R v Merlino

[2004] NSWCCA 104

CITATION:	Regina v Merlino [2004] NSWCCA 104
HEARING DATE(S):	7/04/2004
JUDGMENT DATE:	21 April 2004
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 81; Hislop J at 82
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - 2 counts of robbery armed with offensive weapon - plea of not guilty - whether trial judge erred in directions to jury on circumstantial evidence - whether prejudice caused by trials being run together - whether miscarriage due to jury being made aware that appellant and his alibi witness had been in prison - whether Crown cross examination invited adverse inferences relating to onus of proof and right to silence of appellant.
LEGISLATION CITED:	Evidence Act 1995 - s 103
CASES CITED:	KRM The Queen (2001) 206 CLR 221 at 234 Petty v The Queen (1991) 173 CLR 95 Regina v Anderson [2002] NSWCCA 141 Regina v ITA [2003] NSWCCA 174 Regina v Merritt [1999] NSWCCA 29 at 71 R v Reeves (1992) 29 NSWLR 109 Regina v Zaiter [2004] NSWCCA 35 Shepherd v The Queen (1990) 170 CLR 573 at 585
PARTIES :	Regina Mario Joseph Merlino
FILE NUMBER(S):	CCA 60479/03
COUNSEL:	D M L Woodburne (Crown) H. Dhanji
SOLICITORS:	C K Smith (Crown) S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1177
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

- 24 -

60479/03

WOOD CJ at CL
SULLY J
HISLOP J

Wednesday 21 April 2004

Regina v Mario Joseph Merlino

Judgment

1 WOOD CJ at CL: The appellant was convicted by a jury after a trial before his Honour Judge Robison at the District Court at Penrith, in respect of counts that:

1. On 13 October 2001, at Eastern Creek, in the State of New South Wales, being then armed with an offensive weapon, namely a knife, [he] did rob Stephen Galea, of a sum of cash, one mobile phone, a set of keys and motor vehicle, namely a Hyundai Excel sedan, the property of Stephen Galea; and that
2. On or about 14 October 2001, at Eastern Creek, in the State of New South Wales, being then armed with an offensive weapon, namely a knife, [he] did rob Craig Dayball, of one motor vehicle, namely a Nissan pulsar sedan, one wallet containing a sum of money and personal papers, a mobile phone and phone charger, a set of golf clubs, one halogen light, one briefcase, a number of compact discs and a set of keys, the property of Craig Dayball.

2 The appellant was sentenced on 24 April 2003 to an effective head sentence of eight years with a non-parole period of five years. He appeals against the convictions, but not against the sentence.

Facts

3 The victim of the first offence, Mr Galea, gave evidence that he was robbed at knifepoint of the property in question after he stopped at a red light, at about 7:45 PM on 13 October 2001, at the intersection of Wallgrove Road and the Great Western Highway, Eastern Creek. A male entered the car through the passenger side while he was waiting for the lights to change. That male was described by him as “an unshaven scruffy looking male with black facial hair, aboriginal, in his mid twenties about 5 feet six tall, with short straight black hair wearing a T-shirt”, with skin that was dark in colour, “darker than a tan”. In the split second in which he had to observe the knife, Mr Galea said that it looked “basically like a kitchen knife, a steak knife with a sharp point on it” and with a bit of a serrated edge. The male drove Mr Galeas’ car away in an easterly direction on the Great Western Highway.

4 The victim of the second offence, Mr Dayball, gave evidence that he was also robbed at knifepoint of his property between about 11:45 pm and midnight on the same night. This offence occurred after he had stopped at the same red traffic signal, at the intersection of Wallgrove Road and Great Western Highway, at Eastern Creek.

5 The male who entered the car through the passenger side was similarly described by Mr Dayball as “an unshaven dark skinned male, about 30 years old, of aboriginal appearance with shaved brown black hair, of slim build and about 170 centimetres tall.” In response to a request from the male, who said that he had a problem with his vehicle, Mr Dayball gave him a lift, collecting on the way his female friend who was standing on the side of the road.

6 The male told Mr Dayball that his car was parked about 100 metres before Wallgrove road and asked that he take them there. Mr Dayball was then directed into a poorly lit narrow street (Pikes Lane).

