R v Inamata

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Waldo Inamata [2003] NSWCCA 19

FILE NUMBER(S):
60222/02

HEARING DATE(S): 14/02/03

JUDGMENT DATE: 14/02/2003

PARTIES:
Regina
Waldo Inamata

JUDGMENT OF: Handley JA Sully J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0238

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
P Ingram (Crown)
SM Kluss (Appellant)

SOLICITORS:
SE O'Connor (Crown)
Ross Hill & Associates (Appellant)

CATCHWORDS:
Appeal against conviction and application for leave to appeal against sentence - identification directions - summing-up lacked balance - trial judge's obligation to sum up the case - issues of parity and totality

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act

DECISION:
Appeal against conviction is dismissed. Leave to appeal against sentence granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60222/02
HANDLEY JA
SULLY J
BUDDIN J
FRIDAY 14 FEBRUARY 2003

REGINA v WALDO INAMATA

Judgment

BUDDIN J: The appellant was convicted on 21 September 2001 following a short trial in the District Court upon an indictment containing two counts. The first count alleged that on 24 August 1999 at Wetherill Park, whilst being armed with an offensive weapon, he robbed the St George Bank Limited of a sum of money. The second count alleged that on the same day at the same place he stole a BMW motor vehicle.
In respect of count 2, the appellant was sentenced to a fixed term of imprisonment for a period of 1 year and 6 months to commence on 19 April 2002 and to expire on 18 October 2003. The commencement date was selected to take account of sentences which the appellant was then serving. In respect of count 1 the appellant was sentenced to imprisonment for 8 years and 6 months to commence on 19 October 2003 and to expire on 18 April 2012 with an associated non-parole period of 5 years to expire on 18 October 2008. The overall effective sentence is thus a term of 10 years with a non-parole period of 6½ years.
The appellant appeals against conviction and seeks leave to appeal against the severity of the sentences which were imposed.
The appellant stood trial on his own although he had been originally arraigned together with another man named Daniel Shanks, who pleaded guilty to the armed robbery offence as well as to other unrelated offences.
The Crown case was that the appellant and Mr Shanks committed the armed robbery upon a branch of the St George Bank in the Stockland Mall at Wetherill Park. They were said to have entered the bank at about 8.45 am on the morning in question just as a member of the bank staff was entering the bank. The Crown case was that Mr Shanks was armed with a pistol which he used to threaten bank staff. There was no suggestion that the appellant was armed. Mr Shanks attempted unsuccessfully to gain access to a room in which a staff member was filling up the automatic teller machine with money. He demanded that the bank’s safe be opened but it was apparently not possible to do so. The appellant and Mr Shanks then removed approximately $57,217 from the tellers’ cash drawers which they then took with them. They left through a rear door of the bank and departed from the scene in a BMW vehicle which had been stolen from a street in Neutral Bay three days earlier. Although the vehicle was ultimately located some weeks later, none of the stolen money has ever been recovered.
The sole issue upon which the case was conducted was whether or not the Crown could establish to the requisite standard that the appellant was a participant in the two offences. The issue was thus one of identification.
The evidence in the Crown case consisted almost entirely of the observations of members of staff who were in the bank at the time of the robbery. It was supplemented by the observations of witnesses who saw the two men before the robbery and of a further person who saw the robbers run to, and then drive away, in the stolen BMW. There were also in evidence a number of photographs which had been taken by a security camera at different stages of the episode. Finally there was material which proved that the BMW vehicle was in fact stolen.
The appellant exercised his right to remain silent when police sought to interview him. The appellant did not give evidence at the trial and nor did he call any witnesses to give evidence on his behalf.
Some dozen or more witnesses provided a description of the robber which the Crown contended was the appellant. Broadly speaking it can be said that the descriptions which they provided were consistent with the appearance of the appellant, that is as to his age, height, build and complexion. Significantly, nearly all of them described him as being an “Islander.” As it happens, the appellant’s parents were both Cook Islanders although he himself was born in New Zealand.
The jury were of course able to observe for themselves what the photos taken by the security cameras revealed about the robber and were then able to compare them with the actual appearance of the appellant. It is also clear from the photos which were tendered, that in some respects some of the witnesses made errors in their descriptions, particularly in relation to items of clothing said to have been worn by the robber.
