R v Kirby

[2000] NSWCCA 330

CITATION:	R v Kirby [2000] NSWCCA 330 revised - 20/10/2000
FILE NUMBER(S):	CCA 60356/99
HEARING DATE(S):	9 August 2000
JUDGMENT DATE:	13 September 2000
PARTIES :	Kevin James Kirby Crown
JUDGMENT OF:	Beazley JA at 1; Wood CJatCL at 2; O'Keefe J at 96

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	R.D. Cogswell SC for Crown P.R. Boulten for Applicant
SOLICITORS:	S.E. O'Connor D.J. Humphreys
CATCHWORDS:	CRIMINAL LAW- appeals - appeal against conviction - appeal against sentence - robbery - directions to jury - identification evidence - sufficiency of directions concerning photographic evidence - Jones and Dunkel direction - aggravating circumstances in sentencing.
CASES CITED:	Crimes Act 1900 (NSW) s97(1) Evidence Act 1995 (NSW) s18, 20,116, 165, 137 Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Rules (NSW) r4
DECISION:	(1) Appeals against conviction dismissed;; (2) Applications for leave to appeal against sentence granted, but appeals dismissed; (3) Sentence and conviction below confirmed.

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IN THE COURT OF
CRIMINAL APPEAL

No. 60356 of 1999

BEAZLEY JA
WOOD CJ at CL
O’KEEFE J

WEDNESDAY 13TH SEPTEMBER 2000:

Regina v Kevin James KIRBY

The appellant was convicted of two counts of robbery under s97(1) Crimes Act 1900. In respect of each count, he was sentenced to concurrent terms of penal servitude for ten years, comprising a minimum term of six years and ten months and an additional term of 3 years and 2 months.
He appealed against the conviction and sought leave to appeal against the severity of sentence on grounds that: (1) the trial judge erred in permitting the course of cross examination taken by the Crown which allowed the jury to make a comparison between the accused and some security camera stills; (2) the trial judge erred in his directions concerning identification evidence; (3) the cross examination of the appellant concerning the possible alibi evidence was unfair and risked a miscarriage of justice.

HELD (dismissing the appeals and confirming conviction and sentence):

Ground 1: Comparison of accused with security camera photographs
(1) Having the jury view the appellant while wearing his hat, was not akin to a dock identification, nor was it impermissible. The jury were not being asked to make an identification reliant upon their own memories, they were merely making a comparison of evidence. The procedure was not unfair so as to attract exclusion under s137 Evidence Act 1995 (NSW).
Sorby (1983) 152 CLR 281, Bulejcik (1995) 185 CLR 375; Lockyer (1996) 89 ACrimR 457; Singh-Bal (1997) 92 ACrim R 397; Blick [2000] NSWCCA 61 applied.

Ground 2: Absence of warning
(3) The Evidence Act and authorities such as Kerrie-Ann Clarke, Cody and Davis and Dominican, require a specific warning to be given in regard to the dangers of identification evidence, together with the reasons for such a warning, generally and in relation to the particular case.

(4) Although , the present case could be distinguished because it did not concern the evidence of an eyewitness making direct identification from their own memory, but was a comparison of evidence. It was appropriate to give the warning of the kind contemplated by Section 165(1) of the Evidence Act.

(5) Neither the Evidence act nor authority prescribe any particular form of direction to be given; the direction given by the trial judge was sufficient to adequately warn the jury of the need for caution when assessing the photographic evidence.
Kerrie-Ann Clarke distinguished

(6)The fact that the caution was not given at the time of the comparison exercise did not risk a miscarriage of justice because the case was not lengthy or complex, and there was no particular point during the trial where the warning would have been best given. No warning was sought at the time, the prosecution case was compelling, and therefore leave under rule 4 of the Criminal Appeal rules was refused.

Ground 3: Cross examination of the appellant concerning the possible alibi evidence
(6) In cross examination the Crown without objection inappropriately questioned the appellant about his failure to call his wife and Ms Mapp who, on the face of the ERISP which was in evidence, were potential alibi witnesses. However, the defence placed before the jury the contents of the wife’s statement which tended to assist the defence and an explanation for the absence of the other witness. No Jones v Dunkel direction was given and no unfairness to the appellant was occasioned.
RPS 74 ALJR 449 considered

SENTENCE
(7) A number of aggravating circumstances, together with the subjective position of the appellant, and the stern approach taken by the NSWCCA in relation to serious armed robberies, justified the sentences imposed. No special circumstances existed to qualify the appellant for a reduction in the overall sentence.
Readman (1990) 47 ACrimR 181; Kenny Li NSWCCA 9 July 1997; Doridis NSWCCA 18 December 1986; Jerrard (1991) 56 ACrimR 297; Henry (1999) 46 NSWLR 346; Broxam NSWCCA 3 April 1986; Roberts (1994) 73 ACrimR 306; Waldron NSWCCA 3 March 1994; Samuela Antonio [2000] NSWCCA 266 (1990) 47 ACrimR 29, Boyle (1987) 34 ACrimR 202 applied.

ORDERS PROPOSED

(1) Appeals against conviction dismissed;
(2) Applications for leave to appeal against sentence granted, but appeals dismissed;
(3) Sentence and conviction below confirmed.

