R v Nylander

R v NYLANDER
[2003] SASC 191
Court of Criminal Appeal: Prior, Bleby and Sulan JJ

PRIOR J: I agree with Justice Bleby. The appeals against conviction should be dismissed. The appeal against sentence should be allowed and a sentence of 26 years imprisonment with a non-parole period of 20 years substituted for that imposed by the single Judge. The substituted sentence and non-parole should date from 20 September 2000.
BLEBY J:
Introduction
The appellant, Mr Harry Nylander, was initially charged on one information with four counts of armed robbery and two counts of shooting with intent to do grievous bodily harm. The armed robbery offences were alleged to have been committed on 9 February 1996 at the Westpac Branch at Wayville, on 12 August 1999 at the ANZ Branch at Kent Town, on 31 December 1999 at the same ANZ Branch at Kent Town, and on 12 May 2000 at the ANZ Branch at Walkerville.
The shooting offences were alleged to have been committed on 16 August 2000 at Brompton. The alleged victims were both police officers.
The trial Judge, after hearing argument on the matter, ordered the severance of the shooting charges, thus separating the trial of the shooting with intent charges (the “shooting trial”), from the trial of the armed robbery charges (the “robbery trial”). The trials followed each other in close succession, the robbery trial being heard first.
Separate juries found the appellant guilty of all six counts. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the trial Judge imposed a single sentence of 32 years imprisonment in respect of all six offences, and fixed a non-parole period of 24 years. The appellant now appeals against those convictions and the sentence imposed.
The Facts
In view of some of the issues that need to be resolved on this appeal it is necessary to summarize the evidence led for the prosecution in both trials and for the defence in the shooting trial.
Evidence of armed robberies led at the robbery trial
There were a number of elements common to each of the four armed robberies of which the appellant was convicted. On each occasion the offender wore a peaked cap similar to a baseball cap and a black stocking pulled over his face as a mask. The offender in each case was armed with a handgun, being on some occasions a revolver and on another a semi-automatic pistol. The offender demanded cash from the bank tellers. At each bank the offender was photographed by security cameras, and in all cases used a can of spray paint to spray over the lens of the camera before leaving. Prior to spraying the lenses, the offender forced all persons present to either get on the floor face down, or turn away and face a wall. In total, approximately $30,000 was stolen from the banks. Eye witnesses were able to provide a general description of the offender.
The events of 16 August 2000
Evidence was led at both the robbery and the shooting trials of an incident which occurred on 16 August 2000, which would eventually lead to the appellant’s apprehension by the police some time later.
On 16 August, two police patrol officers went to a section of the median strip on Port Road at Hindmarsh after a member of the public had reported that a man was seen to be acting suspiciously there over a number of days. Two banks were near the vicinity of the median strip. The officers approached the appellant, who was sitting on a park bench facing the city bound carriageway of Port Road. They observed that the appellant was wearing sunglasses and a cloth cap similar to a baseball cap. Both officers noticed that the underside of the appellant’s fingers, thumbs and palms was completely covered with a skin coloured medical type adhesive tape. They also noticed a bulge at the back of the appellant’s clothing at waist level.
The officers spoke with the appellant, who gave his name as John Graham Palmer of 8/68 Bower Street, Woodville, and his date of birth of 7 February 1949. The appellant said that a friend had dropped him off in a car, and that he had left his identification in that car.
The officers returned to their car. The appellant left the scene on foot and proceeded towards an area behind buildings on the eastern side of Port Road, where he was seen by witnesses to run away from Port Road. The officers, having decided to see where the appellant had gone, drove to an area east of Port Road, where they observed the appellant driving a blue Nissan in the opposite direction. The officers began to follow the appellant’s vehicle, at which stage it sped off. The officers followed the appellant’s vehicle to the end of Pens Close, a cul-de-sac, where the appellant was found outside the car, squatting at the open driver’s door.
At the robbery trial, the evidence of the remainder of this incident was that the police officers alighted from their vehicle and that as they did so the appellant, holding a black coloured pistol, stood up, shouted something and moved closer to them.
The evidence which was omitted at the robbery trial, but which was admitted in and was central to the shooting trial, was that as the appellant stood up and moved closer to the police officers, and as the officers alighted from their vehicle, the appellant shot at them twice. Neither shot hit the officers. The officers also shot at the appellant, and one of these bullets hit the appellant, first piercing a can of green spray paint which he was holding in his right hand, and then lodging in his chest.