Of more particular significance to the Crown case was evidence from five bank staff witnesses who identified the appellant as one of the robbers from a collection of 10 photos which were shown to them in a video display. The identification process was itself video-taped in each instance. Three of those witnesses said that they were positive or sure or certain that the person whom they identified was one of the robbers, whilst a further witness said that she was 99.5% certain. A fifth witness said that she was 70% sure. These witnesses all attended the Wetherill Park Police Station on 12 October 1999, that is some six or seven weeks after the robbery, at which time they made their identifications of the appellant. The photograph of the appellant which was displayed in the array of photographs had been taken in 1997. Counsel who appeared at the trial informed the trial judge that it was part of his case that not only were all five witnesses mistaken concerning their identification of the appellant but that there had been collusion between them or at least an opportunity for them to have colluded in respect of their identifications, especially given that they had all attended the police station on the one day. When such a suggestion was put to individual witnesses it drew an emphatic denial.
Several other witnesses were also shown the video displaying the various photographs but were unable to recognise anybody although one woman selected someone other than the appellant.
It is against that background that it is now convenient to consider the first ground of appeal upon which the appellant relies. It asserts that “[h]is Honour erred in his directions to the jury regarding the issue of identification with respect to the count of robbery.”
No complaint was raised at trial in respect of the directions now sought to be impugned and accordingly the appellant requires leave, pursuant to rule 4 of the Criminal Appeal Rules, to argue the matter.
Subsumed within this ground appear to be several complaints. The first is that the trial judge failed to observe the requirements established by the High Court in relation to identification evidence in Domican v The Queen (1992) 173 CLR 555.
The appellant relies upon the following passages from the joint judgment in Domican:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (at 561-2)
…
The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification – not by reference to other evidence which implicates the accused. (at 565)
For completeness it is to be observed that their Honours also said that:
Section 405AA of the Crimes Act 1900 (N.S.W.), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize “the evidence given in the trial” if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities”. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. (at p 561)
The need for a warning is now governed by s 116 of the Evidence Act which is in the following terms:
(1)          If identification evidence has been admitted, the judge is to inform the jury:
(a)          that there is a special need for caution before accepting identification evidence; and
(b)          of the reasons for that need for caution, both generally and in the circumstances of the case.
(2)          It is not necessary that a particular form of words be used in so informed the jury.
Section 165 of the Act relevantly provides:
(1) This section applies to evidence of a kind that may be unreliable including the following kinds of evidence:
(a)          …
(b)          identification evidence…
(2)          If there is a jury and a party so requests, the judge is to;
(a)          warn the jury that the evidence may be unreliable; and
(b)          inform the jury of matters that may cause it to be unreliable; and
(c)          warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
The interaction of those two sections was discussed in R v Clarke (1997) 97 A Crim R 414. For present purposes it is clear that it is s 116 which primarily gives effect to the common law’s concern about reliance being placed upon identification evidence. See R v Rose [2002] NSWCCA 455 per Wood CJ at CL and Howie J at para 291.
The trial judge commenced the relevant part of the summing-up by informing the jury that the issue in the trial was whether or not the identification evidence satisfied them beyond reasonable doubt that the appellant was one of the two men involved in the robbery, there being no issue that there had in fact been a robbery. His Honour told the jury on a number of occasions that it must scrutinise the identification evidence with great care. His Honour then proceeded to inform the jury at some length of those matters, which in general terms, obliged it to give such scrutiny to the identification evidence. For example, his Honour said that “over a long period of time the criminal courts have amassed a large body of knowledge about the unreliability of identification evidence. It is a fact that identification evidence may be unreliable.” It is unnecessary to make any further reference to those general directions because they are not the subject of complaint in this Court and because they are, in my view in any event, quite unimpeachable .
The real complaint however is that the trial judge did not adequately discharge his obligation in bringing to the jury’s attention those specific matters which were said to be capable of undermining the reliability of the identification evidence in the present case. What his Honour did was to remind the jury of the following features of the case:
(a)          the fact that none of the witnesses knew either of the robbers to whom they were, accordingly total strangers. His Honour told the jury that “it would be easier to recognise a member of your family or your next door neighbour than it would be to recognise someone you have never seen before and asked to recall”;
(b)          the fact that the robbery itself occupied only “a relatively short period of time” and that it had happened “very suddenly and unexpectedly.” His Honour said that “[p]eople’s capacity to see something and to remember what had been seen can be affected by whatever happened happening unexpectedly, suddenly, threateningly and over a relatively short period of time”;
(c)          the fact that the witnesses were making their observations in circumstances in which they were stressed and traumatised;
