R v Lee

[2000] NSWCCA 392

CITATION:	Regina v Lee [2000] NSWCCA 392
FILE NUMBER(S):	CCA 60650/99
HEARING DATE(S):	Wednesday, 13 September 2000
JUDGMENT DATE:	10 October 2000
PARTIES :	The Crown Nathan Lee (Appl)
JUDGMENT OF:	Newman J at 1; O'Keefe J at 84; Whealy J at 85

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0460
LOWER COURT JUDICIAL OFFICER :	Davidson DCJ

COUNSEL :	L M B Lamprati (Crown) J W Fliece (Appl)
SOLICITORS:	S E O'Connor (Crown) Patricia White & Associates (Appl)
CATCHWORDS:	CRIMINAL LAW - assault with intent to rob - identification - Evidence Act ss 116, 165 - directions as to identification - sentence - special circumstances
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	Domican v R (1992) 173 CLR 555 R v Heuston (1995) 81 A Crim R 387 R v Davies & Cody (1937) 57 CLR 170 at 182 R v Clarke (1993) 71 A Crim R 58 at 72 R v Pitkin (1995) 130 ALR 35 R v Lee, unreported, NSWCA, 24 March 1997
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60660/99

NEWMAN J
O’KEEFE J
WHEALY J

TUESDAY, 10 OCTOBER 2000

REGINA v Nathan LEE

JUDGMENT

1    NEWMAN J: This is an appeal against conviction and an application for leave to appeal against sentence.

2 The applicant was indicted before Davidson DCJ on 28 July 1999 at Sydney on a charge of being armed with a dangerous weapon, namely a firearm and assaulting Patricia Edith Jones with intent to rob her. The maximum penalty for the crime pursuant to s 97(2) of the Crimes Act 1900 is imprisonment for twenty-five years.

3    The appellant pleaded not guilty but after a lengthy trial was found guilty by a jury of the offence. His Honour imposed a head sentence of eight years constructed by way of a minimum term of six years and an additional term of two years.

Evidence for the Prosecution

4    At about 8.15 pm on 21 March 1995 two men entered Mrs Patricia Jones’ video store at 108 Oxford Street, Paddington.

5    Mrs Jones gave evidence that she was sitting on a stool watching television when the two men entered her shop, one behind the other. She said it was a quiet night at the shop and there were no other customers present at the time.

6    Mrs Jones described the lighting in the shop. She said that there were about sixteen small globes at a window and three fluorescent tubes on the right hand side and the left hand side of the shop respectively. She said that there was an overhead light which was directed towards the new issued videos which were behind the counter. She said that there was a globe light in the counter and a single light in the foyer.

7    She described the man in front of her as of Asian appearance and the man behind him as Caucasian. The Asian man went to where the cash register was and stood behind it. She stood up. The Asian man produced a gun and pointed it at her. It was in his right hand. She saw it was a small gun and had some wood on the handle. She said he mumbled something to her like “money”. She immediately picked up the tape dispenser from the desk and threw it at him. As it did not seem to have any effect on him she reached down and picked up scissors but decided to drop them. Instead she picked up her stool and jabbed across the counter at the man. However, the stool did not come in contact with him as he had stepped backwards. She then took the stool and started walking towards the end of the counter. She heard him screaming at her and saw he was pointing his gun at her and making a motion with his hand, but nothing happened. He then made a downward motion and the gun discharged. She was not sure whether he was making one or two downward motions at that time. She smelt gun powder. It burnt her nostrils and there was a period when she was deafened and blinded by the discharge.

8    Mrs Jones said that at the time the Asian man was pointing the gun at her she was about three or four feet away from him. She saw him trying to lift the cash register off the counter with a jerking movement, but he fell over. She then swung the stool and hit him with it. She kept hitting him until he left the shop. She then closed the door behind him and rang the police.

9    She recalled that when she was throwing the tape dispenser at the Asian man she could no longer see the Caucasian man. She said that she could not see the Caucasian man “fully”. She said he was wearing a short white sleeve shirt with a brown pattern or panel across his shoulder. His hair was fair, light brown or ash blonde. It was about shoulder length and wavy.