In both trials evidence was led that the accused then fled the scene and was not located until some time later in Melbourne. Similarly at both trials evidence was led of the items found in or around the appellant’s vehicle after he had fled the scene. Inside the car the officers found a cloth peaked cap similar to a baseball cap, a pair of black women’s pantyhose with the legs cut off, capable of being used as a mask, a pair of sunglasses and a blue jacket. Outside the car there was a can of green spray paint and a number of calico bags, similar to those used by the offender in a number of the robberies. A key pouch found hanging from the key in the ignition of the car contained a number of other keys, including an Australia Post post office box key, and a house key.
Using a duplicate key, the police matched the post office box key to a post office box at the Findon Post Office. Australia Post records showed that the post office box was leased to a Warren John Alton. Inside the box was correspondence addressed to Alton from the Adelaide Pistol Club.
Evidence of alias – the activities of Alton
A member of the Adelaide Pistol Club identified the appellant as the same person he knew as Alton. Alton had joined the Club on 25 February 1996, supplying a residential address of 8/42 Bower Street, Woodville and a postal address of PO Box 68, Findon. He was granted a pistol licence through the SA Police, after checks were carried out to establish that he had no criminal record. The same member of the Pistol Club also signed a declaration for the purposes of identifying Alton as the applicant for a passport under the name of Alton.
The police cross checked details in classified advertisements placed in ‘The Advertiser’ and vehicle registration records, and ascertained that the person Alton had advertised a car for sale which was registered under the appellant’s name. The house key located in the abandoned blue Nissan matched the self-contained unit at the address given as the billing address for the placement of that advertisement. The landlady at those premises informed the police that in about late August 2000 Alton had notified her that he was vacating the premises. Before moving he told her that he had lost the key to the premises.
There was evidence that Alton had told other acquaintances that he would be leaving Adelaide. A Mr Rashleigh was told by Alton on 19 August that he was going overseas for an extended period of time to assist his brother to resolve some problems. A Mr Elliott gave evidence that Alton had informed him that he was moving from Adelaide to Melbourne for employment. The appellant also applied to renew his passport under the name of Nylander, and travelled to Melbourne to collect it, where he was apprehended by police.
There were two handguns disposed of by the appellant whilst in Adelaide following the incident at Pens Close. On 22 August Alton left a 0.357 Smith and Wesson handgun registered under the name Alton at the Adelaide Gun Shop for sale on consignment. Alton also asked Mr Elliott to store some property for him, and amongst this property was a Heckler and Koch 9mm semi-automatic pistol.
In the opinion of a police ballistics expert, the revolver left at the Adelaide Gun Shop was consistent with the revolver shown in photographs of the robbery committed on 31 December 1999 at the ANZ Branch at Kent Town. The Heckler and Koch pistol stored in the shed was consistent with the pistol shown in photographs of the armed robbery on 12 May 2000.
There was also evidence that Alton had received training at the Adelaide Pistol Club in the safe use of handguns. Such training included the practice of holding the finger outside the trigger guard, parallel to the barrel of the gun. The offender is shown in the photographs taken at the ANZ Branch at Walkerville on 12 May 2000 holding the handgun in a similar manner.
Other evidence linking the appellant to the robberies
There were a number of other consistencies between the items found in the blue Nissan and those observed in the armed robberies. The cap and mask found in the car were consistent in appearance with those shown in the security photographs from each of the armed robberies. In relation to the can of spray paint, a forensic chemist compared a sample of paint from the can with the paint scrapings taken from the security camera lenses after each of the armed robberies at the ANZ Branch at Kent Town. He found that the testing of the two samples could not distinguish between them. The two samples could have come from the same paint can, or from the same batch of paint made by the same manufacturer. In addition, the ANZ Bank Area Manager and a police crime scene examiner observed that the iridescent green colour paint used in the bank robbery at the Walkerville Branch of the ANZ Bank was “similar” and “very similar” respectively to the colour of the spray paint in the can recovered at Pens Close. The Heckler and Koch handgun, when recovered, had similar green paint on it.
Other evidence called by the prosecution at the robbery trial concerned the appearance of the appellant. The Professor of Anatomy at the Adelaide University Medical School examined photographs of the appellant taken after his arrest together with photographs and enlargements of photographs taken of the offender in each of the armed robberies. The Professor identified a postural abnormality in the appellant from the photographs taken after his arrest which he also identified in a number of the photographs of the offender taken at each of the armed robberies. In relation to the photographs taken at the ANZ Branch at Walkerville on 12 May 2000, the Professor concluded that the offender had a similar body build to the appellant and had similar large hands with long fingers. The Professor also used those particular photographs to take measurements of the offender’s face and compare them with those from the post arrest photographs. The Professor concluded there was a high degree of likelihood that the appellant was the same person as the offender shown in the photographs of 12 May 2000.