(d)          the fact that there were two robbers rather than one which meant that the attention of the various witnesses was not upon one person exclusively;
(e)          so far as the capacity of individual witnesses to observe the robbers was concerned, his Honour reminded the jury that several of them could not see much and that one was unable to see the face of the man who did not have the gun at all because she was lying down at the time;
(f)           in relation to those instances where the appellant was subsequently identified from photos, the jury was reminded that about seven weeks had elapsed between the incident and the subsequent identification. The jury was told to evaluate those identifications against the background of the description which had initially been given by each of those witnesses at the time of the incident. His Honour then reminded the jury, in summary fashion, of each of those descriptions.
(g)          His Honour also reminded the jury that the photograph of the appellant had been taken in 1997. His Honour, with the concurrence of trial counsel, warned the jury in accordance with s 115(7) of the Evidence Act, that the fact that the police had such a photograph could not found an inference that the appellant had a criminal record;
(h)          the fact that in the same way as one person can make a honest mistake in identifying someone, so too can a number of people; see R v Ali (2001) 122 A Crim R 498.
(i)           the fact that one witness had selected a person other than the appellant from the video (a negative identification) and that others had failed to recognise the appellant.
Given that these features were, by and large, common to all witnesses it was quite appropriate for his Honour to have dealt with this issue in the way in which he did rather than, as was submitted, dealing with each matter as, it were, seriatim in respect of each witness. Nor does Domican require such an approach.
It is important to remember that it is not necessary that a trial judge should refer to every matter that is advanced on behalf of an accused person. See Domican at 561. Nor is it necessary to refer to every conceivable “weakness” in the evidence. See R v Eldridge [2002] NSWCCA 205 at para 56. See also R v Coe [2002] NSWCCA 385 at para 87. I am of the view, in light of the matters to which I have referred, that his Honour instructed the jury in appropriate terms upon those factors which might be regarded as undermining the unreliability of the identification evidence. Accordingly I have come to the conclusion that there has been sufficient compliance with the requirements arising from s 116 of the Evidence Act and, for that matter, with s 165 of the Act. I am fortified in that view by the fact that trial counsel made no request for redirections.
The second complaint is of a slightly different nature although in a sense it complements the first submission. Although it is not cast in such specific terms, the thrust of the submission appears to be that the way in which the trial judge summarised the evidence given by the various witnesses upon the issue of identification lacked balance insofar as “the effect of his Honour’s summing-up was to invite the jury to dismiss those pieces of evidence that did not support the conclusion that the appellant was the bank robber. The tone and logic his Honour described was to suggest to the jury that material that was inconsistent with the conclusion of guilt was possibly due to error and capable of being dismissed by them.” In so doing it is submitted that his Honour effectively undermined the effectiveness of the warning which he was required to give.
Before embarking upon the exercise of summarising the evidence his Honour informed the jury that he was going to “tabulate the evidence of each of the witnesses and I have tabulated it under these headings – appearance, age, height, build, skin colour or complexion, hair, face, eyes, whether shaven or unshaven, head wear and clothing.” His Honour then proceeded to remind the jury of those descriptions in the fashion which he had foreshadowed.
Rather than attract the criticism which is made of it, this exercise appears to me to have done no more than have provided a helpful distillation of that body of evidence. Moreover it had the advantage of enabling the jury to understand how the evidence was said to fit together and to enable the jury to test the reliability of the evidence of each witness by way of comparison with evidence given by other witnesses. This was not necessarily to the appellant’s disadvantage. Nor do I see it as being impermissible or inappropriate for his Honour to have included in the description evidence a reference to the short uncontested evidence of the witness Ms Guest, who observed the two robbers run to and enter the stolen BMW.
The trial judge went on to say:
Members of the jury, does the fact that Mr Barbkenian said that the man was Maori wearing a dark coat mean that he is describing somebody other than the man in the bank? Does the fact that Mrs Stacey said that the man was wearing a beanie mean that she was describing someone else? Does the fact that Mrs Borkowski said that the man was wearing a blue top, as do Mrs Jayawickrema, Miss Smith, Miss Edwards and Mrs Simsic, mean that they were all describing someone else? Does the fact that Mr Semkowski says that the man was wearing shorts mean that he was describing a different person? The differences in the descriptions could mean that they were all describing different “Islanders” in the mall and the bank at that time. If that is the fact, then you might think there were six or seven “Islanders” in the mall and the bank at that time.
Now you know there was only one person described as an “Islander” in the bank building at the time. You have got photographs of what that man was wearing. People have made mistakes in what they say that man was wearing.