7 Another vehicle, which was described by Mr Dayball as a small white car, either a Hyundai Excel or a Daewoo Lanos, approached them at high speed from behind. Mr Dayball stopped his vehicle and the white vehicle stopped about 1 metre behind them.

8 Both the male and his female friend exited Mr Dayball’s vehicle. The male walked around the vehicle onto the driver’s side, where he stood alongside Mr Dayball. He was holding a 25-30 centimetres long knife with a wooden handle, which had a long blade of about 15 centimetres.

9 He then robbed Mr Dayball of his wallet containing cash and other papers, as well as his mobile phone and phone charger. The male placed all of the items that he had taken into the white vehicle. Mr Dayball saw the female get into the passenger seat of that vehicle. The male then took Mr Dayball’s vehicle leaving him on the street. Both vehicles reversed and drove off back down the street towards the Great Western Highway.

10 Mr Galea’s white Hyundai sedan was recovered by police in the early hours of the morning at Orcan Lane. The appellant’s fingerprints were not found in the vehicle.

11 At about 3:50 AM on 14 October 2001 Police saw Mr Dayball’s Nissan sedan being driven through the bowser section of the Quix Service Station on Popondetta Road at Emerton. The vehicle was followed until it came to a stop at a red light signal at the corner of Popondetta Road and Luxford Road, Emerton. Police arrested the appellant who was driving the car and the female passenger, Levana Miles, who was the appellant’s fiancée. There was another female in the rear passenger seat, Sandra Deigan. She was not charged and police were unable to find her at the time of the trial.

12 The bumbag of Ms Miles was searched and found to contain the mobile phone and charger which belonged to Mr Dayball. A search of the vehicle revealed a knife (which was not fingerprinted) in the driver’s door compartment, the set of keys which belonged to Mr Galea on the floor of the passenger side footwell, and the wallet of Mr Dayball on the back passenger seat, as well as some syringes.

13 The appellant refused to participate in a line up. He informed police, when interviewed, that he and Ms Miles were in the Nissan for the purpose of taking her to a hospital. It was his account that the owner of the Nissan had mistaken her for a prostitute and had tried to “help himself to a free root”. The appellant was photographed after he was charged, but otherwise he exercised his right to silence.

14 The issue in relation to each offence, as was made abundantly clear in the addresses, and in the summing up, was whether the Crown had proved, beyond reasonable doubt, that it was the appellant who had committed the two robberies.

15 Although, as a result of the preliminary ruling by the trial judge, the case was not conducted as one involving coincidence evidence, clearly there was an overlap in the evidence in relation to opportunity, and in relation to the possession of potentially incriminatory objects.

The Crown Case

16 In relation to the first count, the Crown identified a number of circumstances that were relied upon in order to prove that it was the appellant who had robbed Mr Galea of his car and property. They comprised the facts that:

(a) the appellant, as was evident from the photo taken shortly after his arrest, was of an appearance that was consistent with the description given by Mr Galea, and was wearing a T shirt;

(b) the appellant was arrested at 3:50 AM in the Emerton area in Mr Dayball’s Nissan sedan, in which Mr Galea’s keys were found;

(c) a knife was found in the door compartment of Mr Dayball’s vehicle next to where the appellant was seated when he was arrested;

(d) Mr Galea’s vehicle matched the description of the small white vehicle, which Mr Dayball said had come up behind him, in Pikes Lane, when he was robbed.

17 In relation to the second count the Crown identified for the jury the several circumstances relied upon. They included the facts that:

(a) the appellant, as was evident from the post arrest photograph, was consistent in appearance with the description of the robber that was given by Mr Dayball to Police;

(b) the appellant was arrested in possession of Mr Dayball’s Nissan some four hours after its theft;

(c) a knife was found in the door compartment of the vehicle in the compartment adjacent to the appellant.

The Defence Case

18 At the trial, the appellant gave evidence that he had been at his mother’s home at South Penrith, with his fiancée Ms Miles, at the time of the first offence. He said that he and Ms Miles left there at about 8 o’clock, and that he dropped her off at the home of Sandra Deigan, which was not far from the intersection of Wallgrove Road and the Great Western Highway. He then drove to Peter Vatrano’s house at Willmot, arriving there at about 10 PM. He said that he stayed at these premises until around 2 AM, on 14 October.