The evidence of the appellant’s flight from Port Road and later from Pens Close, of the appellant’s use of the alias Alton, and of Alton’s attempted flight from Adelaide, was all admitted at the robbery trial. The appellant did not give evidence at the robbery trial.
Appellant’s evidence at the shooting trial
The appellant did, however, give evidence at the shooting trial. The appellant testified that he had been on the median strip at Port Road on 16 August 2000 waiting for a friend from whom he had to collect money. The money was owed to the appellant for some work he had done on a Heckler and Koch firearm for the friend, and for some firearm slides which he was selling to the friend. It was the appellant’s evidence that he had met this friend on the median strip of Port Road a number of times during July and August of 2000 for the purposes of transactions involving firearms. The appellant was only able to identify this friend as “JB”. The appellant did not know the friend’s full name, apart from that his first name was Jimmy and that his nickname was also the name of his favourite drink.
The appellant testified that he and JB had met in the morning of the day in question, but that at that stage JB did not have the money owed to the appellant. JB instead asked the appellant to supply him with 300 rounds of 9 millimetre ammunition, and also asked for the return of the Heckler and Koch firearm which the appellant had been working on. According to the appellant, JB then lent him his vehicle to go and collect the ammunition and the firearm. The appellant was given the key to the car, which he placed on his key ring. The appellant then drove home and collected the ammunition, along with the Heckler and Koch firearm.
The appellant said that after a short while he drove back to the car park from where he had initially picked the car up, and when JB was not there to meet him, he moved to their usual meeting place, the median strip on Port Road near the war memorial. JB soon arrived and they walked back towards the car together. The appellant gave JB the ammunition and the firearm, however JB still did not have the money to pay him. The appellant therefore gave JB his key pouch and JB took the car to collect the money. The appellant was waiting for JB to return when he was approached by the police on the median strip.
The appellant could not recall with any detail his conversation with the police officers. They generally asked who he was and what he was doing there. He testified that when he was asked for identification he patted and turned out his pockets and said he had none. The appellant explained that the tape on his hands as seen by the officers was a sports tape used for playing handball. He testified that earlier that day he and JB had been playing handball in church grounds nearby, and that JB had taken the ball they were using. He denied having had the Heckler and Koch in his possession at the time of speaking with the officers.
The appellant gave evidence that when the police officers returned to their car, he walked to the back of the buildings on the east side of Port Road, down a street, and crossed the railway line via a pedestrian crossing, where he found JB’s car in the car park of the Brompton Hotel. JB was outside the hotel. The appellant told JB what had happened, then took the car keys off him and drove away in the car. JB did not go with him because he had some business to attend to in the area.
The appellant then gave evidence of the shoot out with police. The appellant stopped the car at Pens Close. When he opened the glove box, the Heckler and Koch handgun and a can of spray paint were inside. He was carrying both when the police car pulled up behind him. It was his evidence that one of the police officers shot at him first, shooting the paint can out of his hands and striking him in the chest. He asserted that the shots he fired were warning shots fired in self-defence, and were not intended to hit the police officers. Fearing for his safety, the appellant fled the scene on foot. He went to the Brompton railway station where he jumped on a train. After a few stations had passed he alighted from the train, and rang JB from a phone box. JB told him to go to the Arndale Shopping Centre, where JB picked him up.
The appellant asserted that the cap, stocking mask and calico bags found in and near the car did not belong to him, and that JB could explain them.
JB was not called to give evidence. Nor did the appellant attempt to make any contact with JB in order to ask him to give evidence. The appellant claimed that JB had saved his life by assisting him on 16 August 2000, and that he did not want to get him in the “midst of trouble”. He did not know JB’s number, and out of a sense of loyalty had made no attempt to find it. The appellant also testified that the person who had initially put him in contact with JB had since died of leukaemia.
Appeal against the armed robbery convictions
Grounds of Appeal
The appellant complains that evidence of his use of the alias Warren George Alton during a period which included at least part of the period covered by the armed robberies and since the armed robberies should not have been left to the jury as evidence of consciousness of guilt. He also complains that evidence of his use of the name John Graham Palmer when he was approached by police on Port Road at Hindmarsh was also wrongly left as possible evidence of consciousness of guilt. Finally, evidence of the appellant’s flight comprising his departure from the scene of the incident at Pens Close, his travel to Melbourne, his application to renew his passport and his statement to Mr Rashleigh that he was going to go abroad was also wrongly left to the jury as possible evidence of consciousness of guilt of the armed robberies.