It is submitted that this passage also reveals that his Honour has failed to maintain the proper balance which is required in a summing-up. I do not agree. In any event as this Court said in R v Zorad (1990) 19 NSWLR 91:
“[a] judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury’s function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts “(at 106-7).
In R v Courtney-Smith (1990) 48 A Crim R 49 this Court said:
The assessment of the overall balance requires a consideration of the whole of the summing up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and in its context in the trial. In many cases the summary of the Crown’s case on the facts will necessarily take somewhat longer than the summary of the case for the accused. Often, the accused may give no evidence or may call only character evidence. The Crown’s case being circumstantial may require some little elaboration. It is not the length of time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard. (at p 56)
Also of relevance in the present context is the following passage from the decision of this Court in R v Ali (1981) 6 A Crim R 161 in which it was said that:
It is frequently said that a summing up must present a balanced account of the conflicting cases. But when one case is strong and the other is weak it does not follow that a balanced summing up will be achieved by under-weighting the strong case and over-weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other. (at p 165)
The judge told the jury on a number of occasions that the facts were for them alone and that they were not bound to accept any opinion which he may have expressed. In those circumstances, and in the light of the authorities to which I have referred, it does not seem to me that upon a fair reading of the entire summing-up, that there is any substance in the appellant’s submissions.
In the same vein, criticism is also made about the way in which his Honour summed up the evidence concerning those witnesses who identified the appellant in the video on 12 October. It was submitted in that context that the trial judge was dismissive of the fact that a number of other witnesses could not identify the appellant from that video. His Honour then told the jury:
Members of the jury, the fact that Mr Babkenian could not recognise anyone, or the fact that Mrs Jayawickrema identified photograph number 2, or the fact that Ms Smith could not recognise anyone, or the fact that Mr Semkoski could not recognise anyone, does not affect the fact that five people have recognised someone. The fact that five people have recognised someone does not affect the fact that Mr Babkenian could not recognise anyone, or that Mrs Jayawickrema identified photograph number 2. The Crown relies upon the five women who, to differing degrees of certainly, (sic) have selected the photograph number 4, which is the photograph of the accused, as being a photograph of the Islander who was involved in the robbery of the bank. Frankly, that is the evidence that the Crown relies upon. The fact that others have not selected that photograph does not affect the fact that five have selected the photograph.
Members of the jury, really, it is the five people who have selected the photograph whose evidence you must scrutinise with great care and caution. If, when you do so, you are satisfied beyond reasonable doubt that the accused has been accurately identified as one of the two robbers, the Islander, then obviously you would find the accused to be guilty on both counts on the indictment. If, however, having scrutinised that evidence with great care and caution you are not satisfy (sic) beyond reasonable doubt that the accused has been accurately identified by those five women as being the Islander who robbed the bank, then you find the accused not guilty of both counts of the indictment.
His Honour also said:
You know that there were only two people involved in the robbery. Let me digress for a moment to remind you that you are only concerned with the Crown’s allegations against the accused. Do not concern yourselves with the fact of the other man. This is a trial in relation to the Crown Prosecutor’s allegations against the accused, Mr Inamata.
It is submitted that the descriptions provided by the witnesses of the man with the weapon and the fact that various of the witnesses could not positively identify the appellant from the video were highly relevant considerations and that his Honour, in the passages to which reference has been made, in effect invited the jury to ignore those matters. I would not place upon those passages the interpretation for which the appellant contends. It appears to me that the trial judge was simply reminding the jury of the need for them to focus upon the issues which were critical for their determination, namely the requirement for them to scrutinise with great care the evidence of the five main witnesses who gave identification evidence which inculpated the appellant.
