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R v O'Brien [1999] VSCA 78 (1 June 1999)

Last Updated: 25 June 1999

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 141 of 1998

THE QUEEN

MICHAEL MARTIN O'BRIEN

---

JUDGES:	PHILLIPS, C.J., TADGELL and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 1999
DATE OF JUDGMENT:	1 June 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 78

--- CRIMINAL LAW - Armed robbery - Accomplice - Warning to jury sufficient - Verdict not "unsafe and unsatisfactory" - Judge's charge not "insufficiently balanced" - Verdict not "against weight of the evidence" - Fresh evidence not admitted - Sentence - Not manifestly excessive.---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	Solicitor for Public Prosecutions
For the Applicant	In person

PHILLIPS, C.J.:

The applicant, who is aged 35, was convicted by a jury in the County Court at Melbourne on 24 April last of one count of armed robbery (count 1) and one count of car theft (count 2). These offences, which carried maximum penalties of 20 years and ten years' imprisonment respectively, were alleged to have been committed on 14 November, 1996, and 19 October, 1996. After hearing a plea for leniency, the applicant, who admitted 271 previous convictions from 18 court appearances between 19 March, 1981 and 25 June, 1991, was sentenced to be imprisoned for five and a half years on count 1 and nine months on count 2 making for a total effective sentence of five years and six months. A non-parole period of four years and six months was fixed. An order for cancellation and disqualification of licence was made together with a declaration as to pre-trial detention. The applicant's prior convictions included a number for burglary, theft, receiving and other offences of dishonesty; drug related offences; driving offences; offences related to the possession of firearms and seven counts of armed robbery in April, 1991 for which he received a total effective sentence of nine and a half years' imprisonment with a minimum term of eight years. Convicted with the applicant was an alleged
co-offender, Millar, who was also sentenced to be imprisoned. He has appeal proceedings pending. Another man, one Jeffrey Gordon Harrison, pleaded guilty before a judge other than the trial judge of Millar and the applicant to a count identical to count 1 and an unrelated car theft. After hearing evidence from Harrison that he had assisted the police and that he undertook to give evidence against the applicant and Millar, Harrison was sentenced to a total effective sentence of two years and six months and the learned judge directed that 18 months of that sentence be suspended for 18 months.
The applicant later lodged notice of application for leave to appeal against conviction and sentence. As to the former, he pleaded as follows: (I have added numbers to these grounds and I have treated ground 3, thus numbered as being subsumed in ground 1.)

1. "The verdict was unsafe and unsatisfactory.

2. The judge's charge was insufficiently balanced.

3. The verdict was against the weight of the evidence.

4. The judge erred in his directions and re-directions on accomplice evidence."

As to the latter he pleaded:

"That in the circumstances the sentence was manifestly excessive.

A contrived illusion of parity was drawn by doubling the Crown witnesses `head sentence' yet the actuality is that I am serving (5) years in prison - while the `Master mind' serves (1) year."