IN THE COURT OF
CRIMINAL APPEAL No. 60356 of 1999

BEAZLEY JA
WOOD CJ at CL
O’KEEFE J

WEDNESDAY 13TH SEPTEMBER 2000

Regina v Kevin James KIRBY

JUDGMENT

1   BEAZLEY JA: I agree with Wood CJ at CL.

2 WOOD CJ at CL: On 27 May 1999, the appellant was convicted of two counts of robbery, after a trial in the District Court before Shillington DCJ and a jury. He was sentenced, in respect of each count, to concurrent terms of penal servitude for ten years, comprising a minimum term of six years and ten months (taking into account a further period of eight months pre-trial custody), and an additional term of 3 years and 2 months. He now appeals against the convictions, and seeks leave to appeal against the sentences. 3 It was the Crown case that the appellant, in company with Paul Beveridge Wilkinson, committed robberies at the Waverton and Epping Railway Stations, on 22 July and 28 July 1997. They were offences for which the maximum penalty available on conviction is imprisonment for twenty years (97(1) Crimes Act 1900). The sums of money stolen were $1562.20 and $2,850 respectively.

Count 1

4   Evidence was called from Mr. Corcoran, a station assistant at Waverton Railway Station, that at about 8.10pm he was in the process of securing the station for a close down. As he was about to unlock the stationmaster’s door, he became aware of a man wearing a black overcoat, holding a gun. This man said “Just do as I say and you won’t be shot”. Following instructions, he opened the door to the office. The gunman entered behind him and pulled a black balaclava over his head. He was followed by another man who was wearing a red balaclava with a blue stripe. The gunman, who instructed him to sit on the floor, and not to touch any security buttons, removed the cash from the drawer and cash tray, while the second man commenced to drill the safe with a power tool. Further cash was taken from the safe. 5   When the two men left the station, the gunman said “Right, don’t do anything for (he thought a minute) because there is another person outside”. 6   Mr. Corcoran was shown a video of 13 photographs of male persons on 11 September 1997. He identified the gunman as the co-accused Wilkinson. He was unable to identify the gun but he did identify the dark overcoat that the gunman had been wearing. The coat had been recovered by police from Wilkinson’s home. 7   Mr. Corcoran told police, in February 1999, that he did “not really get a look at the second man and because of the lapse of time” there was no point in showing him the second video that was seen by the other witnesses. 8   The description he gave of the gunman was of a male, about 180 cms tall and of an average build. The second man, he said, was of a much bigger build. He was unable to provide any description of his clothing other than the red balaclava. 9   Stills obtained from the video security cameras at the station, showing the offenders, were tendered in evidence. The stills of the second man that showed his face and clothing assumed considerable importance in the appellant’s trial.

Count 2

10   Mr. Sandy Harrison, a station assistant at Epping Railway Station, gave evidence that, at about 9.30pm, as he was returning to the office after changing the indicator board, he became aware of a man standing behind him with a gun. He was instructed to go inside, where he and Mr. Bruce Malouf, the booking clerk, were taken to the back of the booking office. The gunman asked Mr. Malouf’s advice as to how to open the safe. As Mr Malouf obtained the combination from the book that contained the necessary code, and attempted to open the safe, a second man entered the office. He was wearing a Khaki Akubra hat and was carrying a large blue nylon bag. Mr. Malouf appeared to have difficulty opening the safe, and the second man took over from him. He was able to use the combination from the code book to open the safe, but could not get access to an inner compartment. Mr. Harrison then saw him go to work on it using an angle grinder, a spanner and hammer. 11   After trying unsuccessfully for a time to open the inner safe, the two men packed up their gear, put their Akubra hats on and left. Before leaving one of the men said, “Wait 30 seconds, we have got someone out there watching and waiting”. 12   The first man, Mr. Harrison said, was about five foot eight or five-nine in height, with a skinny build. He was wearing gym boots and a blue bomber jacket, which had “something about plumbing” on it. The description he gave of the second man was of a much bigger male, between five-eight and five-ten in height. He was a bit chubby, had slightly long hair sticking out at the back, and a bit of growth around the mouth and chin. He was wearing a greyish coloured corduroy jacket, a yellow T-shirt, green track pants and black and white cross trainer type shoes. At one stage he donned a red and white coloured beanie which was pulled down. 13   Mr. Harrison identified the gunman, at North Sydney Police Station on 18 September 1997, from the video, as the co-accused Wilkinson. He also identified the blue “plumbers” jacket when it was shown to him by police, and the gun which was found in Wilkinson’s possession. 14   Mr. Malouf gave evidence of seeing the gunman walk to the door of the office from across the concourse. He assumed that he wished to ask a question about the running of the trains. However, when he opened the barrier room door to let the man in, the latter produced a firearm, and asked that the safe be opened. The description he gave was of a man about 5 feet 9 inches tall, with short dark hair, of slim to medium build, clean shaven, and wearing a dark blue jacket with a lighter logo “plumbers” stitched onto it. Soon after coming into the office this man pulled a black balaclava over his face. 15   At the gunman’s instruction he obtained the combination for the safe, which had already been shut for the night. While attempting to open the safe, a task with which he had some difficulties, he saw a second man come into the office carrying a big blue vinyl bag. This man took over the opening of the safe. Money was removed from it when it was opened, and placed into the blue bag. 16   The second man then asked for advice as to the way in which the second safe could be opened. The outer compartment was opened with the key that was kept in the combination safe. However, the inner security compartment, which contained a great deal more money, and which could only be opened by an SRA employee and security guard, each with their own key, could not be opened. The second man then went to work on it with an angle grinder, a pair of pliers, a cold chisel, a claw hammer and a large spanner. 17   This second man, he described, as about 5 feet 11 inches tall, with a fair complexion, reddish to brown hair collar length and a light wispy beard. He was fairly obese and was wearing a brown corduroy jacket, blue coloured track pants and a red coloured balaclava which he pulled over his face after entering the office. 18   The attempts to open the security compartment of the second safe were unsuccessful, and after about 30 minutes the two men donned their Akubra hats and walked off carrying the bag between them. Before leaving they said “give us 30 seconds to a minute to get away because we have got someone outside waiting, waiting for us”. 19   On 13 September 1997, Mr. Malouf identified the gunman as Wilkinson, from the thirteen photographs shown to him. He also identified the “plumbers jacket” (Exhibit “J”) as the one worn by the gunman, and the gun which that man had used. It was the weapon found in Wilkinson’s possession when he was arrested. Later in October, when he was shown a videotape with photographs of twelve men, he said to police that the two males who looked most similar to the second man were males number 4 and 9, “but it is so long ago and he had his balaclava over his face most of the time so I can’t really remember.” Neither of the males was the appellant. 20   Mr. Vaughan Pinto, a station assistant who reported for duty a little earlier than rostered that night, gave evidence of seeing a man with a gun when he walked from the barrier room into the booking office. This man was wearing a balaclava, and a dark blue or green jacket with the word “plumber” on it, in gold letters. He was about 169 cms tall and of a slim build. He was wearing one glove. 21   Mr. Pinto heard the sound of an angle grinder from around the corner of the L-shaped office. Although he did not see the grinder in use, he later saw another man come from around the corner. He was wearing a dark coloured jacket, with a grey Akubra covering his face. He was a much taller and bigger man than the gunman - a bit overweight. His hair was “darkish or brownie sort of coloured,” and it came down under his hat. He had “like a goatee”. Both men left the premises carrying a big blue bag between them. 22   On 18 September 1997, Mr. Pinto identified the gunman, as Wilkinson, from the video. He also identified the “plumbers” jacket and the gun. On a second occasion, he was shown a video line-up of a different group, but he was unable to identify the second man.