Use of alias and false name
It is convenient to deal with the evidence of the use of the alias and of the false name together. Evidence of the appellant’s use of the alias Warren George Alton was plainly relevant as part of the circumstantial case against the appellant regardless of whether it might also have been used as evidence of consciousness of guilt. There was evidence that the appellant, under the name of Alton, had been a member of the Adelaide Pistol Club, and that whilst at the club premises he had had in his possession firearms of the types used by the offender in the armed robberies. There was evidence that at the Pistol Club he had been trained in the handling of firearms in a particular way which was used by the offender and captured on the security photographs during the offence committed on 12 May 2000. There was also evidence that the appellant, under the name of Alton, had registered a handgun on 8 January 1999 which matched the make and model of the hand gun used by the offender in the offence committed on 31 December 1999. He had also used the identity of Alton to obtain accommodation, a driver’s licence, a bank account, a passport, the gun club membership and another handgun licence.
Adoption of the alias during a period which included at least part, and possibly the whole, of the period covered by the four armed robberies was therefore relevant to proving his modus operandi and as evidence of an endeavour to conceal his identity and make his detection as a bank robber more difficult.
However, the trial Judge also said that the evidence of his use of an alias and of his giving of a false name to police on Port Road at Hindmarsh could be used for another purpose. He said:
“ In the second place, use of an alias or a second name after the commission of the crime may be taken into account if you are satisfied that it arises out of a consciousness of guilt. That is, an awareness of having committed the crime and a desire to avoid detection.
The same comment applies to the evidence that the accused used the name ‘John Graham Palmer’ when accosted by Constables Racz and De Sira on Port Road. You may take that into account as an item of circumstantial evidence against Mr Nylander if, and only if, you are satisfied that he used that name out of a consciousness of guilt of the crimes now alleged against him, and out of a desire to avoid detection for them. You can only be so satisfied if you exclude any other reasonable explanation beyond reasonable doubt.”

The trial Judge did not offer any other possible reason or explanation as to why the appellant might have used an alias or might have given a false name to police. It is difficult to conceive of any reason other than a desire to mislead police or to avoid detection of his involvement in some activity which might attract the attention of the police. The Judge did not advert to the existence of any specific activity in respect of which the appellant might desire to avoid detection other than his involvement in the armed robberies. However, no other activities were suggested on the evidence as providing a reason for the use of the alias. It was sufficient to warn the jury that they could only use that evidence of use of the alias as evidence of consciousness of guilt if they were satisfied beyond reasonable doubt that there was no other reasonable explanation.
At this point, the evidence of the use of the false name requires separate consideration. Other evidence led before the jury in this trial raised a suspicion that the appellant, at the time he was approached by police on the median strip of Port Road, was about to embark on an armed robbery or some other criminal activity. If that was in fact the case, it provided a very powerful and obvious alternative motive for the appellant to give a false name to the police, in order to conceal from them his true identity.
If evidence of the use of the false name was to be left to the jury as evidence of consciousness of guilt of the robberies with which the appellant was charged, they should have been reminded of that very powerful and obvious alternative motive for use of the false name at that time. That was not drawn to their attention, probably because another aspect of the trial Judge’s summing up created an insuperable difficulty. Elsewhere in the summing up the Judge directed the jury that they should avoid any speculation about the appellant’s purpose and intention in being on the median strip on Port Road. In particular, they were told that they should not speculate that he might have had an intention of committing a robbery or some other crime. The reason for that warning, as the Judge explained, was to avoid any propensity reasoning by the jury based on such speculation, namely that the jury might conclude from that evidence that the appellant was a robber, and that he must therefore been involved in the four armed robberies in question. It was the way that that warning was put to the jury that effectively prevented the Judge from referring to those facts as a possible explanation for the appellant’s use of the false name. However, the propensity warning could have been put another way. The jury could have been warned that they might think that the evidence suggested that the appellant, at the time he was on the median strip, was up to no good. They could be told that if they were tempted to think that way, they should not adopt any propensity reasoning to conclude that he was involved in the four armed robberies in question. That would have enabled the Judge then to have reminded the jury that there might well, on the evidence, have been another powerful motive for the appellant to use the false name when he did, and thus to have given a full and proper direction relating to the use of the false name as evidence of consciousness of guilt. As the direction stands, in relation to the use of the false name of Palmer, I think the direction was inadequate.