It is now necessary to set out in summary form an account of the evidence adduced at the trial of the applicant and Millar and an account of those proceedings.
Harrison was called to give evidence by the prosecution. He said that he had met Millar about 18 months prior to the robbery. Over a period of time, he said, he loaned Millar sums of money and sold him two motor cars (utilities) for which he made no payment, so that Millar came to owe him something between $25,000 and $30,000 plus the sum owing for the cars. Throughout this time Harrison was working for a car repair business of his father
About six months before the robbery Harrison commenced work with a golf clothing company and at material times his wife worked part-time (normally Mondays, Tuesdays, Thursdays and every second Saturday in the mornings) for the Heidelberg branch of the Bendigo Bank. On the day of the armed robbery (a Thursday) she continued working into the afternoon, together with a Mrs Crellin because the relieving manager was ill. This left only Mrs Harrison and Mrs Crellin on duty.
According to Harrison, between 1:00 and 1:30 p.m. on that day Millar came to his work place and told him that he had someone who was interested in robbing the bank that afternoon. This conversation followed an earlier one about a month previously about Mrs Harrison working at the bank and the amount of money likely to be at the premises.
Millar told Harrison he would meet him in Brown Street, Heidelberg where Millar would drop off the money he owed Harrison and move on from there. Millar then made a telephone call after which he left Harrison's office. Telephone records for the service there put in evidence at the trial showed that from the number
9499 5022 a 46 second telephone call was made at 12:55 p.m. on that day to a mobile telephone service 0419 593992. It was accepted at the trial that that mobile service was in the name of the applicant having been connected in February, 1996 and maintained since then.
Again, according to Harrison, Millar returned an hour later with a man identified at the trial by Harrison as the applicant. He was introduced to Harrison as "Mick". Millar and the applicant told Harrison they were going to "pick up" a car and would meet him in Brown Street after which they would go down to the bank before meeting him again there. After about ten minutes Millar and the applicant left Harrison's office.
Harrison also did so between 3:00 and 3:30 p.m. and drove to Brown Street in his own car. There he waited. Then, he said, a dark brown Commodore sedan driven by Millar with the applicant as passenger arrived. Millar wore overalls and the applicant a tracksuit. They told Harrison they were going down to the bank and would be back in 15 or 20 minutes. They drove off. After about half an hour to 40 minutes they returned in the same car which was driven around the corner and parked in a block of units. The other two men got into his car wearing tracksuit pants and tops with hoods. Millar's top was dark and that of the applicant a light colour. Millar entered the back seat of Harrison's car and the applicant the front. Harrison saw in the back seat a black bag and a double barrelled shotgun. Harrison drove to a cricket ground in Preston where Millar and the applicant departed. Harrison went to cricket training. Harrison later identified the applicant from the photograph (no. 4) from a photo folder shown to him by the police, Exhibit "C" at the trial. The prosecution called a police officer who gave evidence without objection that the car named in count 2 was used in the commission of the robbery and had been stolen on the night of 18 October.
There was also evidence that after his apprehension by the police for another matter, Harrison confessed to these instant offences and later wore a covert tape recorder in an endeavour to obtain evidence against Millar. However, nothing incriminating eventuated from this.
Under cross-examination Harrison admitted that on 12 December, 1996, he had been arrested by the Armed Robbery Squad for the armed robbery at the Bendigo Bank. These police had detected him driving a stolen blue Commodore car, not connected with the robbery. He admitted a man named Pat Christofi, who had a criminal record and was involved in drugs, had been involved with him in relation to the stolen car. He also agreed that another man, Michael Malkoun, whose family were drug traffickers, worked at the same car yard as did Christofi. Harrison admitted that when questioned about the armed robbery he initially said, "I don't know what's going on" but later had said, "Oh, Shane Millar and a bloke called Mick" had run in to the bank.
Harrison also admitted under cross-examination that in the course of his work he had "written out some bad roadworthys", and that he had "a prior conviction" "for false number plates", "roughly" "about early 1996". He also agreed that this conviction was not mentioned upon his plea although his counsel had presented him to the judge as "blemish free".
(I here interpolate that Harrison was unsure whether the conviction had been discussed with his counsel. It is also uncertain whether it was, technically, a prior conviction.)
Further cross-examined, Harrison said that on the day of the robbery it was fairly certain that Millar had arrived at his premises at 1:30 "give or take say five or ten minutes" and that it was "roughly 1:30" when Harrison made the phone call. He admitted that he did not know to whom the call was made. He denied that Millar and "Mick" had come to the premises together and it had been said that they were going to another part of Fairfield to do some work.