Other evidence

23   Wilkinson and the appellant were arrested on 4th August 1997. A shortened firearm was found in Wilkinson’s possession as was the long black overcoat, which the witness Corcoran identified as that worn by the gunman at Waverton. 24   During the ERISP conducted with the appellant, that day, he denied that the person depicted in the photograph taken by the surveillance camera at Waverton Railway Station, wearing an Akubra style hat, was him. He denied having been there on 22 July 1997, or over the preceding four weeks. He also denied having committed the robbery at the Epping Railway Station, a place he said that he had not visited for years. He acknowledged owning a mobile phone [phone]) which had been leased in the name of Paul Wilkinson, because he had insufficient identification to obtain a phone in his own name. 25   The appellant was invited to participate in an identification parade, but indicated that he wished first to receive legal advice. It did not proceed. 26   The appellant’s premises were searched on the morning of 5 August 1997. A number of items were found including a brown corduroy jacket; a blue vinyl bag; a pair of black and white running shoes; a number of Akubra hats (including one that was brown with a bit of grey); a pair of green track pants; a yellow T-shirt; a striped long sleeve T-shirt; a Hornets brand back pack; a fluorescent green shirt; a pair of brown suede gloves; an angle grinder; a hammer; a spanner and a cold chisel. 27   Additionally, police recovered from the appellant’s home a blue jacket with the word “plumber” stitched on it, that was consistent with the one worn by the gunman at the Epping robbery, being the one that the witnesses respectively identified at North Sydney Police Station. 28   There was evidence from a Telstra officer that there was a call made on the appellant’s mobile phone, to the Annandale home phone service [phone] leased to Wilkinson, at 4.46am on 22 July 1997, the date of the first robbery. It went through the Milson’s Point base station sector two. The appellant’s home was in Kent Street, Millers Point, a location capable of being served by the Milson’s Point cell. 29   Another call was made through these services on 24 July 1997, four days before the second robbery, which most likely went through the Epping base station sector 2. 30   The evidence of the telephone calls was relied upon as showing the existence of an association between the two accused, a matter that was further confirmed by surveillance conducted on the afternoon of 4 August 1997. On that afternoon Wilkinson was seen to drive to the appellant’s home and to pick him up in a motor vehicle. 31   A surveillance photograph (Ex AD) was taken on 30 July 1997 of the appellant and admitted into evidence, without objection. Its purpose was to facilitate comparison with the security video stills of the second man, by recording his appearance proximate in time to the robberies. Detective Banfield also gave evidence of his appearance at the time of his arrest, on 4 August 1997, as a man who was around 185/186 cms in height, overweight, with long brown curly hair tied in a small pony tail. He was unshaven and had several days’ growth that was of a lighter shade than his hair. 32   There was no scientific examination of the appellant’s clothing for traces of filings from the grinding or drilling tools used at the two robberies. No red coloured beanie, whether with or without a stripe, was found during the search of the appellant’s home. A blue and black striped beanie was, however, found.