The final complaint is that “His Honour should have warned the jury of the dangers of cross-racial identification.” Reliance is placed upon this Court’s decision in R v Taliai, CCA unreported, 11 April 1997. It is not apparent that that decision in fact authorises such a proposition. It would in any event have been very obvious to the jury that the various witnesses were purporting to identify a person of a different race. I am not persuaded that such a consideration required inclusion in any warning in the circumstances of the present case.
Before leaving the question of the adequacy of the directions in this case, it is apposite to recall what McHugh J said in Festa v The Queen [2001] 185 ALR 394. His Honour observed that:
Directions concerning the weaknesses in individual cases need follow no particular formula. It is sufficient if the jury receive directions that give them a sufficient understanding of the potential weaknesses in the particular evidence put before them, as opposed to weaknesses generally inherent in identification evidence. The directions must ensure “that the jury understands the possible weaknesses in identification evidence and the need for it to take particular care in its use.” At the same time, the judge must be careful that the directions do not rob the evidence of all probative value. The Court of Criminal Appeal of New South Wales has specifically acknowledged the difficulty trial judges face in drawing the line between informing a jury of the otherwise unappreciated dangers in identification evidence and the deprecation of that evidence. (at 413)
In my view this Ground of Appeal has not been made out. I would propose that leave should be refused. As to recent authorities concerning the application of rule 4, see R v Roberts [2001] NSWCCA 163; R v Moussa [2001] NSWCCA 427; R v Nguyen [2002] NSWCCA 342.
I might add that were I to be in error in relation to rule 4, in that there had been deficiencies in the trial judge’s directions upon this subject such as to warrant a new trial, I would, because of the strength of the Crown case, have no hesitation in proposing that the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied. See Festa; R v Yates & others [2002] NSWCCA 520.
The second ground of appeal asserts that “his Honour failed to adequately sum up the evidence with respect to the charge of steal motor vehicle.”
In order to understand the submissions in relation to this Ground of Appeal it is necessary to refer to what his Honour said upon this subject:
The fourth rule is this; although in the way this trial has been conducted, this rule does not have any application, but you would have been required to consider each of the two counts separately and distinctly, one from the other, and I would have told you that if you find the accused to be guilty or not guilty of one, does not mean that he necessarily is guilty or not guilty of the other. However, because of the way this trial has been conducted, if it should be that you find the accused to be guilty of one, then you will find him to be guilty of both and if you find him not guilty of one, then you will find him to be not guilty of both. That is because, on the evidence of Mrs Guest, and her evidence was not challenged, the two robbers, when they left the bank of St George Bank, ran to the purple BMW and drove off in it. So, if you are satisfied about the accused’s guilt for one, then you will find him guilty of both. If you are not satisfied about the accused’s guilt for one, you will find him not guilty of both.
Members of the jury, another thing I would have told you would be this; each charge that the Director of Public Prosecutions brings against the accused contains an essential element. The Crown has to satisfy the jury beyond reasonable doubt of the essential element of the charge if there is only one, or the essential elements of the charge if there are more than one. The Crown does not have to satisfy the jury about everything about which evidence is being given. What the Crown has to satisfy the jury about is the essential element of the charge if there is only one, or the essential elements of the charge if there are more than one. I would have then gone on to tell you what are the elements of the charge of stealing a motor vehicle, or conveyance as it is said in the indictment. But, having regard to the way this trial has been conducted, I need not do that. That is because the issue in the trial is whether or not the evidence satisfied you that the accused was one of the two men who robbed the St George Bank Branch and drove away in the purple BMW. If the evidence satisfied you beyond reasonable doubt that the accused was one of those two men, then you find him guilty of both counts in the indictment. If the evidence fails to satisfy you beyond reasonable doubt that he was one of those two men, then you find him not guilty of both counts in the indictment.