He also agreed that he had given the police the following description of "Mick". Approximately five foot ten, skinny, dark hair, 40 years old, fairly dark in colour, shoulder length hair, receding and pretty sure he had tattoos. The description did not include any suggestion of distinguishing facial features including the nose. He said that when the car referred to in count 2 pulled up next to his car he could not see the passenger therein and that he could not "exactly say 100 percent" that he had seen the face of the man known as "Mick". He said he saw Mick later when Mick jumped into the front seat of his car whereupon he, Harrison, immediately drove off. He did not think there was any conversation between himself and Mick for he was concentrating on driving. He said he did see Mick's profile by way of "very brief observation" to which he could not put a time but the journey took some 15 minutes. He said he immediately identified the applicant from photo number 4 in a folder he was handed by the police and that he "didn't need" to look at any of the other photographs in the folder. He said that at his office he would have looked at the applicant for "more like five" minutes but his focus would have been on Millar. He did not really have a conversation with the applicant.
Cross-examined about a letter of the Bank of Bendigo, which stated that the bank was to close at the end of November/December because of security considerations, and which was written to his wife, Harrison acknowledged that it had found its way to his work premises. He explained that this was done so that it could be photocopied. He declared that he did not know if there was a photocopying machine at the bank.
The prosecution called Mrs Harrison and Mrs Crellin to describe what had happened at the bank. Their evidence was that about 4:30 in the afternoon of 14 November, 1996, the two men entered it, one wearing a blue windcheater with an attached hood pulled over his head and around his face. The second person, who was taller wore a grey windcheater in the same manner. The first man carried a cut down double barrel shotgun. The two men and the nature and different shades of their attire are clearly depicted in a number of photographs taken by the bank's security camera and which form part of a book of photographs, Exhibit "A" at the trial.
The darkly clad man leapt the counter and landed directly in front of the women, ordering them to get down on the floor. The grey clad man scaled the counter and started to remove the contents of the cash drawers.
The security system was activated and a series of photos taken (Exhibit "A"). Due to the hood depicted on the robbers the photographs do not disclose their identity.
Mrs Crellin said the dark clad robber came between her and her colleague and guided her to where he wanted her to go. She turned round, looking up from below and saw his face. She subsequently identified him as Millar from the police photo board. The women, lying on the floor, heard the robbers going through the drawers and shouting, "Where's the big money?" They were told it was in cash drawers at the back of the counter and they left the bank with approximately $17,500 in cash.
Mrs Crellin was, if I may say so, well cross-examined on the issue of identification. She agreed that she had seen the robber's face for "maybe a second, two seconds" but, she added, "he was very, very close". She agreed her identification from the photo had occurred some six and a half months later and that an assertion that she looked at one of the robbers was missing from the first statement she made to the police. She said that her identification was actually based "on a vision that came" to her in the shower. She added, "...the face just came straight at me from nowhere". In the vision there was no scar on the bridge of the bandit's nose. She could say nothing about his eye colour. Cross-examined by counsel for the applicant, she said that she saw the man in the grey top (which the Crown alleged was the applicant) for some 30 seconds. She did not see his face and could not identify him.
The Crown called several witnesses as to subsequent events. One saw two solid males come out of the bank in a hurry, the first wearing a blue top and the second a military style jacket. This man was close to or over six feet in height and taller than the other. He was carrying a bag from which a rifle butt protruded. Another witness, nearby, saw two men running towards her wearing grey and blue tops with hoods pulled over their heads. She, too, saw the gun butt. They ran to a car park from whence a "maroony" coloured car, which "looked like" a Commodore quickly reversed.
The applicant and Millar did not give evidence at the trial nor did they call any evidence.
The applicant appeared unrepresented on the hearing of these applications. He made some oral submissions. He also supplied the Court with a detailed written outline of argument which was followed, after the Court had reserved its decision with a "Supplementary" written submission. These documents totalled over 270 paragraphs. In his submissions and arguments, the applicant did not always address the grounds in the order in which they have been pleaded. I make no criticism of him for this, doubtless he gave of his best in the circumstances. I have assembled his arguments and submissions so that they address the grounds in turn.