The defence case

33   The appellant gave evidence at his trial. He denied being involved in either offence. He acknowledged having known Wilkinson for some time. 34   He also acknowledged ownership of the various tools, including the angle grinder found at his home, and tendered in evidence, but said that he had them for lawful purposes. The blue bag he said was his, but he denied that it was ever used to carry power tools. He said that he did not make the phone calls on 22 and 24 July, on the mobile phone. It was a phone that he said he had loaned to Wilkinson on occasions, although he could not recall when that had last occurred. 35   The grey corduroy jacket, yellow T-shirt and running shoes found at his home, he agreed, were his. The blue nylon jacket with the “plumbers” logo that was found on a hat rack in his home, however, was not his. He thought that it belonged to Wilkinson, but he could not explain how or when it found its way to the hat rack. 36   The several Akubra hats that were found he said “mainly” belonged to his children. He denied owning a red and white beanie or a red beanie with a blue stripe. He denied ever having worn the grey Akubra hat that was tendered in evidence. To the evidence concerning this hat, and the way in which it was used in his cross examination, I will return when I come to consider the first ground of appeal. 37   In the course of his cross examination, the appellant was asked to compare the items found by police at his home previously mentioned, with the various items of clothing or bags that could be seen in the video camera stills, particularly those relating to the “second man” at the Waverton robbery. He agreed that there was a similarity in appearance, style or size in almost every instance. He also agreed that the other man depicted in some of the security camera stills looked very much like Wilkinson, and that the “plumbing jacket” the man was wearing was the same as that found by police in his house. 38   In the course of his cross examination, the appellant was also questioned as to whether his de facto wife, or another young person, were going to be called in his case. To the significance of this cross examination, which is the subject of the third ground of appeal, I will return.

Ground 1 - Comparison of Accused with Security Camera Photographs

39   The appellant submitted that his Honour erred in permitting the course that was taken by the Crown Prosecutor, when cross examining the appellant in relation to the security stills of the second offender at Waverton Railway Station. 40   In the course of that cross examination, the appellant was asked to place on his head an Akubra hat, that had been found at his house (Ex P), being a hat that he agreed was similar to the hat seen in one of those stills (photograph Ex D5). 41   When he put it on, he said that it was a “bit big”. He was then asked to put it back on, to turn his head sideways and to pull the brim down a bit. At that point his counsel objected. His Honour allowed the prosecutor to continue, whereupon she put to the appellant that he was in fact, the person shown in two photographs (Exhibits D1 and D5). He disagreed. The jury was then, with his Honour’s consent, given the photographs, and allowed to view the appellant while he was wearing the hat. At one stage a juror asked him to tilt his head down. 42   It was submitted that this was an irregular course, akin to a dock identification. There was said to be an unfairness to the appellant because:

(a) of the suggestive or subliminal effect of an invitation to the jury to physically compare the photograph with the appellant as he sat in the witness box wearing the hat;

(b) the comparison invited was between a two dimensional photographic image and a three dimensional witness, and because

(c) the jury only had one person with whose appearance they were to make the comparison.

43   I am not persuaded that this argument has been made good. Nor am I persuaded that the course undertaken was akin to an identification of the kind that could not have been permitted had it involved a witness. The vice in a dock identification, or in a procedure that involves a witness examining a single person or a single photograph, lies in the strong suggestion that the person seen or depicted is the suspect. It has long been recognised that circumstances of this kind can subtly influence a witness identification that is based upon a memory of the features of an offender, who was previously unknown to the witness. There is, in such a procedure, a real potential for unfairness, because of the vagaries of memory, and because of the difficulties in laying down and preserving an image of a person seen fleetingly, in a dynamic situation, and often in conditions of poor lighting, or from a distance. 44   The dangers inherent in witness identification, and the risks of mistake, and of surrender of independent reliance upon personal recollection to the influence of suggestion, particularly in the case of dock identifications, (“the displacement effect”) and of any procedure that does not involve a physical line up or a photoboard, of a group of persons so selected, or so conducted, as to ensure that the suspect does not stand out, (as for example was the case in Blick [2000] NSWCCA 61) are well documented: Davis & Cody (1937) 57 CLR 170 at 181-182; Alexander (1981) 145 CLR 395; Domican (1992) 173 CLR 555; Kerrie Anne Clarke NSWCCA 31 October 1997 and Carusi (1997) 92 ACrimR 52. 45 The position is also now governed by SS116 and 165 of the Evidence Act 1995, which require a direction to the jury as to the special need for caution before accepting identification evidence, and an explanation of the reasons for it, both generally and in the circumstances of the particular case. 46 In the present case the jury were not being asked to make an identification reliant upon their own memories. They were doing no more than they inevitably would have done once the security photographs were tendered - ie, to examine them against the man in the dock, and against the various items of clothing and otherwise that had been found at his home and tendered in evidence. The difference is that they were making a comparison of evidence, not an identification from their own memories. 47 The demonstration by a witness of his or her personal appearance, or of the sound of his or her voice, or the provision of a sample of handwriting, and the wearing of a piece of clothing connected with a crime to see if it fits, are commonplace events and entirely unexceptional. They do not require any independent proof (Bulejcik (1995) 185 CLR 375 at 380-381) and their purpose is to enable a jury or other trier of fact to make their own comparison with other physical evidence before the Court: Sorby (1983) 152 CLR 281 at 292. The permissibility of such a procedure was expressly recognised by Toohey and Gaudron JJ in Bulejcik at 395, where their Honours said:

“Where two voices are being heard side by side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made. By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery.”

