 (SA) to impose the one penalty. He concluded his remarks as follows:
In all the circumstances I consider the appropriate sentence for the offences to be eight years imprisonment. I should take into account that you spent a month in custody in 2002 and four months on home detention bail after that. Taking those two periods into account I reduce the head sentence by three months to seven years and nine months. You have been in custody since the jury’s verdict on 21 December 2005 and so the sentence should commence from that date.
The convictions constituted a breach of a bond that the appellant had previously entered into on 13 June 2002 for the offence of driving whilst disqualified from holding a licence pursuant to section 91(5) of the Motor Vehicles Act 1959 (SA).
The Judge sentenced the appellant with respect to the breach:
In my opinion the appropriate sentence is one month imprisonment, however, in view of the disproportion between that offence and the offences of armed robbery for which I have just sentenced you, I see little point in ordering that sentence to be cumulative. I order that that sentence commence on 21 December 2005 as well along with the other sentences I have just imposed.
The appellant had a long history of criminal offending. He had been convicted of manslaughter and sentenced to 10 years imprisonment in the 1970s. Following his release from gaol, he had no contact of note with the criminal justice system until the late 1990s, when he was convicted of assault occasioning actual bodily harm. A sentence of imprisonment of 15 months was imposed.
The appellant complained that both the head sentence and non-parole period were manifestly excessive. Defence counsel submitted that the appropriate sentence in respect of armed robbery was of the order of 6 to 8 years and that in the present case the sentencing Judge commenced with a notional sentence of eight years. Counsel contended that in all the circumstances it was inappropriate for the Judge to have started at such a lengthy notional term. Finally, defence counsel submitted that the non-parole period was set at too great a proportion of the head sentence having regard in particular to the appellant’s age of 57 years.
Counsel for the Crown accepted that a sentence of six to eight years is the expected range for the offences of the type that the appellant had committed. However, it was pointed out that the standard was not inflexible and that the sentence in any particular case would be determined by the individual circumstances of the case. It was pointed out that general deterrence and the maintaining of appropriate sentencing standards are of particular importance when imposing sentences for crimes of armed robbery.[7]
[7] R v Place (2002) 81 SASR 395; R v Lumsden [2000] SASC 49.
Four matters aggravated the appellant’s offending: the preparation for the offence, including the theft of the vehicle used in the offending; the fact that the offence was committed in the company of at least one other offender; the use of the firearm and the violence directed towards one of the victims.
The appellant has shown no indication of contrition or remorse. The appellant does not present with good prospects for rehabilitation. His previous sentences have included suspended sentence bonds and his treatment by the courts in the past did not lead to sufficient personal deterrence to deter the present offending.
No error of sentencing principle was identified. It was not suggested that the sentencing Judge had regard to any irrelevant material or failed to have regard to relevant material. No basis to interfere with the sentence imposed has been made out.[8]
[8] Markarian v The Queen (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321.
Conclusion
The appeal against conviction and sentence should be dismissed.
VANSTONE J:
Introduction
The appellant was convicted by majority verdicts of two counts of armed robbery and using a motor vehicle without consent. The robbery victims were the proprietors of a restaurant at Highbury. On 20 July 2002 they were robbed at gunpoint, the female proprietor outside the restaurant and the male proprietor within it. They were robbed by two men, who travelled in a stolen red Tarago van, driven by a third. The men were disguised and the victims provided only general descriptions of their builds and clothing.
The evidence
The mainstay of the prosecution case was the finding in the robbery van of a sports bag and a number of other items of personal property of the appellant. There were three other items of evidence which could be viewed as giving some support to the prosecution case. One was the very general description of the robbers by the victims, one of which could be compatible with the appellant. Another was the finding of a used Texta pen and associated packaging in the rubbish bin of the appellant’s house, which could have been related to a police observation to the effect that the robbery van’s number plate had been altered by turning a C into an O and a 3 into an 8.
The third was the evidence of a Mr Keley. He shared a house with the appellant. His evidence had some odd features. He admitted to long-standing psychiatric problems. A jacket found at the appellant’s and Mr Keley’s home had Mr Keley’s DNA on it. That jacket was described by the female victim as “similar” to one worn in the robbery. Mr Keley claimed not to have seen that jacket before being shown it by police.