Evidence of flight
The appellant had successfully applied to the trial Judge for separate trials of the armed robbery offences and the offences of shooting with intent to cause grievous bodily harm. That meant that at the robbery trial no evidence of the shooting at the police officers in Pens Close could be led or was led. All that the jury was told was that the appellant had got out of his car, that he had shouted something at the police, and that after a short time he ran up the driveway of No. 8 Pens Close and disappeared. Evidence was led of the finding of the pistol belonging to the appellant with green paint on it. The prosecution suggested that because of the damaged spray paint can found by the appellant’s car in Pens Close and the fact that paint from the spray can appeared to have sprayed around the vicinity of the car, the pistol had been in the appellant’s possession when he was at Pens Close. Evidence that the pistol was fired was not led.
The trial Judge directed the jury about the use of evidence of flight, being the events which took place after the incident in Pens Close. He explained that evidence of flight may be an item of circumstantial evidence which can be taken into account in assessing the person’s guilt, but that it may only be taken into account if the explanation is that the flight was manifested from a consciousness of guilt. His Honour then said:
“ Of course, one can rarely say, in dealing with evidence of that kind, that it is unequivocally indicative of guilt. Importantly, you must take into account any explanation, either advanced by the accused person or which might, for some other reason, explain the conduct.
What it boils down to is that, where more than one reason is advanced, or is otherwise open to explain the flight, it is for you to decide, on the whole of the evidence relevant to the charges, whether it is safe to draw the inference beyond reasonable doubt that, in this case, [the appellant’s] departure from the scene of the incident at Pens Close, his travel to Melbourne, his application to renew his passport, and his statement to Mr Rashleigh that he was going to go abroad – or any of those things – stemmed from a consciousness of guilt on his part for the crimes which have been alleged against him; these four counts of armed robbery.
If you are so satisfied, then that is again a matter which you may take into account as part of the body of circumstantial evidence upon which the Crown relies.”
That direction was satisfactory as far as it went. However, the exclusion of evidence of the shooting on the trial for the armed robberies meant that the jury was denied access to highly significant information relevant to the appellant’s motive for fleeing. On the prosecution case in the shooting trial, the appellant had been apprehended by two policemen in circumstances which, on subsequent investigation, suggested that he might well have been about to commit an armed robbery. He knew that he was being kept under observation by the police as he left the median strip on Port Road and as he drove away in his car. When he realised that he had nowhere else to go at the end of Pens Close he shot at the police and disappeared on foot. He must have known, as a result of that incident, that police interest in finding him and arresting him for that incident alone would be greatly heightened. That provided perhaps the most obvious motive for his flight and the steps which he subsequently took to conceal his whereabouts. Yet, none of that material could be placed before the jury.
In my opinion, the consequence of splitting the trials was that it was impossible properly to direct the jury in the robbery trial on the use they could make of evidence of the appellant’s flight from Pens Close as evidence of consciousness of guilt. The jury should have been told that those matters had no probative value as evidence of the appellant’s consciousness of guilt of the armed robbery offences. The direction given by the Judge amounted to a misdirection.
It is not necessary to decide whether, had the evidence of the shooting been before the jury, it would have been one of those cases where the competing explanation for the flight was of such inherent plausibility that it would not have been reasonable to leave flight as probative of guilt of the armed robberies: compare Edwards v The Queen (1993) 178 CLR 193 per Deane, Dawson and Gaudron JJ at 212. It is sufficient to say that, as the evidence of the competing explanation could not be led, by virtue of the trial Judge’s ruling splitting the trials, the direction leaving flight as evidence of consciousness of guilt of the armed robberies should not have been given.
The proviso
There were two misdirections, both relating to evidence of consciousness of guilt concerning events in close proximity to each other but remote from the robberies in question. The question arises whether the Court should apply the proviso to s 353(1) of the Criminal Law Consolidation Act, 1935 because it is satisfied that no substantial miscarriage of justice has actually occurred.
On that topic I refer to what Hayne J recently said in Festa v The Queen (2001) 208 CLR 593. Although his Honour dissented on one aspect of the case he was not in dissent in the application of the proviso. At [226] – [229] he said:
“(F)or a court of criminal appeal to apply the proviso the court must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict. A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial. To take but one example, in some cases it may be possible to conclude that the jury could not have reached the verdict it did, unless it accepted some evidence and rejected other evidence. In such a case, could the error that has been identified have affected those conclusions? Often enough, that question will require an affirmative answer. If, however, the answer is no, what does that say about whether there has been a substantial miscarriage of justice?
By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury’s verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable.
The formula usually cited in connection with the application of the proviso is taken from the reasons of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514.
‘[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.’
It is to be noted that his Honour was not, in terms, describing the application of the proviso, so much as the operation of the common form provision taken as a whole. His Honour referred to the proviso two sentences later when he said (at 514), ‘[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried’.