48 So much was conceded by counsel, whose submission rested, essentially, upon the proposition that the risk of unfair prejudice to the appellant, of a procedure requiring him to wear a hat while the jury had the security stills, outweighed the probative value attaching to it, thereby attracting its exclusion under S137 Evidence Act. This was said to arise because the exercise risked reminding the jury that the man wearing the hat in the dock was the offender, or subliminally reinforcing that contention. 49 For the reasons mentioned, and bearing in mind that it was both inevitable and necessary for the jury to pay close attention to the security videos, to the stills taken from them, to the photograph of the appellant taken within days of the offence, and to the descriptions given of the second offender by the State Rail staff and by the arresting officer, I am not persuaded that the procedure was unfair. It made sense, if a comparison was to be made, for the appellant to wear an Akubra hat of the kind worn by the offender, since that was how that person appeared in the stills and videos. 50 The comparison evidence, and the procedure had an obvious probative value, and the case was not one in which there was, to my mind, any risk of the jury giving the exercise an unwarranted weight, or of misusing it, or of being led into a process of evaluation or reasoning that was unjustified, and hence of a kind that would attract S 137 of the Evidence Act; Lockyer (1996) 89 ACrimR 457 and Singh-Bal (1997) 92 ACrimR 397; and see also Blick. In particular, it is impossible to accept the proposition that the jury ever lost sight of the fact that it was the Crown contention that the appellant was the second offender, or that the comparison exercise reminded them of that, or reinforced it in their minds. 51   This ground has not been made good.

Ground 2 - Absence of warning

52   In the summing up, his Honour gave a direction concerning the dangers of identification evidence in which he drew attention to the fact that the law recognises that mistakes in identification can be made. Additionally, he gave a warning concerning the use of the photographs, so far as he said:

“You will no doubt realise of course that photographs are a poor substitute for the real thing, seeing someone in the flesh there, if you had been there at Waverton and you had seen the person photographed that is obviously a more satisfactory way of making a comparison. The quality of the photograph, the definition of it are all matters which you should take into account, but it is nevertheless open to you members of the jury to say yes we are satisfied beyond reasonable doubt that that is a photograph of the accused, but I nevertheless warn you of the need to take extreme caution in going through that process”.

53 It was submitted that this direction was inadequate, and came too late, it being contended that a warning should also have been given when the comparison exercise was undertaken. No warning was sought at the time, nor was any redirection sought during the summing up. The appellant accordingly requires leave under R4 of the Criminal Appeal Rules to rely upon this ground. 54 It is convenient, first, to deal with the adequacy of the summing up and with the argument that, in addition to the caution given, his Honour should have warned the jury that a photograph is only two dimensional, and records what a person, who may have been moving his or her features, looked like in the one split second, so that it may not always provide a safe impression of that person’s image. Further, it was submitted that his Honour should have adverted to the circumstance that as the hat covered part of the second man’s head, that made an accurate comparison difficult. Additionally, it was submitted that his Honour should have reminded the jury that they should not be swayed by the fact that the prosecution contended that the man in the photograph was the appellant, since they needed to be satisfied of that themselves. 55 As mentioned earlier, the Evidence Act does call for a specific direction as to the care needed in dealing with identification evidence, as well as an explanation of the reasons for it, both generally and in the circumstances of the instant case. It has been held that this now requires a greater emphasis to be given to the reasons for the warning, and that the Act provides a greater protection against the risk of miscarriage of justice, on this account, than did the common law: Kerryie Ann Clarke. 56   That decision, and decisions such as Davis and Cody and Domican, were concerned with the evidence of eyewitnesses, who claim to have made a direct identification from their own memory and not with a comparison exercise of the kind made by the jury in the present trial, and they are therefore, distinguishable. 57 Nevertheless, there remains good reason why, in principle, a similar warning should be given to a jury invited to make a comparison of the kind that had to be made in the present case. Section 165(1) of the Evidence Act is, in my view, applicable to a case where the central issue is whether the person seen in a video, or a photograph of a crime scene, is the person on trial. The giving of a caution is not confined to the particular circumstances identified in sub paras (a) to (g) of S 165(1), nor does its exercise depend exclusively, upon a party requesting a direction under S 165(2): Lewis NSWCCA 8 September 1998. 58 The power to give a warning concerning evidence that may be unreliable, or concerning the undertaking of an exercise that, in the light of judicial experience, may require special attention or care, continues independently of S. 165. It was that consideration, no doubt, which led his Honour to give the directions that were incorporated in the summing up. 59 The question that arises is whether those directions were “appropriate to the circumstances of the case” and whether they identified “for the benefit of the jury any matter of significance” which might reasonably have been regarded as weakening the value of the photographs or of the comparison exercise - to apply, by analogy the principle expressed in Domican at 561 to 562; and then to inform the jury of the reasons for the need for any caution that was required, both generally and in the particular circumstances of the case. Without an understanding of the reasons for care, and without the benefit of a clear judicial imprimatur, a jury can not be expected to apply a caution, where one is required, full-heartedly, or with a sufficient understanding of it. 60 Neither S 116 of the Evidence Act, nor authority before or since its enactment, call for any particular form of words to be used in the direction. It is true that in Kerrie-Ann Clarke Hunt CJ at CL did observe, in relation to the various inadequacies of the directions there given:

“The judge made no reference to the consequences of the absence of an identification parade. One important consequence is that the accused is not present when the identification is made from photographs as he or she inevitably is in an identification parade, and thus able to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. ( Alexander v The Queen at 400) The judge made no reference to the possibility of a subconscious displacement effect upon Mrs. Smith’s description of the offenders when she came to give evidence. Nor did he explain the inadequacy of photographs by comparison with seeing persons in the flesh. A photograph is only two dimensional, and it records what a person looked like in the one split second when that person may have been moving his or her features, but which in any event may not always provide a safe impression of what that person really looks like when seen in the flesh. ( R v Constantine Carusi (CCA 17 January 1997) at 23 ) The judge did refer to the time which had elapsed before Mrs Smith looked at the photographs, and this was an important circumstance for the jury to consider. He also gave a direction apparently intended to overcome the “rogues gallery” effect of the use of photographs. ( Alexander v The Queen at 409) But that is all. I do not intend to suggest that a summing up will be deficient unless all of the earlier matters are referred to. It is the absence in this case of any reference to any of them which renders this summing up seriously deficient.”