10    Mrs Jones said the Asian man was wearing a black long sleeve jacket. He had black medium hair that went to about his earlobes. He had a round full face and hooded eyes. He was around five foot ten with a stocky build.

11    Mrs Jones rang Paddington police station and talked to a police officer who sounded like a female to her. She told her the man in her shop was an Asian. She said that she may have said that he had shortish hair down to his ear lobes and his hair was black. He was wearing a black long sleeved jacket. He had hooded eyes.

12    Mrs Jones said when she was hitting the Asian man with the stool his jacket came down. She saw he was wearing a sort of like light blue or bluey-green coloured T-shirt underneath his jacket. She said that she was blue/green colour blind as she could not tell whether it was blue or green when the colours were very light or very dark.

13    Mrs Jones said that she was shown a gun when she was at the police station. She said that it looked about the same size as the gun that was pointed at her in the shop. It had wood on its handle. She said that on 22 March 1995 Det Sharpe visited her and showed her a number of photographs. She wrote on the back of one of the photographs “I think this is him” in identifying the appellant.

14    On 23 March 1995 Mrs Jones was cleaning her shop with her brother-in-law, Brian Ellis. She found the perspex shelving of the new release section had a hole in it and the covers behind it had pieces missing. She said that Brian Ellis found a piece of metal in the garbag bin. It was a squashed looking piece of metal and she gave it to the police. She said that prior to this attempted robbery she had no knowledge of any other gun having been fired in her shop.

15    She was shown a photocopy of the photograph of a Mr Mounarath and asked how he compared with the man who pointed a gun at her in the shop. She said “the hair is different, the hair line, the face is - while round and full - a different shape, the lips are fuller, the nose is different.”

16    In re-examination she said she was wearing her glasses at the time of the attempted robbery and she had no difficulty in seeing the face of the man that was pointing the gun at her.

17    Mr Malcolm MacMillan gave evidence that at about “five, ten past eight” on 21 March 1995 he was waiting for his bus at the army barracks side of Oxford Street. He heard the voice of a woman shouting: “No, no. Get out” from the video shop directly opposite him. He said the lighting outside and inside the shop was very bright. He estimated the distance between him and the front of the shop would be between 25 to 30 metres. He saw a woman with a chair or a small coffee table trying to hit someone over the head.

18    There was another person who could have been a Caucasian standing behind the person whom the woman was trying to hit. He said that the Caucasian person had “reddy-brown” hair, and was about “five-seven to five nine”. He was medium to average build. His hair was “longish, unkempt sort of fluffy. He was wearing funny trousers as if he came out of Aladdin’s lamp”. He wore a yellowish and dark bony coloured sort of T-shirt. He saw him backing out and leaving the shop.

19    Mr MacMillan saw the Caucasian person turn left and go towards Glenmore Road. He was walking “normally” towards the traffic lights there. He said when he was about midway he came back to the shop and tapped at the window. He then headed back to Glenmore Road.

20    Mr MacMillan further gave evidence that the man who was hit by the woman in the shop came out about “10, 15” seconds after the first man left. He saw the door of the shop close almost immediately after he had left. He described that man as Asian. He was a little bit taller than the first man and would have been five-nine in height. At this time Mr MacMillan’s bus had arrived. He recalled it was fairly quiet at that time of the night and he did not notice anyone in particular.

21    He said both men would have been in their 20s. The Asian man had very black hair. It was a little longer than average. He was wearing a dark jacket with a white T-shirt or shirt. He was wearing normal trousers. He saw him leave the shop and turn right, then right again down to Hopewell Street. He was “walking smartly”.

22    Mr MacMillan said on 23 March 1995 he was shown nine photographs of Asian men by Det Pooley. He wrote on the back of one of the photographs “I’m 95 percent sure that is him” in identifying the appellant.

23    In cross-examination he said he had told the police that he thought a line-up would be a lot easier. He said that because a photograph did not indicate how tall the people that he was being asked to look at were. He said that when he had seen the Asian man coming from the shop he had seen him in a space of about five or so steps from the video shop out on Hopewell Street. He agreed that his sighting of the Asian man was for a fleeting moment. He said, however, he had a very good head-on view of him when he came out of the shop which he did not do quickly. He said he saw him head-on for eight to nine paces and that it was on that observation that he gave his description to the police and on which he was relying on when he looked at the photographs. He said that he only saw the writing (by Mrs Jones) on the back of the photograph when he was writing on the back of it, not before. He did not inadvertently turn over the photograph when he was looking at it. He denied that Det Pooley had said to him, or indicated to him, that this was the man that he had in his custody or anything like it.