Ground 1 - "The verdict was unsafe and unsatisfactory"

This ground was argued by both counsel for the Crown and the applicant as requiring this Court, in accordance with high authority, to undertake an independent review of the whole of the evidence and then ask whether upon that evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. M. v. The Queen[1994] HCA 63; (1994) 181 C.L.R. 487 and cases cited therein. Although he did not expressly state it, I have taken the applicant to be desirous of grounds 2 and 4 being considered in conjunction with ground 1, as well as being given independent consideration.
The way in which the trial was conducted by the parties is well conveyed in the following passage which occurs at the beginning of the charge.

"And your critical question in this case is not whether there was an armed robbery or whether there was a theft of a motor car, that particular motor car, ENE-760, which was used in part of the robbery, but whether you're satisfied beyond reasonable doubt that Mr Millar and Mr O'Brien, or one or other of them, was one of the robbers of the bank and was one of the people in the motor car when they left the carpark having been to that bank." (184) Shortly thereafter, his Honour added: "...all counsel have addressed you on the basis that it is perfectly obvious that it was a stolen car and that it is perfectly obvious that there was an armed robbery on the bank..." (185/186) As the jury were about to retire they were told: "The Crown has to establish that the two offenders are, as they allege, in the armed robbery, Mr Millar and Mr O'Brien. The two accused do not have to disprove anything." (245)

In his written arguments, the applicant devoted a deal of effort to the proposition that the evidence of the witnesses other than Harrison had little, if any, probative value in the sense of proving that he was one of the robbers and that he had used the car in connection with the robbery. This effort was unnecessary because the jury were repeatedly told that the only evidence against the applicant was the evidence of Harrison.
They were also told, in a manner which does not admit of criticism, that they must afford the two accused separate consideration and act only on evidence relevant to each. In the course of his charge, the learned judge said the following:

"...(the Crown Prosecutor), in his final address, conceded that the evidence in the case of Michael Martin O'Brien comes only from Jeffrey Harrison." (228) "On the other hand, (counsel for O'Brien), in his final address, emphasised that the only evidence against Mr O'Brien was the evidence of an accomplice." (229) "In relation to O'Brien the only evidence comes from Harrison." (240) (The jury was also directed that in law there was no evidence capable of corroborating Harrison's evidence in the case of the applicant.)

No exception was taken to these directions.
The applicant made, in connection with this ground, a sustained attack on Harrison's credibility, submitting that for a variety of reasons he was a witness who could not be relied upon. The following contentions were advanced:
(i) The Telstra records showed the phone call from Harrison's premises to O'Brien's mobile service had been made at 12:55 p.m., whereas, in his evidence, Harrison had placed it between 1:00 and 1:30. The judge had remarked to the jury that the Crown "cannot say who answered" the call.
(ii) There was evidence that a document of the bank, emphasising its lack of security arrangements, had found its way to Harrison's office. Cross-examined, Harrison had asserted that it had come there to be photocopied. His wife, to whom the document was addressed, gave evidence that she had no idea how it had got there.
(iii) Harrison's evidence was weakened by inconsistent statements he had made to the police. In this connection the applicant cited a number of references to two police statements made by Harrison on 12 and 20 December, 1996. He cited a lengthy passage from page 3 of the first and a passage from the second.
(iv) As to his description of events prior to and after the armed robbery at the bank, Harrison was "short on detail" and his account involved conflict and confusion. The applicant gave examples of what he termed "contradictions". He pointed out that Harrison, having said that he and Millar had spoken about Mrs Harrison "working at the bank and what sort of money, and everything was there", went on to say, "I didn't know anything about it, and I didn't want anything to do with it". So, too, Harrison's evidence at one point was, "That I didn't want anything to do with it. And if anything did happen that Lorraine wouldn't be there." The applicant also gave examples of confusion referring to Harrison's evidence, "...they'd (the applicant and Millar) meet me in Burgundy Street, Heidelberg - I mean Brown Street, Heidelberg, sorry...". An example of Harrison being "short on detail", said the applicant, was his failure to mention any enquiry by him as to his share of the proceeds when the robbers returned from the bank. The applicant pointed out that during his cross-examination Harrison had said "If I remember rightly Shane rang a mobile from my office". He added that he thought this was so because "that's on the record of the telephone calls". Yet he later admitted that the telephone records of the business were kept by its accounting department and he did not keep a record of his own calls. Asked if he had meant phone calls from the business, he replied "Well, I never got the bill. The bill went straight to head office." The applicant submitted that Harrison here was both giving hearsay evidence and indulging in recent invention. He posed the question "How could Harrison say it was a call to a mobile number when at the time of the call he had walked to the other side of the room." (104).