61   These observations were, however, made in the context of an eyewitness who had been asked to make an identification from photographs, that was reliant upon her memory, and in the context of a direction in which there were several obvious deficiencies. His Honour made it clear that he did not suggest that “a summing up will be deficient unless all of the” matters identified are referred to. 62   Each case must depend upon its own facts. It would be reading too much into this passage to elevate it to a universal formula. In the present case, the jury were informed that the fact that “photographs are a poor substitute for the real thing, (for) seeing someone in the flesh”; and were instructed that, if they had been at Waverton and had seen the person photographed, that would have been a “more satisfactory way of making a comparison”. They were also told they needed to take into account “the quality of the photographs and their definition”. This was, to my mind, a perfectly adequate explanation of the difference between a two dimensional picture, and a three dimensional person in the flesh, and a reminder of the need to be careful so far as the image in the photograph may not have been particularly distinct. The fact that the man in the photograph was wearing a hat was clearly apparent to them from the comparison exercise. Moreover they were reminded more than once of the need for the prosecution to prove its case and to do so beyond reasonable doubt . 63   I am, accordingly, not persuaded that there was an insufficiency of explanation as to the need for caution, a need that was expressed more than once, and in explicit terms. I am strengthened in that conclusion by the circumstances that this was a case where the jury had the benefit of a number of photographs, as well as of the videos; and that the comparisons invited were not confined to the facial features of the appellant, but went also to items of clothing and the like, admittedly his, that were remarkably similar to those that were observed by the eyewitnesses, and apparent in the photographs. 64   Additionally, the jury had the benefit of a surveillance photograph proximate to the time of the offence, and of physical descriptions of the second offender which appear to have tallied, generally, with the appearance of the appellant. 65   The case was therefore not one of simple comparison of the facial features of the appellant as he appeared in the witness box with the photographs, although that remained an important part of the exercise required of the jury. 66   The submission that the caution and explanation for it should have had been given at the time of the exercise, and not left until the summing up, needs to be considered in the light of the circumstances that:

a) there was no request for any such caution or explanation while the evidence was being led;

b) the trial was a short trial occupying less than four days, and the summing up was given on the day following the cross examination in question;

c) as the trial revolved upon the single issue whether the appellant was the second offender at the scene of the two robberies, and as the evidence led went almost wholly to that issue, involving either eyewitness descriptions of that person’s appearance, the tender of videos or stills, or of clothing that the Crown contended matched the descriptions given by the witnesses as well as the images captured in the videos or stills, there was no particular point during the trial at which the warning might best have been given.

67 In those circumstances, I am unable to accept the submission that, by the time of the summing up, the jurors would have already made up their minds as to the connection, and that the caution was therefore too late. This submission gives insufficient credit to the common sense and intelligence of the jury, which can be assumed to have accepted the directions given, and to have complied with them. 68 There are cases where it is appropriate to give directions or warnings in the course of a trial, particularly where there is a risk that the jury might attach to a piece of evidence a significance that it does not deserve, or where the use to which it can be put is limited, or where it is applicable to only one accused. That is especially so in the case of a lengthy or complex trial where there is a risk of the caution being lost, or overlooked unless linked to the evidence at the time it was led. The present is not such a case, having regard to the fact that the exercise in question occurred at the very end of the trial, and was followed promptly by the summing up. 69 I am not persuaded that any arguable point or risk of a miscarriage of justice arises in respect of this ground, and I would refuse leave under rule 4. In particular, I am unable to see that any identifiable chance of an acquittal was lost by reference to the matters raised under this ground, let alone a real chance of acquittal: Storey (1978) 140 CLR 360 at 376. The prosecution case was in my view compelling, given the association shown between the two accused, and the photographic evidence linking the appellant with the man in the Akubra hat and with the other items of clothing and tools found at his house.

Ground 3 - cross examination of the appellant concerning the possible alibi evidence

70   When, in the course of the ERISP, the appellant was asked about his whereabouts on the evening of 22 July and 28 July he suggested that probably he was at home (see his answers to questions 87,147, 180 and 181). In relation to the second night, he said that his de facto and a teenage girl Jenny Mapp, would also have been at home (answers to questions 184, 202 and 209). No alibi notice was given, and in chief the appellant did not give any evidence as to his whereabouts on the nights of the two robberies. The ERISP was, however, before the jury and to the extent noted it provided some support for the defence case. 71   In the course of the cross examination, the appellant was questioned in relation to the answers mentioned, and in the course of that examination he confirmed his belief that he would probably have been home at the relevant times, and that his wife would have been there with him. It was at that point that he was asked whether his wife was “coming along to give evidence?”, to which the answer was “No”. 72   The Crown Prosecutor pursued this topic by asking the appellant whether he had discussed that matter with his de facto wife after his arrest:

“Q. I suppose at the first opportunity you said to your wife, “Look, I couldn’t have done this because I was home with you”?
A. Yes.
Q. Well, is that what you asked her? A. Yes, well, she believed that I was home with her, yes.”
Q. So you did ask her, “Tuesday 22 July, do you remember me being at home with you all night?” A. Yes.
Q. “And the following Monday the 28th July, do you remember me being at home with you all night?”? A. Yes.
Q. Did you ask her that? A. Yes.
Q. What did she say? A. Well, she was 90 per cent sure that I was, that I would have been home.
Q. Is she coming along to tell the members of the jury that today? A. No she is at work.”