The appellant’s written submissions in support of this Ground are in the following terms:
It is submitted that it was open to the jury to accept or reject [the evidence of Ms Guest, the witness who saw the two men run to and enter the car] regardless of their assessment of the other witnesses inside or near the bank. It is thus respectfully submitted that his Honour erred in not summing up the evidence to provide an objective framework for the assessment of the second count in the indictment.
His Honour did not describe the elements of the offence to the jury and the evidence left open the possibility that the person in the car had no knowledge of it having been stolen by someother person and being an innocent passenger.
In considering this Ground it is critical to bear in mind the way in which the trial was conducted. Right at the outset of the trial, his Honour told the jury that he had been informed by counsel that the sole issue for their determination was whether or not the Crown could prove that the appellant was one of the men who participated in the robbery and the theft of the stolen vehicle, it being common ground that the same two men had committed each of those offences. The trial proceeded upon that basis. In those circumstances it is hardly surprising that Ms Guest’s evidence was not the subject of challenge. His Honour, in any event, summarised the effect of Ms Guest’s evidence in an entirely appropriate fashion. In all the circumstances I can see no substance in the appellant’s submission that the trial judge failed to adequately summarise the evidence upon this count.
The trial judge was clearly aware of the normal requirement that the jury be given directions in relation to the essential elements of the offence and that they be informed that they must consider each of the two counts separately. His Honour said so in terms but then went on to say that he was relieved of that obligation by reason of the way in which the trial had been conducted. His Honour’s directions in that regard drew no complaint from trial counsel.
With due respect to trial counsel, the approach taken by him was the only sensible tactical course available to him. It is difficult to conceive how a reasonable jury could have imagined in all the circumstances of the present case that the appellant may have been “an innocent passenger” in the stolen BMW especially as the age, condition, value, and distinctive features of the vehicle would have been readily apparent from the photos of it which were in evidence. Had trial counsel thought that such a consideration was reasonably open upon the evidence, but had not for tactical reasons wished to raise it himself, then he could nevertheless have simply asked the trial judge to have directed the jury upon the issue. Significantly counsel did not adopt such a course.
It is instructive to recall what the High Court has recently said concerning the scope of a summing-up. In Holland v R (1993) 117 ALR 193, a majority of the Court, Mason CJ, Brennan, Deane and Toohey JJ, in a joint judgment said that:
A failure by a trial judge fully to direct the jury about all the elements of an offence does not automatically mean that, in the event of a conviction, there has been a miscarriage of justice. To determine whether there has been a miscarriage, regard must be had to all the circumstances of the case, including the conduct of the trial. As Dixon, Williams, Webb, Fullagar and Kitto JJ observed in Alford v Magee:
... it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them... He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.
To the same effect were the comments of Lord Hailsham of St Marylebone in R v Lawrence:
The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts. (at 200-1)
In R v Chai (2002) 187 ALR 436 the Court said:
First, it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case. Secondly, the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided. The judge’s task was not to compose an essay on the topic of accessorial liability for manslaughter. It was to explain to the jurors so much of the law as they needed to know in order to decide the issues that arose from the charges, the evidence, the case for the prosecution and the defence case. (at 441)
Those remarks are, in my respectful view, of direct relevance to the present case.
In my view the trial judge’s summing-up was appropriately tailored to meet the circumstances of the case and was accordingly in conformity with what the relevant authorities require. I would reject this Ground of Appeal.