19 He said that a male person had called Mr Vatrano’s mobile phone at 1:30 to 1:45 AM and advised that his fiancée had been picked up on the highway, that she had been raped and that she had asked for him to pick her up. The appellant said that he informed the caller that he could not do so, because he had been drinking and was not prepared to drive.

20 He said that he had no idea of the caller’s identity, adding that he had not asked him his name, or what injuries his fiancée had suffered. He acknowledged that he had not asked the caller to contact the police, nor had he requested him to take her to a hospital. He also accepted that he has not asked to speak to Ms Miles, even though, he said, he could hear her crying in the background.

21 About 20 or 30 minutes later, he said, he received a call from his fiancée on the same mobile. According to him, she was upset and explained what had happened. He repeated that he could not drive because he had been drinking. She said that she had a car and would get closer to him. They arranged to meet at Willmot Shopping Centre.

22 The appellant then said that he left straight away to meet her and that she was at the Centre waiting when he arrived, 15 minutes or so later. When he asked her whose car it was, she said that it belonged to one of her regular clients from her work as a prostitute on the Great Western Highway, and that that vehicle had to be returned to him by the following morning, before he went to work.

23 He said that even though he knew that she had been raped and wanted to go to the hospital, they spent the next hour or so driving around in order to buy drugs. He said that in the course of doing so, they had picked up Sandra Deigan, and that the reason for driving past the general area of the hospital instead of going there, was to buy some iced drinks at a service station.

24 Mr Vatrano, who acknowledged that he had been a friend of the appellant for over 10 years, and who also agreed that he had consumed alcohol and amphetamines on the night in question, gave evidence that the appellant had phoned him at about 10 PM, and had arrived at his house in his own vehicle at about 10:30 PM. He said that the first phone call was made at about 2 AM and that a male had asked for the appellant, stating that his partner had been assaulted on the highway at Michinbury. He said that he had heard the appellant tell the man that he would be there shortly. The appellant stayed there for another 15 minutes or so, until a second call was received. He said that, on this occasion, he heard the appellant say “I’ll be there as quick as I can”. Upon his account the appellant left on foot, saying that he was going to meet the male person, and his fiancée, at the Wilmot Shopping Centre. When he woke up in the morning he said that the appellant’s motor vehicle was gone.

25 It was the Crown case that the jury would dismiss the alibi evidence as incapable of belief, pointing to the inconsistencies in the accounts which were given to the police and to the jury, and to the inherent incredibility of the version of events which was given at trial. As the Crown pointed out, that version would have involved:

(a) the appellant having ignored the initial request of his fiancée for help, even though she had been allegedly raped, and was audibly upset;

(b) a man who had used the services of a female, who he believed to have been working as a prostitute, on the Great Western Highway, having trusted her to drive away in his Nissan sedan, and having expected it to be returned to him on the following morning; and

(c) the appellant and his fiancée having deferred hospital treatment while they drove around in order to obtain drugs and refreshments.

Ground 1: The trial judge erred in respect of his directions on circumstantial evidence.

Ground 2: The prejudice which flowed from the trials in respect of counts one and two being run together resulted in a miscarriage of justice.

26 When addressing the jury the Crown Prosecutor said:

“Now as I indicated to you at the outset, identification can be proven if you, as the judges of the facts, accept that the circumstances that I’m about to refer to add up to support the fact beyond a reasonable doubt that the accused was the person that robbed both Mr Galea and Mr Dayball.
If you look at both cases separately , but at the end of the day, that’s the issue in relation to both matters, ‘Was it the accused?’”

And, further:

“What the Crown says to you is, there’s a number of pieces – a bit like a jigsaw puzzle and when you put the pieces together the only rational inference you can draw from those – putting the pieces together is that it was the accused that in fact committed both of these offences.”