73   The cross examination then turned to the other potential alibi witness, (Jenny Mapp). It proceeded as follows:

“Q. And she, (Jenny Mapp), would have been at home? A. Yes.
Q. And she would have been able to say you were at home? A. Yes, I would think so.
Q. Did you ask her after you were charged by the police, “Look, do you remember me being at home on these nights?”? A. Well, it was quite some time before I actually got to speak to her.
Q. Did you eventually ask her? A. Well, I made her aware that the police wanted to ask her if she could confirm it.
Q. And she couldn’t confirm it, could she? A. I am not sure.
Q. Is she coming along today to give evidence? A. No.
Q. That she was at home? A. No.
Q. Why not? A. I am not sure. I haven’t seen her.
Q. Have you asked her? A. well she is back in Melbourne at the moment.

74   The Crown Prosecutor returned briefly to the appellant’s wife:

Q. Did you ask your wife would she come along and give that evidence? A. yes, but I - I spoke to my wife about it but she said she could only 90 per cent say that I would normally be home at that time.
Q. She wasn’t prepared to come along and say 90 per cent even? A. Well, I guess if I would have pushed the issue.”

75   At the close of the cross examination the Crown Prosecutor came back to this matter:

“Q. You deny it is you in either of those photographs, you didn’t do these robberies? A. I didn’t do these robberies, no.
Q. You can’t tell the jury where you were? A. I would say I would have been at home. I can’t recall hundred percent so but normally on a weekday, I would be home.
Q. No-one is coming along to court to support the fact that you were at home? A. No, there is only my de facto and my children are too young obviously.
Q. Do you still life with your wife? A. Yes.”

76   There was no objection to any of this cross examination, but in re-examination the appellant’s counsel established that his wife had provided a statement to police that tended to corroborate the answers which he had given to the Crown Prosecutor. The re-examination concerning that statement, and the reason for her absence from the witness box, proceeded as follows:

“Q. She says (in her statement):
“I am not aware of the dates which the two robberies occurred. I haven’t got a clue of these dates so I cannot positively say where Kevin was on these nights. What I can say is that Kevin and I normally don’t go out, particularly during the evening. As I said before, I am normally the last person to go to bed.”
That is your wife’s recollection of events, isn’t it? A. Yes.
Q. And in discussions with my solicitor, because of her answer to the police officer in relation to these matters, you know that is the reason she is not being called, isn’t it? A. yes.”

77 The trial judge obviously entertained some concern as to the manner in which the prosecution sought to use this evidence, by drawing attention to S 20 of the Evidence Act. That Section provides:

“S 20(3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:
(a) the defendant’s spouse or de facto spouse, or
(b) a parent or child of the defendant.
(4) However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto spouse, parent or child failed to give evidence because:
(a) the defendant was guilty of the offence concerned, or
(b) the spouse, de facto spouse, parent or child believed that the defendant was guilty of the offence concerned.”

78   In reply, the Crown Prosecutor made it clear that she would not make any comment in her address, but asked for a Jones v Dunkel direction to be given by his Honour in the summing up. 79   In the result, his Honour did not give a Jones v Dunkel direction, and there was no mention in the summing up of the evidence that had been given by the appellant concerning his whereabouts on the nights of the two robberies, or of the absence of any witness capable of providing him with an alibi. 80   It was submitted that nevertheless, the trial miscarried because of the cross examination, and the implicit criticism, which it carried, of the appellant’s failure to call the two witnesses and of his credibility. Reliance was, in this regard, placed upon the observations of Gaudron ACJ, Gummow, Kirby and Hayne JJ, in RPS 74 ALJR 449.

“In a criminal trial not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor “has the responsibility of ensuring that the Crown case is presented with fairness to the accused” and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”

81   In the same case, Callinan J, said:

“The possible application of Jones v Dunkel to criminal cases requires consideration. In R v OGD , whilst accepting that there are obvious difficulties in some criminal cases in applying that case, and in giving directions to juries in accordance with it, the Court of Criminal Appeal said that a trial judge may nonetheless do so in an appropriate case.
There is no doubt that a direction in accordance with Jones v Dunkel may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown’s responsibility to present its case in a way which is fair to an accused. However such a direction may not be given in relation to an accused person or an accused person’s witnesses who, if the matter were a civil trial might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe Section 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.” (paras 110,111)

82   It was perfectly proper, if not obligatory, by reason of Browne v Dunn (1893) 6 The Reports 67 and the ERISP, for the Prosecutor to cross examine the appellant as to his whereabouts at the time of the robberies and to suggest that he was the second man on each occasion. However, I have reached the conclusion that the remainder of the cross examination, so far as it established that neither the de facto wife, or Jenny Mapp, were going to give evidence, was inappropriate. 83   First, it was the case that no alibi notice had been given, nor had alibi evidence been called. The possibility of an alibi had been hinted at in the police interview, but that was as far as it went. Absent a proper basis for seeking to establish a false alibi, of the kind that may have provided a strand in a circumstantial case, there was no real basis for the Crown ventilating whether or not the defence proposed to call evidence as to the appellant’s whereabouts on the nights of the robberies. 84   No request had been made by the appellant for the prosecution to call his wife or Ms Mapp, in accordance with the decision in Apostilides (1984) 154 CLR 563. Had the Crown wished to call these witnesses, of its own volition, it could have run into a potential problem, by reason of S 18(2) of the Evidence Act which provides:

“(2) A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a defendant may object to being required”
(a) to give evidence, or
(b) to give evidence of a communication between the person and the defendant,
as a witness for the prosecution”.