Be that as it may, use of the formula of ‘lost chance, fairly open, of acquittal’ must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted.”
It cannot be said that the misdirection in this case was such that, if it had not occurred, the jury could not have reached the conclusion it did. Accordingly, it is necessary to consider whether, on the evidence properly admitted, a jury acting reasonably and properly directed would inevitably have convicted.
Mr Cuthbertson for the appellant submitted that this was a paradigm similar fact case of the type described by Gibbs CJ in Sutton v The Queen (1984) 152 CLR 528. The issue was the identity of the person who committed the four armed robberies. The question was “whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes” (Gibbs CJ at 535). It was not just a matter of relating the features of each particular crime to facts implicating the appellant as the perpetrator of that particular crime. Whether or not Mr Cuthbertson is correct, the strength of the prosecution case lay in the consistent features tending to show that all the robberies were committed by the same person, and that the accused was linked to those features as well as to the other features peculiar to a particular robbery.
It was appropriate to direct the jury, in the context of a direction on circumstantial evidence, that that was how they could use the evidence. Used in that way, the case against the appellant, independent of the evidence the subject of the flawed consciousness of guilt directions, was very strong.
The trial Judge directed the jury that they should consider each charge separately. He said:
“ You should assess the evidence relating to each charge separately and consider whether each charge has been proved separately from proof of any other charge.
That is of particular significance with respect to the immediate evidence concerning each count, that is to say, the evidence of the bank staff and customers and of the security cameras. That is to say, the evidence only relates to that particular occasion and that particular charge. However, much other evidence in this case, such as alleged circumstantial evidence said to link Mr Nylander with the crimes, potentially relates to all four rather than to any particular case.
Be that as it may, you must bear in mind at all times that you should consider each count separately and determine whether or not the elements, as I have explained them, of the offences with respect to each count have been proved beyond reasonable doubt.
Having said that, I should add that having regard to the manner in which the prosecution has presented its case, while you may return a verdict of guilty of one or more counts and acquittal of one or more counts, given the nature of the case, it seems to me that that would be an unusual result. It seems to me that this is a case where it would be difficult to justify different verdicts with respect to different counts.”
Mr Cuthbertson submitted that that direction having been given, without a proper similar fact direction in respect of the common features of all four crimes, the circumstantial case against the appellant was very weak, and that the directions about the use of the false name and the evidence of flight must have played a significant part in the jury’s verdict.
I do not accept that submission. Although the Judge did give a direction that the evidence relating to each offence must be considered separately, he made the point in the paragraphs quoted that that was particularly so in respect of the evidence of the bank staff, customers and security cameras. He also said that evidence said to link the appellant with the crimes potentially relates to all four rather than to any particular case.
He then went on to explain the prosecution case in some detail, saying that it was built on three building blocks. The first was that there were four armed hold-ups on the occasions referred to in each of the four counts. The second was that one man carried out the four armed hold-ups, and the third was that that man was the appellant.
Having referred to the facts relevant to the first building block, the Judge explained that the second two were based on circumstantial evidence, and he gave a direction as to the use of circumstantial evidence. He then related that to the common circumstances said to exist in respect of each of the four armed robberies. In relation to the second building block he concluded:
“ At the end of the day, you may be prepared to find, when you assess the combined effect of the items of circumstantial evidence which you find proved relating to the appearance of the man described on the occasion of each robbery, and the manner in which it was carried out, that the Crown has proved beyond reasonable doubt that the same man carried out the four robberies.”
He then addressed the evidence relevant to the third building block and the circumstantial evidence which pointed to the appellant being involved in each of the armed robberies.
While it might be said that the Judge did not give a classical similar fact direction or invite the jury to consider whether the manner in which the crimes were committed was so “strikingly similar” to the others that they must conclude that the crimes were committed by the same person, the effect of the trial Judge’s directions based on the use the jury could make of the circumstantial evidence was unexceptional. He told the jury that they could consider the evidence relating to all four armed robberies and that they could use that to decide whether the same person committed all four robberies. They could then use the features of each of those four robberies to decide whether the evidence linked the appellant to them beyond reasonable doubt. In that regard they were adequately directed and were not misled by the direction to consider each count separately.
Taking all that circumstantial evidence alone and excluding the evidence of flight and the use of the false name of Palmer, it was a very strong circumstantial case against the appellant. I consider that had the jury been properly directed, a verdict of guilty was inevitable. I would apply the proviso and dismiss the appeal.