24    In further cross-examination he was shown a photocopy of the photograph of Mr Mounarath and was asked whether that was the man who was seen leaving the video shop on 21 March 1995. He said “I didn’t think so, no”. In re-examination he said he had not seen the man in that photograph before the incident.

25    Snr Const Stone of the Fingerprint Section gave evidence that he had examined the cash register from the video shop but could not find any fingerprints there.

26    Mr A Dilorenzo gave evidence that in March 1995 he was a constable at Waverley police station. He said that at about 8.19 pm on 21 March 1995 he was patrolling Bondi Junction in company with Const Murchie, when a call came over the police radio to attend the video shop at the intersection of Oxford and Hopewell Streets, Paddington in relation to an armed hold-up. They went to the shop and obtained a description of the two offenders from the police who were already there. They left after 30 seconds.

27    At about 8.25 pm while they were patrolling in Kings Cross Road, he noticed an Asian male in company with another male person. They were seen heading in a westerly direction in Kings Cross Road, approximately 20 metres east of Darlinghurst Road. He said they then stopped their car and followed the two men on foot. Later the two men separated and Const Murchie stopped the other man while he continued to follow the Asian man.

28    When he was about five metres behind him he pulled out his police identification badge and called on him to stop. When he approached the Asian man he noticed that he had sweat running down his face and that his blue T-shirt was damp and was clinging to his body. He said to the Asian man, “why are you so sweaty?” and he replied, “it’s hot”. He noticed that he had a large bulge in the front of his jeans. He asked “what is that in your jeans?” and he replied, “nothing”. He searched and removed from him a dull silver coloured hand gun with a brown wooden handle. He found the hand gun had cartridges in the barrel.

29    He then radioed for other police assistance. At approximately 8.30 pm Consts West and Pascoe arrived. They took the Asian man to the rear of the caged truck. He was arrested and was given the caution. He said, “yeah, but two others did the hold-up, and they ran out and gave me the gun”. While he was at the rear of the caged truck he was further searched by Const Murchie in his presence.

30    Const Dilorenzo saw a dark coloured leather holster found down the front of the Asian man’s jeans. He said that at the time of the incident the Asian man was wearing blue jeans, a blue T-shirt and white joggers. He had a black leather jacket in his right hand. He also had a black leather bum bag around his waist.

31    Snr Const Murchie gave evidence that he took hold of a Caucasian man whom he ascertained later to be Romeo Calin. He said that he saw the Asian man stopped by Const Dilorenzo. He saw that man was sweating profusely and the pale blue T-shirt that he was wearing was wet and clinging to his body.

32    He said that while he was at Paddington police station the Asian man told him “it wasn’t me who did the hold-up. I just got given the gun. There were three of us. I waited outside whilst the other two went in the video shop. They came out and gave me the gun and said to hide it. They jumped into a yellow hatchback, a Suzuki maybe. It was parked around the corner. They took off before I could get in the car. I walked to the Cross after that”.

33    He told him one of the men was a Steven Jung, an Asian. He had short black hair and he was about 25 to 30 years old. He was wearing a black jacket and pants. He only knew the first name of the other man as Peter. He described Peter as an “Australian, about 25 to 30 years old, wearing a blue top and coloured pants. He had blonde short hair with a goatee. He was about 180cm tall and of medium build.” In cross-examination Snr Const Murchie said Romeo Calin was not one of the persons described by the Asian man.

34    Det Pooley gave evidence that he conducted a record of interview with the appellant on 21 March 1995. In relation to the offence, the appellant said “well, I was outside and - we were - we were driving around at first, right, in this yellow hatchback or a Suzuki, I’m not too sure and we came to this place on Oxford Street and this - all three of us got out and these two guys walked in and they came running out and one of them handed me that” (the gun).