The final ground is an application for leave to appeal against the severity of the sentences which were imposed by the sentencing judge.
In support of this application, it is submitted that the sentencing judge erred in two respects. First, it is contended that the sentence which was imposed for the armed robbery offence was manifestly excessive when compared with the sentence imposed upon the co-offender, Mr Shanks. Secondly, it is argued that the sentencing judge failed to properly “take into account the principle of totality in considering the total period that the offender would spend in custody.”
The applicant was almost 25 years of age at the time of the offence and 27 when he stood for sentence. His Honour had regard to his background which featured considerable periods of unhappiness in his youth and drug and alcohol abuse extending back to his early teens. He had performed poorly at school and has rarely been in gainful employment.
The applicant has acquired a number of convictions for serious offences. In New Zealand he was dealt with as a juvenile in respect of a number of matters of dishonesty which included convictions for burglary and unlawfully taking a motor vehicle. Upon his arrival in Australia he was before the Children’s Court and the Local Court on a number of occasions for offences of break, enter and steal. In 1994 he was imprisoned for offences of armed robbery, robbery in company and robbery with striking. In 1996 he was placed upon a recognisance for a further offence of robbery. In 1999 he was again imprisoned for an offence of robbery in company. He escaped whilst serving that sentence and thus was at large when he committed the present offence. Following his recapture in February 2000, he was sentenced in respect of the escape (and another offence). That sentence expired on 19 April 2002 at which time the sentence with which this court is concerned, was ordered to commence.
There were, as the sentencing judge acknowledged, a number of features of the case that revealed that the applicant’s behaviour was of very considerable objective seriousness. The offence was planned by two people who acted in concert, one of whom was carrying a firearm. A very large sum of money was taken, none of which has been recovered. Staff members were threatened by the co-offender who was holding a firearm. Moreover, the applicant was, as I have said, an escapee, who was at the time then serving a sentence for an almost identical offence. There were also of course his earlier convictions for similar offences to be considered.
The sentencing judge had previously sentenced Mr Shanks. That offender was sentenced to a term of imprisonment for 8 years with a non-parole period of 5 years in respect of the armed robbery offence. It is to be noted that he received a discount for having pleaded guilty and that he was dealt with for a further unrelated offence in respect of which he received a sentence which was to be served cumulatively upon the sentence which was imposed for the armed robbery offence. It was submitted that some differentiation should have been made between the two sentences, to the applicant’s advantage, to reflect the fact that he had played a less significant role in the offence. Even upon that assumption, I remain unpersuaded that an argument based upon considerations of parity can be made out when due weight is given to the overall circumstances of each of the respective offenders. The applicant can entertain no justifiable sense of grievance. See Lowe v the Queen (1984) 154 CLR 606.

In respect of the argument concerning the principle of totality, the applicant recognises that the sentencing judge gave effect to it by specifically reducing, for that very reason, each of the individual sentences. It is submitted however that his Honour overlooked the principle insofar as he did not specifically refer to it when making an assessment of the overall period which the applicant must spend in custody (that being an overall non-parole period of 8½ years).
I would not be prepared to assume that the sentencing judge overlooked this feature of the case particularly as his Honour made a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 by reason only of the fact that the sentences which he was imposing were to be served cumulatively upon the sentences which the applicant was then serving.
In my view there is no substance in either complaint.
I propose the following orders:
1 Appeal against conviction is dismissed.
2 Leave to appeal against sentence granted but the appeal is dismissed.
HANDLEY JA: I agree.
SULLY J: I agree.
HANDLEY JA: The orders of the Court will be as proposed by Buddin J.

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LAST UPDATED: 18/02/2003

[2003] NSWCCA 19

14 February 2003