85 Given the qualified and uncertain answer which the Crown knew the wife had given to police concerning the whereabouts of the appellant, it is unlikely that it could have obtained an order in accordance with S 18(6) and (7) compelling her evidence. 86 As events turned out, the defence were able, in re-examination, to place before the jury the contents of the wife’s statement and an explanation for her absence. Although hedged by a degree of uncertainty, if anything, the statement tended to assist the appellant. Additionally, it provided an explanation for the absence of Ms Mapp that, it may be assumed, would have been regarded by the jury as reasonable, particularly as nothing more was made of this aspect of the case by the Crown Prosecutor or by the trial judge. 87 Although I would regard the cross examination in question as having been inappropriate, I am not persuaded in the particular circumstances of the case, that it involved any unfairness to the appellant, or that there was any tangible risk of a miscarriage of justice associated with it. Rather, it was a matter that, in the atmosphere of the trial, was considered to be unimportant and not a matter that operated to the potential disadvantage of the appellant: Saffron (1988) 17 NSWLR 395 at 434. Since there was no objection to the cross examination Rule 4 of the Criminal Appeal Rules applies. I would grant leave to argue this ground, but would not be satisfied that it was made good.

SENTENCE

88   The appellant also sought leave to appeal against the severity of the concurrent sentences which provided for a period of imprisonment for 7 years and 6 months added to the 8 months pre trial custody, and to an additional term of 3 years and 2 months. 89   It was submitted that the sentences were too severe for offences of the kind before the Court, and that special circumstances should have been found. 90   I do not consider that either submission has been made good. There were a number of circumstances aggravating the objective criminality involved in the two offences:

a) on each occasion firearms were used, a matter of some significance in an assessment of the appellant’s criminality: Readman (1990) 47 A Crim R 181;

b) there were two separate offences, committed a week apart, so that they could not be regarded as part of the same criminal enterprise;

c) both offences involved a good degree of premeditation, and planning;

d) both offences were carried out in company, again a circumstance escalating the criminality involved: Kenny Li NSWCCA 9 July 1997;

e) the victims were vulnerable staff of the State Rail Authority, providing a service for the public at night;

f) the amounts taken were not small;

g) for the victims of each robbery the experience could not have been otherwise than terrifying.

91   Subjectively, the appellant’s position was not favourable, for the following reasons:

a) he had an extensive criminal history dating back to 1985, comprising convictions relating to offences involving the use of drugs, stealing, goods in custody, false pretences, break enter and steal, malicious damage, possession of implements, steal from dwelling and the like, dealt with in the Local Court, mainly by fines and recognisances, but also by a number of custodial sentences;

b) at the time of the offences he was subject to two recognisances to be of good behaviour - a matter that escalated his objective criminality: Doridis NSWCCA 18 December 1986 and Jerrard (1991) 56 ACrimR 297;

c) he was not entitled to the benefit of a plea of guilty, and had shown no contrition for the offences;

d) he was not a young offender.

92   In the circumstances, the case was distinguishable in material respects from the factual circumstances postulated for the guideline judgment in Henry (1999) 46 NSWLR 346, per Spigelman J at 380, involving:

(i) a young offender with no or little criminal history;
(ii) a weapon like a knife capable of killing or inflicting serious injury;
(iii) a limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victims in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken; and
(vii) a guilty plea.

For such cases a range of between 4 and 5 years for the full term was held to be appropriate. However, as Spigelman CJ pointed out:

“Aggravating and mitigating factors will justify a sentence below or above the range as this Court’s prior decisions indicate. The narrow range is a starting point.”

93   The stern stance which this Court expects trial Judges to take in relation to extremely serious armed robberies, into which category I would place the present offences (as did the learned sentencing Judge) has been adequately expressed in decisions such as Broxam NSWCCA 3 April 1986; Roberts (1994) 73 ACrimR 306; Waldron NSWCCA 3 March 1994; and Samuela Antonio [2000] NSWCCA 266. Staff working at night for public utilities such as the State Rail Authority are particularly vulnerable to this form of offence. As such they are entitled to be protected from the activities of gun wielding robbers, and those who choose to venture into such line of activity must expect to receive sentences that carry with them a strong element of general as well as of personal deterrence. 94 The fact that the appellant may have had something of a drug problem provided no excuse for his offences. His Honour expressly took into account the fact that he had made a serious attempt to deal with that problem while in custody, and that his imprisonment was likely to cause some hardship to his family. He did not, however, consider that special circumstances had been shown save so far as the period of pre-trial custody justified a variation in the usual proportion between the minimum and additional terms. 95 I can see no error in that conclusion, having regard to the age of the appellant, his prior record and the other unfavourable subjective matters identified. In particular, the hardship to his family did not constitute that degree of exceptional hardship as to qualify for a reduction in the overall sentence, or for a readjustment of the manner in which it should be served: T (1990) 47 ACrimR 29 and Boyle (1987) 34 ACrimR 202. 96 The sentences were not, in my view, outside the legitimate sentencing range for the serious offences involved, when compared with decisions of this Court such as Bell NSWCCA 11 May 1993. No occasion has been shown for disturbing the findings as to the absence of special circumstances. Accordingly, I would propose the following orders:

1. Appeals against conviction dismissed.

2. Applications for leave to appeal against sentence granted, but appeals dismissed.

3. Convictions and sentences below confirmed.

97   O’KEEFE J: I agree with Wood CJ at CL.

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