And finally:

“In conclusion, as I said to you, this is a circumstantial case. The Crown points to a number of circumstances to prove its case and the Crown says when you add up all those circumstances, you would be satisfied beyond a reasonable doubt that this is the person that committed both offences.
The Crown asks you to draw inferences in relation to those particular facts and I’ve already been through them once so I won’t go through them again. What the Crown says is, that the only rational, and once again operative word ‘rational’, the only rational hypotheses is that it is the accused that in fact did both robberies . I’ve indicated to you what the Crown relies upon for counts one and counts two about the circumstances so I won’t go over it again for you.”

27 When dealing with circumstantial proof, his Honour instructed the jury:

“As I said, the Crown relies on what is called circumstantial evidence.
…
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence depending on the nature of the circumstances relied upon when considered as a whole and I emphasise that, ‘when considered as a whole’ because the Crown relies on an accumulation of facts. The Crown does not have to prove every single fact beyond a reasonable doubt but the Crown relies upon the total – totality of those facts and asks you to draw certain conclusions and inferences.”

28 Two particular complaints were addressed, pursuant to these grounds.

29 First, it was submitted that the jury were impermissibly invited to have regard to the facts in support of both counts in determining the guilt of the accused in relation to the individual counts. That was said to arise from the prosecution, in the passages cited, encouraging the jury to take a global approach to the evidence, rather than an approach that focussed upon the evidence that was properly admissible, in relation to each count considered separately. The risk of impermissible reasoning being applied, it was submitted, was then compounded by an absence of any specific direction from the trial judge that there were two separate trials being conducted, or of any direction that the evidence, in respect of the first count, was inadmissible in relation to the second count, and vice versa.

30 In a supplementary submission, complaint was made that a specific warning should have been given to the jury against propensity and probability reasoning.

31 Upon a fair reading of the whole of his address, however, it is clear that the Crown Prosecutor did not assert that there was a single circumstantial case; nor did he seek to rely on tendency or probability reasoning. On the contrary, he went through each count separately, indicating separately the evidence that was available in relation to it.

32 Clearly there was an overlap in the evidence particularly in relation to the finding of the keys, of the first victim, in the vehicle which was being driven by the appellant, at the time of his arrest.

33 In the event of the jury being satisfied that the appellant had stolen the Nissan, then that circumstance could also have properly been taken into account, without resort to coincidence or tendency reasoning, to place him in the general area where the Hyundai offence was committed.

34 The trial judge summed up the case in a way which, clearly and consistently, dealt separately with the two counts, and with an alternative count of stealing a motor vehicle, which was preferred as a back up charge to the second count.

35 In the course of doing so, he separated the strands of circumstantial evidence that were relevant for each count, and nothing was said by him that might have excited probability or tendency reasoning. To have gone any further would, in my view, have risked attracting the very problem of which McHugh J spoke in KRM v The Queen (2001) 206 CLR 221 at 234:

“Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.”

36 It is true that his Honour continued, in that case:

“In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts. Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought. If that occurs, a propensity warning will almost certainly be required.”

37 There was, in the present case, no application for a separate trial in relation to the two counts, and the defendant concedes that it was appropriate that they be tried together. More relevant for present purposes, however, is the fact that the case was one where some of the evidence that was admissible in relation to the second count, for example, the arrival of the white vehicle in Pikes Lane, the finding of Mr Galea’s keys in the Nissan, and the arrest of the appellant while driving the vehicle, was clearly admissible in relation to the first count. In those circumstances a KRM warning would have been potentially confusing, and less helpful than a summing up which specifically identified the individual strands of evidence that were admissible in relation to each count.

38 In my view, the summing up achieved the objective of which McHugh J spoke. The absence of any request by trial counsel, for a propensity or probability (coincidence) warning, or for a KRM warning, indicates that no inadequacy was seen in the directions, in the atmosphere of the trial.

39 The case is one to which the principles discussed in Regina v ITA [2003] NSWCCA 174 apply, and I would refuse leave under Rule 4 of the Criminal Appeal Rules.

40 Next, it was submitted that the directions of the trial judge did not adequately deal with the onus that applies in relation to the proof of indispensable intermediate facts in a circumstantial case, most particularly in relation to the appellant’s possession of the Hyundai keys.

41 In this regard reliance was placed upon the observations of Dawson J in Shepherd v The Queen (1990) 170 CLR 576 at 585, when his Honour said:

“if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond a reasonable doubt”.