35    Sgt North gave evidence that in 1995 he was attached to the Forensic Ballistics unit. On 24 March 1995 he received from Det Pooley one .22 calibre Italian manufactured 8 chambered revolver, one spent lead bullet, one .22 calibre Winchester fired cartridge case and two .22 calibre Winchester cartridges. He found the revolver to be in working order and capable of propelling a projectile by means of an explosive, which could inflict a lethal wound on a human being. However, the discharge of the weapon was spasmodic because of free play in the cylinder and wear of the die cast metal trigger mechanism. The cylinder was not indexing correctly, that is when the cylinder was rotated, the next cartridge to come around would not line up exactly with the axis of the barrel. In this case when it was discharged it shaved approximately a quarter of the bullet away because it was not lined up correctly with the barrel. He said the revolver was originally designed to discharge 6mm blank fire cartridges and it was formerly a blank fire firearm as defined under the Firearms Act. He said there was a fine firing pin impression on the head of each of the cartridges. It indicated at some time an attempt had been made, albeit unsuccessful, to discharge those cartridges.

36    Ms Sofia Beckett, solicitor, who had been acting for the appellant gave evidence that the appellant swore an affidavit in March 1996. It read:

“I, Nathan Lee, instruct my legal representative to inform the Court of the matter set out below. I confirm that my instructions that my involvement in this offence was only as an accessory after the fact. I am now in a position to state that the offender with the gun was a man named Vongsathit Mounarath who is currently at Long Bay Remand Centre.”

37    Mr Vongsathit Mounarath gave evidence that he had not met the appellant before August 1995. He did not go to the video store on Oxford Street and point a gun at a person inside the store. He had never used the name “Steven Jung”. He was shown exhibit 14 and he said it was him. He said he never associated with someone called Peter who was an Australian, about 25 to 30 years old, with blond short hair and a goatee, about 180 cm tall, and medium build possibly living at Bondi. He denied that he had told the appellant that he had committed attempted robbery in a video shop.

38    In cross-examination it was put to him that he had a conversation with the appellant about identifying him (Mounarath) being involved in the entry to the video store and that he had said “yes, go for it”, he replied “… I don’t remember saying that, I might have … but if I did, I think I would be stupid to put myself in that situation.” He said that he had been convicted of armed robbery in 1995. He said he knew a man by the name of Pailin Ung but did not know whether he was also known as Steve.

39    Pailin Ung gave evidence that he was also known as Stephen. He said he was in custody on 21 March 1995. This was confirmed by Mr N Guy from the Corrective Services department who gave evidence that Pailin Ung was in custody on 21 March 1995 for the whole of that day. He knew the appellant, having first met him in 1996. In cross-examination he said he did not on 21 March 1995 take part in the assault of a video store in Paddington and afterwards take the weapon, or a weapon with a likeness to that which was shown in the photograph, exhibit 10, and hand it to some other person outside the store. He was shown exhibit 14 and was asked whether he knew the person depicted. He said that it seemed like someone he met while he was in custody back at the time in Long Bay gaol, his name was Loa. He thought that his surname was Mounarath. He said the gun depicted in exhibit 10 did not belong to him and he had never seen it.

40    Det Snr Const Sharpe gave evidence that on 21 March 1995 after returning from the video store he saw the appellant at the police station. He said, “you fit the description of the guy who had the gun, we’ll have to arrange a line-up, is that all right?” The appellant said, “yeah, I didn’t do it”. He said that on 22 March 1995 he went with other police to the video shop and showed Mrs Jones nine photographs of Asian men. She looked through them and said “that one”. He asked “is it definitely him?” and she said “from what I can remember panic line I’d say yes”.

41    In cross-examination Det Sharpe said that after viewing the photographs, Mrs Jones wrote on the back of the photograph of the appellant, “I think this is him” and then signed it. In relation to the words “panic line” Mrs Jones said when she was identifying the photograph of the appellant, Det Sharpe said, “it might be ‘panic line’ or ‘panic blind’.” After his identification of the appellant Mr MacMillan, wrote on the back of the photograph, “I am 95 percent sure that is him”. In further cross-examination Det Sharpe denied that he had said to Mrs Jones “this photograph is the man we have in custody. Is this the man who came into the store?”