The appeal against the convictions of shooting with intent to do grievous bodily harm
Intention to do grievous bodily harm
The first ground of appeal relates to the trial Judge’s directions concerning the element of the appellant’s intention in shooting. His Honour correctly explained to the jury that the shooting must be accompanied by an intention to do grievous bodily harm. On that topic his Honour said:
“ If, in the circumstances of this case, you find that [the appellant] deliberately fired the gun at fairly close range with the intention that the bullet should hit both of these constables, or either of them, you will have little difficulty in finding that he must have had an intention to inflict grievous bodily harm. It would not matter where on the body of the intended victim the bullet was intended to land. I think it would be open for you to find an intention to inflict grievous bodily harm, that is, really serious bodily harm, if it was intended that the bullet should land anywhere on the body of the intended victim.”
The appellant complains about the last sentence in that direction. He argues that the trial Judge was directing, as a matter of law, that if it was intended that the bullet should land anywhere on the body of the intended victim that amounted to an intention to do grievous bodily harm. It was said that that was particularly objectionable in this case where the appellant had raised self defence by way of responding to the police first shooting at him. His case was that the evidence left open the possibility that his intention in shooting was not to cause grievous bodily harm but to take a reasonable step in circumstances where he genuinely believed he was being shot at, and that his shooting was no more than a warning reasonably proportionate to that threat, which he genuinely believed to exist.
I do not accept the submission. I do not consider that in the sentence complained of the Judge was purporting to direct the jury as a matter of law. Taken in the context of the paragraph in which it appears, the Judge was merely saying, in effect, that as a matter of common sense it was open to them to find the necessary intention if they found that he deliberately fired the gun at close range with the intention of hitting a person. That was a proper direction as to the element of intent. It did not prejudice the appellant’s argument that the prosecution had not negatived self-defence. Indeed, his case was that he did not shoot to hit the police at all. That ground of appeal is not made out.

The failure of the appellant to call JB

The second ground of appeal is that the Judge erred in not directing the jury that no inference unfavourable to the appellant could be drawn by the appellant’s failure to call JB.
The prosecutor, in his address to the jury, asked rhetorically why JB had not been called to give evidence. He reminded the jury that the defence did not have to prove anything, but pointed out several ways in which JB, if he were called, could have provided vital evidence for the appellant. Having done so, he said:
“ I suggest to you, it is a matter for you, that JB is not here because JB does not exist. He is, of course, in the Crown’s submission, a fictional character. He is a fabrication. It was created by the accused to complement his story. To fill holes in his story. To explain all those things that I just mentioned.”
He went on to suggest other reasons why the appellant, in his evidence, had created the fictional JB to complement his own story. The submission was put that because JB was a fictional character the appellant had fabricated his evidence about what he was doing at Port Road.
The trial Judge in his summing up to the jury addressed that question as follows:
“ The question has been raised as to why Mr Nylander did not call the witness known as JB.
Sometimes one can infer from a failure to call a witness, that he or she might not be in a position to say anything which would assist the cause of the party who you might expect would be called. But there may be a number of reasons why a witness is not called and it is usually unwise to speculate as to what they might say.
In this case however, the real criticism directed to the accused in this respect is that JB doesn’t exist. That is a matter which you will have to consider very carefully, having regard to the evidence of [the appellant] and the comments made by [defence counsel], on the one hand and [prosecution counsel] on the other.”
The direction not to speculate as to what JB might have said if he were called was properly given, and in the third paragraph the trial Judge accurately summarised the nature of the prosecutor’s submission.
In RPS v The Queen (2000) 199 CLR 620 evidence was adduced of a conversation in which the accused made statements which were capable of being construed by the jury as partial admissions of the sexual offences with which he was charged. He did not give evidence at the trial. If it were a civil trial it would have been open to conclude that that failure led to an inference that the defendant’s evidence would not help his case: Jones v Dunkel (1959) 101 CLR 298 at 312 (Menzies J) and 321 (Windeyer J). In their joint judgment in RPS, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said, at [27]:
“By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228:
‘[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused’ (Emphasis added.)”
That principle was applied by the majority in Azzopardi v The Queen (2001) 205 CLR 50 where it was held that it was a misdirection to say that the accused’s failure to give evidence might affect the value or weight which the jury gave to the evidence of Crown witnesses, and thereby suggest that the accused was or believed he was guilty of the offence charged.
In Dyers v The Queen (2002) 76 ALJR 1552; 192 ALR 181 a majority of the High Court held that it was a misdirection to tell the jury that they were “entitled to draw the inference that the evidence of [a] witness would not have assisted the party who you have assessed should have called that witness” where the witness was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and where there was no satisfactory explanation for the failure of that party to call the person to give evidence. Gaudron and Hayne JJ, with whom Kirby J agreed, said at [5]:
“As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi (2001) 205 CLR 50 at 74 [64]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.”