42 Additionally, reference was made to the joint judgment of this Court in Regina v Merritt [1999] NSWCCA 29 at 71 to the following effect:

“Having regard to the relatively few incriminating facts in this case, we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict. We do not think that this was a case of such simplicity as to enable a general direction concerning the onus and standard of proof to suffice.”

43 The observations of Dawson J in Shepherd do need to be read in their full context, his Honour having said (at 585):

“The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.”

44 Reference may also be made the judgment of Mason CJ and McHugh J in Shepherd. Mason CJ said, at 575:

“I agree with Dawson J. and McHugh J. that Chamberlain v. The Queen (No. 2) is not authority for the proposition that, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. I am also in general agreement with the reasons given by Dawson J. for the conclusion that the giving of such a direction is not required either as a matter of law or in order to ensure conformity with the general standard of proof in criminal cases.”

45 McHugh J similarly observed, at 592-593:

“Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.
…
Although I think that the majority in Chamberlain intended to assert that an inference of guilt can never be drawn unless each circumstance relied on to found that inference is proved beyond reasonable doubt, it does not follow that Chamberlain is an authority for the proposition that a jury must be directed to that effect.
…
Chamberlain was concerned with whether the verdict of the jury was unsafe or unsatisfactory. It was not concerned with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case.”

46 I am not persuaded that the finding of the keys in the Nissan, and proof that they were in the possession of the appellant was an indispensable intermediate step in the proof of the appellant’s guilt, concerning the first count. This was not a link in the chain case, of the kind considered in Regina v Zaiter [2004] NSWCCA 35, nor was it a case where there was a paucity of evidence of the kind seen in Regina v Merritt.

47 In any event, the direction, which it is now submitted should have been given in relation the keys, to the effect that the jury should have been satisfied, beyond reasonable doubt, that “the appellant had possession of the keys to the vehicle belonging to the first victim, and … that [he] had possession of the keys as a consequence of having committed the first robbery”, would have not only been circular, but also confusing. It would have involved the jury being satisfied, as an intermediate fact, that the appellant had obtained the keys as a result of stealing the Hyundai, whereas the theft by him of that vehicle was the ultimate fact that was to be proved from the relevant circumstances, one of which was the possession by the appellant of the keys.

48 There was also no complaint by trial counsel concerning the directions in relation to circumstantial proof, or in relation to the possession of the items found in the Nissan. Leave is required under Rule 4 of the Criminal Appeal Rules. Since I am unpersuaded that any miscarriage of justice arose, I would refuse leave.

Ground 3: His Honour erred in submitting the photograph of the appellant taken upon his arrest.

49 This ground was not pressed.

Ground 4: The evidence given by the appellant that he had been in jail since the commission of the offence and that his alibi witness was also in jail caused the trial to miscarry.

50 This ground arose out of the circumstance that, in the course of the cross-examination of the appellant concerning his alibi, the following exchange took place:

“Crown: And no doubt when you were interviewed by the police you knew in the back of your own mind that you were with Peter Vatrano the night before?
Accused: yes
Q. Now when did you first go back and see Peter Vatrano about being an alibi for you?
A. I never went back and saw him I was in custody from the very night onwards.
Q. Now just in relation to Peter Vatrano so you had not contact with him for quite some time, is that right?
A. Yeah almost a year.
Q. And then you had a conversation with him about him being your alibi, is that right?
A. Yes - - I didn’t’ actually ask him to be my alibi, he asked me – I was actually in prison at the time on the, being held for this on remand, he came into prison also on remand for something else and he asked me why was I in prison and I explained that it was due to these events, and he said ‘but you were with me at that time’ and I said ‘Yes I was’. And he said ‘Well if you need me to come to court and say what happened, tell’, like you know what I mean, to tell the truth about what happened, ‘I would be prepared to do that.’”

And later:

“Q. And yet you didn't approach him at all for something like a year later?
A. I wasn’t able to approach him, I was in custody.”

51 No application was made by trial counsel for a discharge of the jury, nor was any direction sought, or given, in relation to the disclosure that each of the appellant and Mr Vatreno had been detained in custody.