Mr Keley gave evidence that at about a quarter to six on the evening of the robbery he returned home briefly to see the appellant and two or three other men “just leaving in a Tarago van”. In cross-examination Mr Keley clarified that he did not see the appellant do more than walk towards the Tarago shortly before it left, and that he did not know whether the appellant left in it or not. He said it was coloured two-tone in maroon and silver. He said he had not seen it before, although a Tarago van of a “maroonish/red colour” had been parked in the street outside the house in the five or six weeks prior to that day. He identified photographs of the robbery van as being the van which had been in the street over that period. That could not have been correct since the owner of the robbery van gave undisputed evidence that his van had been taken not earlier than just after midday on the day of the robbery. Ultimately the Judge warned the jury that “it would be unsafe to place any reliance really on Mr Keley’s evidence, particularly about the Tarago”.
Apart from a question as to the reliability of Mr Keley’s evidence and room for argument about the alteration to the number plate, the facts on which the prosecution case was based were not disputed.
One of the items of personal property within the robbery van was a pay slip bearing the appellant’s name. That led police to the appellant. When spoken to by police, the appellant said he was not involved in the robbery. The appellant gave an explanation for how items of his personal property might have ended up in the robbery van. Looking at it from his viewpoint, he could speak of his own knowledge, or at least belief, as to how these items had left his possession and as to who acquired possession of them. He said that he had recently sold his Sigma motor vehicle to one Rigney. He said that after some negotiations he had finally handed over the Sigma on Friday, 19 July, when Rigney and another had attended at his home, late in the day (in a van) to pick it up. He further said he must have mistakenly left the items in the boot.
As to how the items could end up in the robbery van, he could only theorise. But certain aspects of both the events he knew of, and also the defence theory, were confirmed on the prosecution case. First there was the confirmation of the fact that he sold the Sigma to Rigney. Two days after the robbery Rigney and another man were found in the Sigma and a completed transfer document was found within that vehicle. Then, as the next step, there was the finding of Rigney’s DNA on the scissors used to start the robbery van. This was compelling evidence that Rigney was one of the robbers. If so, then Rigney, rather than the appellant, could have been responsible for transferring the appellant’s belongings from the Sigma to the van.
It was for the jury to say whether that explanation for the presence of the appellant’s items in the robbery van was a rational one consistent with innocence.
The complaints upon the appeal are principally as to directions on the onus of proof and an asserted failure to adequately put the defence case.
Directions as to onus of proof
The summing up was appropriately concise. The Judge delivered the more formal directions initially. There were clear and accurate general directions about the onus and standard of proof. He then turned to the law. In outlining the elements of the offences he told the jury that the issue was one of identity, being whether the appellant was one of the men who robbed the female victim outside the restaurant and who entered the restaurant and robbed the male proprietor.
The Judge directed the jury as to the accused’s silence in court not being used against him and no complaint about that direction is made.
The Judge told the jury that the allegations made in the prosecution case had not been “rebutted, contradicted or explained on oath”. He noted that defence counsel had told the jury in the address what the appellant said in the interview and that the videotape of it would be in the jury room should they wish to listen to it again. He said:
… it is a matter for you to weigh up what weight you give to what Mr Grant said to police in the interview.
He pointed out it was not evidence on oath and had not been subjected to cross-examination.
The Judge then gave directions on circumstantial evidence. In the course of these, he told the jury that it must first decide what facts it accepted as being established and then consider the inferences which could be drawn from those facts. He said it was the united force of the facts which might prove an offence. He referred to the example of a rope; it being the stronger the more strands it contained.
The Judge then gave one of the two directions about which particular complaint is made. He said:
So, you must be convinced that the only rational inference to be drawn from the circumstances before you is that the accused is guilty of the offences charged before you may convict. If there are other inferences which are consistent with his innocence – and you have heard Mr Vadasz proffer a number of such inferences – if they establish a reasonable doubt in your mind, then you must acquit him.
The Judge continued. He said he would then concentrate on the items of circumstantial evidence in turn, again likening them to strands in a rope. In going through the various items, the Judge incorporated not only items which were connected to the appellant, but also other items found in the van. For example, he mentioned jumper leads taken from the robbery van and left in the Sigma. As he proceeded to deal with each item found, he often dealt with defence counsel’s submissions as to it, and often to put an opposing view.
Having completed that summary, the Judge then said:
You have heard [defence counsel’s] submissions to you and the interview the accused gave to the police. Do the explanations offered constitute inferences which reasonably arise from the evidence before you and, if so, do they give rise to a reasonable doubt about his guilt? If so, then you must acquit him.
The Judge went on to tell the jury that only if satisfied beyond reasonable doubt of the appellant’s guilt could it convict him. That brought to an end the Judge’s charge.