(v) Harrison, submitted the applicant, had his own purposes to serve. The evidence showed that at the time he had been charged with the armed robbery he had been caught driving a stolen car (other than that involved in count 2). After initial evasion, he then incriminated the applicant and Millar and acknowledged in his evidence that by making a statement to that effect he would later be getting into the witness box and giving evidence. He had behaved with insincerity to his wife and others after the offence. On his own plea for the armed robbery and the unrelated theft of the motor car, he agreed that his lawyer had painted him as being blemish free and of impeccable background. However, under cross-examination, he admitted that, being in a car business at the time, he had "written out some bad roadworthys" and had incurred a conviction "roughly" about early 1996 for dishonesty - "for false number plates". The following passage from his evidence at committal proceedings was read to him under cross-examination:

Q. "You've led, it would be fair to say to you, would it not, you've led a fairly dishonest life have you not over the last three years?" A. "Over the last three years?"

Harrison had responded "I can't remember that question." He was challenged as to this statement and counsel continued: "That bit is there and do you now tell this jury that that's in fact true from that date?" He answered: "Well, if it says it in there, yes."
(vi) He further agreed under cross-examination that it suited him to have this "blemish free" image presented to the judge who was to sentence him and that his sentence was, "a pretty good result". He had done nothing to correct the impression being conveyed to the judge.
(vii) Although Harrison agreed he did not know at the time to whom Millar made the phone call from his office, he had said at one point in his evidence "If I remember rightly Shane rang a mobile number from my office".
(viii) Harrison admitted that after charges were laid that he wore, at the behest of the police, a concealed tape recording device on his person on occasions when he spoke to Millar. Yet nothing incriminating of Millar emerged from the taped conversations.
As to ground 1, counsel for the Crown submitted that the verdicts were not unsafe or unsatisfactory. Harrison, from reasonable opportunity, plainly identified the applicant. The jury were given comprehensive directions about identification evidence as to which no exception was taken. The credibility and accuracy of Harrison was a matter for the jury who had the advantage of hearing and observing him, M. v. R. (supra) at 493. As the applicant gave no evidence his silence allowed a more ready acceptance of Harrison's evidence. R. v. Neilan [1992]1 V.R. 57.

Ground 2 - "The judge's charge was insufficiently balanced"

As to this ground the applicant submitted, generally, that the judge should have directed the jury in more forceful terms; that he failed to articulate warnings designed for the protection of accused persons in an appropriate way; that he created prejudice to the applicant by other directions and that he failed to adequately put the defence. The judge spoke of the Crown case, it was submitted, in terms of "how it happened", but in dealing with the defence case, he made many references (some 37) to what defence counsel said or submitted. As I understood the applicant, he was saying that the charge gave the impression that the Crown was able to rely on evidence whereas the defence relied merely on argument. In addition the following matters were specified:

(a) The judge did not sufficiently point out to the jury the inconsistent statements made to the police by Harrison.

(b) The judge made in the course of the charge, misstatements of fact.

(I) At p. 199 he said.: "It was $25,000 to $30,000 he (Harrison) said in evidence was owing, but that wasn't all money borrowed in terms of $50 here and $500 there or whatever it was. There were two cars involved in that $25,000 or $30,000." (Emphasis mine.)

The learned judge also remarked as to the debt "Mr Millar owing or not owing as the case may be, money to Harrison." (190)

The applicant emphasised that, at the trial, the Crown did not dispute that the debt was $25,000 - $30,000 plus the unpaid prices of two utilities.

(II) Another misstatement alleged related to the issue of whether Harrison had met the applicant before the day of the bank robbery. He denied suggestions in cross-examination that he had previously met him on two occasions. The judge told the jury "There is identification evidence from Mr Harrison, a man who had not met, it was conceded, O'Brien before." (243, emphasis mine.) According to the applicant, from the defence point of view, an absence of earlier meetings was most certainly not conceded.