52 It is now submitted that the evidence of that fact was so highly prejudicial that no direction to the jury would have been capable of disposing of the resulting prejudice and that the jury should have been discharged. Alternatively, if the trial was to continue then, it is submitted, the trial judge should have ruled that the evidence concerning the two men being in custody at the time of their conversation was irrelevant and instructed the jury to disregard it.

53 I am quite unpersuaded that the evidence was materially prejudicial, or that any risk of a miscarriage of justice arose. It was made clear that the appellant was being held on remand in relation to these charges, and that he was not serving a sentence for any other offence. Similarly the appellant made it clear that at the time of the conversation, the custody of the witness Vatrano arose because he was also on remand waiting trial.

54 The jury would hardly have found it surprising that the appellant was detained, pending trial, given the seriousness of the charges. There is, in my view, no sensible basis for supposing that they took that into account as a matter that was unfavourable to his case. Moreover, any direction that was given in relation to these answers, which were volunteered by the appellant, risked bringing greater attention to them, and possibly attracting a significance which they did not otherwise have.

55 The Crown Prosecutor did place the alibi evidence in issue, having regard to its inherent implausibility. He was entitled to explore, both with the appellant and with the witness Vatrano, the circumstances in which, and the time at which, they first discussed this aspect of the case, so as to test their memory.

56 There was no attempt by the Crown to use the circumstance of the detention, either of the appellant, or of the witness, as a matter which of itself, went to their credibility. Had that occurred, then consideration would properly have needed to be given to s 103 of the Evidence Act, and to a direction concerning its possible use. There was no objection to the evidence, nor any request that it be struck out, or that it be limited in some way, for example as a matter not going to character or credibility.

57 I would refuse leave under Rule 4 to argue this ground.

Additional Ground 5 – A miscarriage of justice was occasioned by conduct of the Crown in:
a) cross-examining the appellant in a manner which infringed the appellant’s right to silence;
b) cross-examining the appellant in a manner which suggested the appellant bore an onus to investigate evidence to prove his innocence in a timely fashion;
c) addressing the jury to the effect that an adverse inference should be drawn against the appellant as a result of the evidence adduced as a result of the cross-examination referred to in (a) and (b), above.

58 Leave was sought to rely upon this ground as an additional ground of appeal. It arises out of two aspects of the cross-examination of the appellant as follows.

59 The first segment relates to the following exchange:

“Q. You see when you were arrested by the police in the early hours, about 3:50 am on the fourteenth. Remember you were arrested on the corner -
A. Yes I certainly do.
Q: -- of Luxford Road and – well Luxford Road and Popondetta Road?
A. Yeah, that’s not an incident I would forget very quickly.
Q. And of course you no doubt would have wanted to tell the police that you’re taking Lee to hospital, she’d just been raped?
OBJECTION. QUESTION PRESSED.”

60 After the luncheon break, and after having had an opportunity to consider the question, the objection was withdrawn by defence counsel without his Honour being asked to rule upon it, and the cross-examination then proceeded:

“Q: Sir, before lunch I was asking you questions about your intention to take legal (sic) Lee or Levana to the hospital. Do you recall those questions?
A. Yes.
Q. And of course that was no doubt in the forefront of your mind to take her to hospital at some stage?
A. Yes, it was.
Q. And of course when you were stopped by the police at about 3:50 am on the Sunday morning it was still in the forefront of your mind wasn’t it?
A. Yes.
Q. To take her to hospital?
A. Yes.
Q. Is there any reason why you did not tell the police there and then that you wanted to take her to the hospital because she’d been raped?
A. We were never really given any opportunity to [say] anything to them until we actually got the police station. We were pulled out of the car, thrown onto the ground on our stomachs handcuffed behind our backs, pulled up by two officers at a time and thrown into the back of paddy wagons. I was in total shock so nothing crossed my mind except what the heck was going on.
…
Q. Because as far as you were concerned you were a person aiding a victim of a rape case weren’t you?
A. Yes, yeah
Q. This is when you’re stopped by the police?
A: yeah.
Q. And you wanted to get her to hospital to receive treatment?
A. Yeah, basically, yes.
Q. But you didn’t tell the police about that?
A. No, no.”