42    Det Marsden gave evidence that on 24 March 1995 he placed the Olympic brand pistol, the two live .22 cartridges, the one spent .22 cartridge and the holster into a super glue tank. He said “there were no fingerprints developed that would be identifiable and there were only partial marks and fragments developed on the items.” No fingerprints were obtained from the wooden handle of the pistol. He said someone with very sweaty hands would actually leave more smudge sweat marks rather than nice, clear fingerprints.

The appellant’s reply

43    The appellant did not give or call any evidence at the trial but a photograph of himself was tendered during cross-examination of a crown witness.

44    The defence challenged the identification evidence given by Mrs Jones and Mr MacMillan on the basis that their identification was mistaken.

45    I turn then to the appeal against conviction. The sole ground of appeal was that the trial judge’s directions regarding identification evidence of Mrs Jones and Mr MacMillan were inadequate and a miscarriage of justice was thereby occasioned.

46    In the course of his summing up his Honour gave detailed directions as to how the jury should approach the evidence of Mrs Jones and Mr MacMillan in relation to their purported identification of the appellant. Those directions were not challenged by the appellant and have been accepted as being correct and in appropriate form.

47 Indeed, his Honour’s original directions on identification were in conformity with sections 116 and 165 of the Evidence Act 1995 and also complied with the concepts adumbrated in R v Heuston (1995) 81 A Crim R 387 and Domican v R (1992) 173 CLR 555. There is thus no need to reproduce those directions in these reasons.

48    However, before completing his directions his Honour, in accordance with the current practice, allowed the jury to go home at 4 pm.

49    The next day, following discussion with counsel in the absence of the jury, his Honour gave further directions. Those directions involved his correcting certain parts of his summing up and then giving some further directions concerning the identification evidence. No challenge has been made to the corrections then made by his Honour but it is the further directions he then gave regarding identification evidence which are the subject of this appeal.

50    His Honour directed the jury as follows:

“The next matter that I want to deal with is a summary of the relevant asserted weaknesses of the identification process revealed in the evidence in this case limited to what I regard as the principal matters which appears to be relied upon on behalf of the accused. First of all there was no identification parade and it is common ground in this case that that is the best method to be used in situations such as these.
Secondly as to the photograph, the accused obviously was not present when the witnesses Mrs Jones and Mr MacMillan were shown the photographs as he would have been on an identification parade, and hence he was not able to see the process for himself. As to the photographs again attention was drawn to the small sample of persons with what might be described as roundish fattish faces as opposed to lean faces. Still on the photographs the danger of the displacement effect is relied upon. That is to say that a witness having seen a photograph may unconsciously displace his or her mental image of the person he or she saw at the time of the offence with the mental image obtained when the photograph was seen.
Counsel for the accused submitted to you that this explains why Mrs Jones, in her description in written statements made after she had seen the photographs, mentioned for the first time hooded eyes and a black jacket and that the T-shirt which she had previously mentioned was dark in colour, she not having referred to any colour at all previously. She on the other hand, I remind you, says that she gave a full description mentioning hooded eyes and the black jacket to the female she spoke to immediately after the event at Paddington police station. There is however, no written record of such a conversation.
Counsel for the accused also relies upon the limited time which both Mrs Jones and Mr MacMillan had for observation. Mrs Jones was subject to a traumatic incident during which she was blinded by the discharge of the gun and also during which, for part of the time, the man was face down on the floor. Mr MacMillan’s observation was for, as he described it, a fleeting moment from across the road from the video shop, over the distance from coming out of the shop as he described it in his evidence to the corner of Hopewell Street where the man disappeared out of sight. And of course reliance is also placed on the qualified endorsements which appear on the back of the photograph in each case. Mrs Jones writing “I’m ninety-five percent sure that is the man”.
Finally, reliance is placed on the manner in which Mr MacMillan identified from the photographs, that is to say relying to a very large part on clothing which most closely matched the description given by him of the clothes worn by the Asian person he saw coming out of the shop.
Those are the further directions that I propose to give you and do give you members of the jury.”

51    The first submission made on behalf of the appellant was that the additional directions created an unfairness to the appellant in that they were said to be provided to the jury as a summary of the weaknesses relied upon by the defence. They were not provided at the same time as the important cautions regarding identification evidence and were not given with the imprimatur of the trial judge in the same context as the earlier directions.