Mr Cuthbertson argued that it is a logical progression from the decision in these cases that if it is not possible to draw an adverse inference against an accused person for not calling a witness known to exist and who could have been called, it is not possible to draw an adverse inference against the appellant in this case for his failure to call JB to prove that he exists. He argued that that was the effect of the trial Judge’s direction and of his failure to direct that no adverse inference against the appellant could be drawn from the absence of JB.
It would seem to be a necessary consequence of Mr Cuthbertson’s submission that, if correct, an accused person who gives evidence of the existence of and his interaction with a fictitious person by way of explanation for his conduct would be entitled to remain insulated from criticism that he was telling lies because such criticism would necessarily raise an adverse inference against the accused that the person could and should have been called by him. Dyers’ Case and those which preceded it were not intended to shield an accused person from attempts to expose his own lies.
However, the submission can have no application to this case. This was not a case of the type referred to in Dyers v The Queen at all. The trial Judge properly directed the jury that they should not speculate as to why JB was not called and what he might say if he were. The Judge, in summary form, merely drew attention to what the prosecution had asked the jury to infer from the evidence of the appellant, which was not corroborated, and from JB’s absence, that is, that JB did not exist and that the appellant was lying. Mr Cuthbertson’s argument, to succeed, must require the Judge’s direction to imply some sort of critical or disadvantageous comment concerning the failure of the appellant to call JB. It did not do that. The direction focused solely on the prosecution’s case directed at the credit of the appellant.
In my opinion this ground of appeal also fails.
The appeal against sentence
Pursuant to s 18A of the Criminal Law (Sentencing) Act the Judge imposed a single sentence of 32 years imprisonment with a non-parole period of 24 years.
The armed robberies were serious and were all carried out with the aid of an apparently loaded gun. They were carefully planned and executed, the appellant successfully avoiding detection for some time. The total amount stolen was approximately $30,000.
The shooting offences were also serious. They involved shooting at police officers in the course of carrying out their duty. They were committed in order to facilitate his escape from arrest.
At the time of his sentencing the appellant was aged 53. He had been in custody since 20 September 2000, and the sentence and non-parole period were taken to have commenced at that time. The earliest time at which he can be released on parole will be when he is aged 74. His parole will continue until he is 82.
His previous offences included larceny and armed robbery, the first offence of larceny dating back to 1970. The armed robbery was committed in 1973. There were other larceny and possession offences in the 1970’s and one in 1994. He escaped from custody in 1985.
The trial Judge took as a starting point a sentence of 10 years imprisonment with respect to each of the armed robberies. He considered that those should be cumulative. He considered that a penalty of eight years imprisonment for each of the two shooting offences should be concurrent with each other but cumulative upon the armed robbery offences, making a notional starting point of 48 years by way of head sentence. By reference of the principle of totality the trial Judge reduced that to a head sentence of 32 years.
The notional starting point for each of the offences cannot be criticised. For offences taken in isolation each of the notional penalties was well within the range appropriate for the circumstances of the offence and the antecedents of the appellant. There could be no discount for a plea of guilty. There was no sense of repentance or remorse.
The trial Judge followed the process referred to by the majority of this Court in R v Major (1998) 70 SASR 488, where Doyle CJ said at 490:
“I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.”
See also Olsson J at 497.
However, that is not always the appropriate approach. In R v Symonds [1999] SASC 217 the Chief Justice, with whom Prior and Mullighan JJ agreed, said at [21] – [22]:
“ In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.”
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
The totality of the offending here was serious, and warranted a heavy but realistic sentence. Opinions will differ on what the appropriate sentence in those circumstances should be. Given all the relevant circumstances in this case, I consider that the appropriate head sentence that should be imposed is one of 26 years. One of the relevant factors is the appellant’s age. Even a sentence of that length exceeds the appellant’s present life expectancy, but in serial armed robberies and shooting at police, general deterrence must always be a significant element.
Accordingly, I would allow the appeal and substitute a head sentence of imprisonment for 26 years. There is no suggestion that the appellant would benefit from a substantial period of parole. There is no evidence of remorse or repentance or of any desire for reform or rehabilitation. However, given his age when the head sentence is due to be completed, I consider that he should be given the opportunity of earning some period of supervised liberty after the expiration of an appropriate non-parole period. I would fix a non-parole period of 20 years. Both the head sentence and non-parole period should date from the time at which the appellant was taken into custody, namely 20 September 2000.
SULAN J: I agree with the reasons given by Bleby J and with the orders he proposes.

[2003] SASC 191

17 June 2003