61 The second aspect of the cross-examination of the appellant to which this ground relates was to the following effect:

“Q. Sir just ask you (sic) some questions in relation to your friend Peter Vatrano. When did you first have a conversation with him about being your alibi in this trial?
A. When did I first have a conversation with him?
Q. When did you first speak to him about the fact that you needed him to be an alibi in this trial?
A. I never actually asked him to be an alibi in my case at all?
Q. Why not?
A. Because I never did. I wasn’t prepared to call anybody into court unnecessarily.
Q. Well you understand don’t you from the time that you were charged, because you were interviewed by the police about this?
A. Yes.
Q. That the police were investigating allegations of two robberies?
A. Yes.
Q. The first occurred at about 7:45 pm?
A. Yes, yes.
Q. And the second one occurred at about 11.45 or thereafter pm on 13 October weren’t you, you were aware of that?
A. Yes, yes.
Q. And no doubt when you were interviewed by the police you knew in the back of your mind that you were with Peter Vatrano the night before?
A. Yes.
Q. Now when did you first go back and see Peter Vatrano about being an alibi for you?…
A. I never went back and saw him. I was in custody from that very night.”

62 Thereafter followed the evidence which gave rise to Ground 4, and which I have earlier set out, to the effect that a year later Mr Vatrano spoke to the appellant, about the relevant night, while they were both in custody.

63 In the cross-examination of Mr Vatrano it was established that, so far as he could recall, he had last spoken to the appellant in October 2001. Somewhat inconsistently with that evidence, he also said, at one point, that he had spoken to the appellant about the alibi “about a year later”, although at another point he said that he could not recall when that had occurred.

64 The first segment of the Crown address in respect of which complaint is made, arising from this cross-examination was to the following effect:

“Now remember this, the whole time he says ‘I wanted to take her to hospital, she had been raped’. ‘She’s been raped’. She’d been assaulted on the highway. In other words he was the good Samaritan, if you accept his version, about taking her to hospital because she’d been raped. He was concerned about her but yet he doesn’t say anything at all about ‘Look, what are you doing? I’m just trying to take her to the hospital, she’s been raped’. Nothing at all said. We then come to the interview. Once again nothing at all said about the rape.
The Crown would say, that that version just cannot be accepted…”

65 The second segment of the address, of which complaint is made, was to the following effect:

“I’ll then come to now the evidence of Mr Peter Vatrano, the alibi. I’ll call him the alibi. When the accused was interviewed by the police he well knew what the allegations were and you can see the tape. The police said, ‘We are investigating a matter that occurred firstly at 7.45’ and that’s at – well firstly they interview him about the second robbery first. They interview him about main enquiries and concerning a robbery that occurred on the Great Western Highway at Minchinbury about 11.00, 11.45 pm on Saturday, 13 October. He is on notice right from the word go that the police are investigating a matter at about that time.
So when he’s being interviewed, he would’ve had – even if he didn’t say anything which is his right , he would have known his own mind. ‘Gee the police are alleging I’ve done a robbery at about 1:45’. He’d say ‘Well I know where I was last night at 11.45. I was at Peter’s place’. Well what does he do? There’s no discussion with Peter for 12 months, for 12 months and then its only when Peter fronts him.
In other words, this man had the perfect alibi, if you accept his version from the very, very first day and does nothing about raising it with Peter Vatrano. He waits for Peter Vatrano to come to him. Do you think that seems the appropriate action of a person that’s been charged with a very serious matter.”

66 It was submitted that there were three distinct, and impermissible, lines of cross-examination involved in those exchanges in so far as their purpose or effect was to:

(a) invite an inference of guilt adverse to the appellant arising from his failure to give an explanation to police, at the time of his arrest, that was consistent with his evidence at trial;
(b) invite an inference adverse to his credibility as a result of his failure to tell police of an alibi consistent with that adduced at trial;
(c) suggest that there was an onus upon the appellant to act quickly to investigate his alibi.