52    It is not sufficient for the judge simply to repeat as such the arguments which counsel have put. See Domican. Furthermore in R v Davies and Cody (1937) 57 CLR 170 at 182 the High Court stressed that it was necessary for the judge to give “the weight of his judicial authority” to the warning as to the dangers involved in identification. See also Heuston (1995) 81 A Crim R 387 at 394. See also Clarke (1993) 71 A Crim R 58 at 72.

53    In Domican, the High Court at 561 said as follows:

“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.”

54    In Davies and Cody at 182-183 the High Court, in dealing with identification evidence, observed as follows:

“As the responsibility of convicting must rest with the jury their appreciation of the question is an important consideration, and in a case where the method of identification is open to the objections we have discussed, they should be clearly warned of the dangers, which according to the accepted view, do exist.
In the present case, we think that the observations of the learned judge do not amount to a fulfilment of this requirement. Following the view apparently prevailing in the Supreme Court of Victoria, he treated the matter as one depending upon a choice between rival systems, between different ‘schools of thought’, and did not give the weight of his judicial authority to a statement of the dangers which beset the method in fact adopted, and he did not fully explain those dangers. His direction cannot be described as a warning.”

55    In my view his Honour did not fall into error in making the additional directions which are the subject of challenge. Those directions were in addition to the entirely proper directions he had given the previous day in which the jury were clearly warned as to the dangers which existed in dealing with identification evidence.

56    The language used by his Honour in the additional directions did not constitute a mere reference to counsel’s arguments. What his Honour did was to point to the matters which had been raised as weaknesses in the identification evidence and put them squarely before the jury.

57    These further directions did not in any way cut down the force of his earlier directions on identification but in fact, underscored them by demonstrating to the jury the factual issues which had been raised by the defence in relation to the identification evidence. Accordingly, I am of the view that this first argument does not succeed.

58    Second, it was argued that when both Mrs Jones and Mr MacMillan purported to identify the appellant when shown photographs by the police, their identification of the appellant on that occasion did not amount to a positive identification.

59    In particular reliance was placed upon what both these witnesses had written on the back of the photographs of the appellant which they had selected as depicting him. Mrs Jones had written “I think this is him” and Mr MacMillan had written “I am 95 percent sure that is him”.

60    It was submitted that this mode of identification was similar to that which had been the subject of review by the High Court in R v Pitkin (1995) 130 ALR 35. In Pitkin a witness to the crime in question had, like Mrs Jones and Mr MacMillan, been shown photographs. When selecting the photograph of the accused in Pitkin the witness said, “this looks like the person” at 37.

61    The High Court observed:

“Obviously the fact that an accused person looks like a person who in fact committed a crime is of itself insufficient to ……… a conviction of that accused of the crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that.” (at 37)

62    And:

“Under our system of administrating criminal justice a person is not to be convicted of a serious crime on the sole basis of verbal ambiguity.” (at 39)

63    In the present case a challenge was in fact mounted by defence counsel to the admission of the very evidence of Mrs Jones and Mr MacMillan which is now the subject of challenge in this appeal.

64    A voir dire examination was held. His Honour in a considered judgment allowed the evidence to be given. No challenge has been raised in this appeal to his Honour’s ruling. However, even putting that important consideration to one side, in my view the identification from the photographs made by Mrs Jones and Mr MacMillan does not suffer from the defects exposed by the High Court in Pitkin.

65    Mrs Jones’ evidence as to her identification of the appellant, in chief, was as follows:

“CROWN PROSECUTOR: Q. Were you given some photographs?
A. I was
Q. What did you do with the photographs when you were given them?
A. I looked at them. I separated some.
HIS HONOUR: Sorry?
A. I separated some of the photographs out until I got to the one of my assailant which I recognised immediately and threw it onto, placed onto the brief case that was on the counter and said, ‘that’s him’.
CROWN PROSECUTOR: Q. Once you said, ‘that’s him’, what happened them?
A. They asked me to write in my own words on the back of the photograph.
Q. Did you do that?
A. I did.
Q. At the same time you wrote on the back of the photograph, was there anything on the back of the photographs?
A. No.
Q. What did you write on the back of the photograph?
A. I either - ‘I think this is the man’. I might have written, ‘I think you’ll find this is the man’. I think, no, I think I wrote, ‘I think this is the man’.”