It is the second passage quoted from the summing up which causes me more concern. The first passage seems to me to put the question for the jury’s consideration in a rather inapposite manner and ill-advisedly introduces the word “establish” in respect of reasonable doubt. However, having regard to the other, correct, directions within which it was located, it was probably benign.
However the second direction seems to clearly misstate the task for the jury. I do not think it was helpful to speak of the appellant’s explanations as potentially constituting inferences. They were not inferences, but rather assertions as to the way in which his property had left his possession. Nor was it correct to speak of the possibility of the explanations giving rise to a reasonable doubt. The question for the jury was whether it was prepared to infer guilt beyond reasonable doubt from the circumstances, despite the accused’s explanation for his property being in the van. Another way of putting the question was: In all the circumstances is the innocent explanation for the accused’s items being in the van a rational one? The jury should have been told that only if they rejected his explanation and any other explanations consistent with innocence could they infer guilt. An accurate presentation of the legal issues in the case necessitated this question being squarely posed.
Duty to put the defence case
I turn then to the complaint that the Judge failed to put the defence case adequately. I draw the following principles from R v LaveryNo 2 (1979) 20 SASR 430, 444-446 per Wells J; R v Von Einem (1985) 38 SASR 207, 216 per King CJ; 38 SASR 207 R v Perks (1986) 43 SASR 112, 115-117 per King CJ; R v Whittingham (1988) 49 SASR 67, 69-70 per King CJ; Reg v Veverka (1978) 1 NSWLR 478, 480-482 per Street CJ; Domican v The Queen (1992) 173 CLR 555, 560-1.
The extent of the duty upon a trial judge to put the defence case can be described in general terms. However the obligations cast will vary from case to case depending on the length and complexity of the legal issues, the way in which the issues have been crystallised both during the evidence and in counsel’s addresses and the structure of the summing up. In principle the trial judge must fairly and impartially put the defence so that the jury is fully apprised of the challenge mounted to the prosecution case, both in the course of the evidence and argument.

That duty will involve stating the substance of the defence case and explaining its bearing on the legal issues. Generally speaking, fulfilment of these requirements would lead the judge to refer to the crucial parts of the evidence of the accused (if any) or to his explanation given in interview or otherwise. In many cases the encapsulation of the defence case would be found in an identifiable part of the summing up. But in other cases, particularly long and complex matters, it may be preferable to deal with both prosecution and defence cases on an issue by issue basis.
However, a judge is not obliged to read, or to refer in detail to, evidence called by the defence and is not obliged to repeat all the arguments of defence counsel.
If the judge desires to make his or her own observations as to aspects of the defence, that should be done in a separate part of the directions.
The summing up under consideration contained no distinct portion in which the defence case was summarised. The trial judge did not choose to summarise the appellant’s interview with police, even though in some respects in its videotape version it was disjointed and hard to follow. He contented himself with a reference to defence counsel’s summary of it. Nor did the Judge choose to bring together the main arguments advanced by defence counsel in his address. Indeed, such reference as he did make to some of those arguments was, almost invariably, to counter them. No doubt there was some justification in some of the observations the Judge made about some of defence counsel’s points. A trial judge should be prepared to correct excesses or unwarranted propositions developed in the course of an address: Glusheski v The Queen (1986) 33 A Crim R 193, 195 per Street CJ; McCarthy & Ryan v The Queen (1993) 71 A Crim R 395 per Hunt CJ at CL at 407. However, in terms of the summing up under consideration, this meant that almost all the references made by the judge to the defence and the arguments in favour of it were negative.
It might be said that this was a straight-forward case and that the issues for the jury were clear. However, cases concerning inferences to be drawn from possession of items invariably have their complexities. That makes it all the more important that the jury be given an overview of the defence case, and indeed of the prosecution case. I think in this case the judge should have encapsulated the defence case by summarising the interview and that he should also have put the main defence arguments to the jury. For instance, he should have put that there was clear support for the sale of the Sigma to Rigney and for Rigney’s involvement in the robbery. Then he should have pointed out that Mr Keley had acknowledged that the appellant might not have left in the Tarago van on the day of the robbery and that what Mr Keley might have seen was the end of the handover of the Sigma.
Conclusion
In my mind the combined effect of this failure and the errors referred to earlier relating to directions on the onus of proof leaves a real doubt that the appellant’s defence was properly considered. For these reasons I would allow the appeal against conviction and order a re-trial.
Recognising that this is a minority view, I indicate that, for the reasons given by Gray J, I do not consider that the sentence imposed by the Judge is manifestly excessive.