67 The submissions which were advanced in this respect need to be understood in the light of the fact that when the appellant was interviewed by police at Mount Druitt Police Station, some hours after his arrest, he did put forward the explanation for his presence in the Nissan previously mentioned as follows:

“Q. Can you tell me what the circumstances are of you being in that car?
A. Ah, no. I don't want to actually say anything um, in the interview until I've spoken to the solicitor um, all that I'll say about it ah, the interview at all, is that ah, we were in that car because um, I was taking, or ah, under the um, intention of taking my wife to a hospital um, because um, the owner of that particular car mistook ah, my fiancé for a ah, a prostitute on the highway. And ah, decided to um, help himself to a, a free root, and decided to try and rape my soon to be wife. And ah, all I can say is ah, the putrid little fuck is lucky he’s not fuckin’ dead. And that’s all I’ve got to fuckin’ say.”

68 In my view, the first aspect of this further submission does not reflect the use to which the relevant cross-examination was properly put. As I understand the Crown case, it was available to show the inherent incredibility of the alibi evidence insofar as it was incomprehensible that a person who was engaged in transporting a fiancée, who he believed had been raped, to hospital for medical treatment, in a car which had been borrowed from one of her regular clients, would not have disclosed those circumstances immediately to police when stopped by them, and then sought their assistance.

69 This is not the case of the kind seen, for example, in Petty v The Queen (1991) 173 CLR 95 or Regina v Anderson [2002] NSWCCA 141, where the Prosecution sought, inappropriately, to rely upon the silence of the accused when interviewed by police, or at committal, in order to support an inference that a defence or explanation which emerged for the first time, at trial, was a new invention or was suspect.

70 On the contrary, the present is a case where silence of the accused at the point of arrest was inconsistent with him having been on a genuine mission, in a borrowed motor vehicle, to secure help.

71 Moreover it was not a case where the Crown sought to draw an adverse inference from the fact of initial silence, followed by the presentation at trial of an explanation or defence. An explanation was given during the police interview, which occurred within a few hours of arrest, which was not wholly consistent with the applicant’s evidence at trial.

72 In those circumstances, the case does not fall within the Petty principle, and there was nothing unfair or erroneous in the cross-examination, or in the way that this aspect of the case was left to the jury.

73 I am similarly unpersuaded that the cross-examination, or submissions of the Crown, in relation to the alibi, infringed the appellant’s right to silence.

74 The alibi directions that were given were impeccable, and dealt specifically, and appropriately, with the onus of proof. Additionally His Honour and the Crown Prosecutor in the passage cited, each made it clear to the jury that the appellant was entitled to exercise his right to not answer any further questions that were put to him by police during the interview.

75 It was next submitted that the directions given were inadequate and that error occurred, so far as the jury were not cautioned when the evidence was called or during the summing up, that the exercise by an accused of the right to silence must not lead to any conclusion of guilt, in the terms held to be appropriate in R v Reeves (1992) 29 NSWLR 109. In fact a specific and adequate direction was given by his Honour during the evidence of Detective Sergeant McGee, at the time that the ERISP was tendered.

76 I also do not consider that the cross-examination or the address of the Crown prosecutor conveyed a suggestion that the appellant had an onus to act quickly to investigate his alibi. Neither the Crown nor the trial judge said anything to expressly raise that as a possibility, and for the jury to have drawn any such inference would have involved a remarkable leap in reasoning.

77 As I have observed there was no objection to any portion of the cross-examination, other than the one objection that was withdrawn; nor was any additional direction sought in relation to the way in which the Crown address or the trial judge summed up.

78 The appellant also requires leave to raise this further ground. The case is not one where any evidence has been placed before us to suggest, on the one hand, that there was incompetence on the part of trial counsel, or on the other hand, that the absence of any objection, or request for some additional direction, was attributable to a tactical decision. It is also a case where his Honour expressly invited counsel, at the close of the addresses, and again at the end of the summing up, to identify any particular direction which they sought. None was sought and no complaint was made in relation to any aspect of the summing up, let alone that sought to be advanced in support of this ground.

79 The Crown case was a strong case, and none of the perceived deficiencies was such, on my assessment, as to give rise to any miscarriage of justice. As with the other grounds, I would refuse leave under Rule 4.

80 Accordingly I would propose that the appeal be dismissed.

81 SULLY J: I agree with Wood CJ at CL.

82 HISLOP J: I agree with Wood CJ at CL.

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Last Modified: 04/22/2004