66    Later, the following exchange occurred between herself and the Crown Prosecutor:

“Q. Do you recognise any of the photographs?
A. I recognise the photograph of my assailant.”

67    She did not resile from that evidence in any way.

68    Mr MacMillan’s evidence as to what occurred when he was shown the photographs by the police, in chief, was as follows:

“Q. Did you finally select a photograph?
A. I did, yes. I thought I was taking a little - but I didn’t know how long sort of I was expected to take. I thought I say taking too long and I said, ‘I’m sorry I’m taking so long’ and that sort of thing. He said, ‘don’t worry’ just you know, but initially I picked one almost immediately. I was just re-affirming with myself that’s all.
Q. The one you selected, was that the one you referred to --
A. Yes.
Q. -- that you picked in your mind almost immediately?
A. Yes, yes.”

69    Again, Mr MacMillan did not resile from that evidence in cross-examination.

70    In any event, the statement that a person is 95 percent sure that the person depicted in the photograph was the person he saw at the scene of the crime is far distant from a statement that somebody in a photograph “looks like” a person they saw which was the subject of the High Court’s decision in Pitkin.

71    In my view the admission of the evidence of Mrs Jones and Mr MacMillan did not constitute any miscarriage of justice and the jury were entitled to take that evidence into account when dealing with the question of identification. I am of the view that this argument also fails.

72    It follows therefore that I am of the view that the appeal against conviction must also fail.

73    I turn then to the application for leave to appeal against sentence.

74    No challenge was made to the head sentence of eight years. Indeed, when this matter was before this Court on an earlier occasion, R v Lee, unreported, NSWCCA, 24 March 1997, this Court observed that the sentence passed by the original trial judge, Saunders DCJ was plainly within the range.

75    What is argued is that his Honour should have found special circumstances and adjusted the proportion between the minimum and additional terms imposed so that the additional term would be longer and minimum term shorter.

76    His Honour did deal with the question of special circumstances. In fact he took into account, in imposing the head sentence, the fact that the appellant would have to serve any sentence in protective custody with its attendant hardships.

77    However, he specifically found that there were no special circumstances which required the proportion between the minimum and additional terms to be adjusted differently from the statutory ratio set by the Sentencing Act as it then stood.

78    Two arguments were advanced in support of the proposition that the minimum and additional terms should be varied in the manner suggested.

79    First, the fact that the appellant had to serve his sentence in protective custody. Second that his Honour did not give proper weight to the material contained in the report of the psychologist Anna Robilliard.

80    The first argument must fail because as this Court held in S, unreported, NSWCA, 24 February 2000, it is improper to allow the hardship of protective custody to operate as a reason for discounting the total sentence and as constituting special circumstances for reducing the minimum term as a proportion of that head sentence.

81    As to the second argument his Honour did deal, in depth, with the psychologist’s report. He concluded as follows:

“The psychologist in her conclusions describes your evolution from a negative, angry and depressed young man, to a more mature, positive and rational adult, which of course is consistent with the reported development of your significant insight into the circumstances and consequences of your drug habits.
Other material before me from the prison testifies that you have been putting your time in prison to good and constructive use. You have undertaken two courses at a tertiary level, and you have taken a significant part as editor and contributor to the Remand Centre magazine.
All of that indicates to me that your prospects for rehabilitation are good, and that you do not need - as submitted to me by Mr Brezniak on your behalf - an additional period of probation in the form of an increased additional term in order to promote your further rehabilitation.”

82    In my view his Honour made no error in determining the structure of the sentence. He did so having taken into account the appellant’s prospects of rehabilitation. Accordingly, while because of its importance to the appellant, I would grant leave to appeal on sentence, I would dismiss the appeal.

83    The orders I propose are as follows:

1. Appeal against conviction dismissed.

2. Leave granted to appeal against sentence but appeal dismissed.

84    O’KEEFE J: I agree with the orders proposed by Newman J and with his reasons.

85    WHEALY J: I agree with the reasons of Newman J and the order he proposes.

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