(III) A further misstatement occurred, submitted the applicant, when his Honour referred to Mrs Harrison's presence at the robbery as a "quirk of fate" (239). This should have been described, so his argument went, as a "gross act by Harrison putting his wife in danger."

(IV) A yet further misstatement had occurred, complained the applicant, when the judge, describing events after the robbery said, "Then when they returned to Brown Street, in the maroon car and after leaving it there." (231) Harrison's evidence, said the applicant, was that the car was parked, "around the corner", "in a - a block of units", presumably around the corner from Brown Street where he said he had waited. There was evidence, according to the applicant, that the car was found in a street called Martin Street, a street which runs off Brown Street.

(c) The applicant also claimed that the judge's directions touching acting in concert were extremely unfair to him in that his Honour used the actual account Harrison had given as an example of that concept.

"Now, you may think it strange that you know that Jeffrey Harrison pleaded guilty to the crime of armed robbery and he was a couple of kilometres away, but presence is given a wide meaning. He was there as the driver of the ultimate getaway car, when there was a change-over and ENE-760 was discarded and they went off in the Pajero, and were ultimately dropped off at the Preston Cricket Ground, I think it was. So there it is. I do not think there is any argument here that the offenders were acting in concert." (tr. 207)

(d) The judge fell into error occasioning him prejudice, submitted the applicant, by making repeated references to the 12:55 p.m. phone call as if it were a matter of significance, although he had told the jury it could not amount to corroboration of Harrison's evidence.

(e) The applicant also complained that by using the term "the accomplice" frequently, the judge conveyed "the very clear inference...that a person can only really be an accomplice to another person. Harrison was not an accomplice to any inanimate object - so he, in the mind of the jury must have been an accomplice to some person or persons, and the only other people on offer were myself and Millar."

As to this ground, counsel for the Crown submitted the charge was sufficiently balanced. Harrison's evidence was identified as the only evidence against the applicant. Extensive reminders were given to the jury as to Harrison's cross-examination. The evidence was that Harrison had not previously met the applicant. As both the prosecution and defence cases properly assumed that Harrison was acting in concert with the actual robbers the real issue was whether the Crown had proved that the applicant was one of them. No exception was taken as to matters raised in argument on this ground.
I now turn to the resolution of ground 2. In the course of preparing this judgment, I have read the charge on at least 20 occasions. I am unable to discern the alleged lack of forcefulness of which the applicant complains.
I will make the following observations about the charge of the learned judge. It has a format which is customary in Victorian criminal trials in that it commenced with a number of legal directions, followed by a quite detailed review of the evidence of Mrs Crellin and criticisms thereof. Directions as to identification evidence had immediately preceded this review. His Honour then turned to the evidence in the trial of the applicant dealing with Harrison's purported identification of him and the phone call made to his mobile service. He made it clear to the jury that he did not intend to refer to the whole of the evidence. As his Honour remarked to the jury, it had been "a very short case" and "counsel have grappled very well with the evidence". The judge invited the jury to request any part of the evidence to be read to them. A warning concerning the evidence of an accomplice then followed. His Honour directed the jury that there was not in law any evidence capable of amounting to corroboration of Harrison's evidence so far as the trial of the applicant was concerned, but that there was such evidence viz the identification by Mrs Crellin, in the trial of Millar. The learned judge then summarised the prosecution case against the applicant directing the jury that the only evidence came from Harrison. He repeated criticisms made of Harrison by defence counsel.
In reviewing the evidence his Honour had, perforce, to refer only to the witnesses for the prosecution. But to my mind, he both appropriately delivered warnings designed for the protection of the accused and made ample reference to the cross-examination of defence counsel and the criticisms they made of the vital witnesses Mrs Crellin and Harrison. Perusal of the transcript of the charge shows somewhat more than nine pages devoted to criticisms of Mrs Crellin's evidence and the relevant cross-examination. (I mention Mrs Crellin's evidence simply to show the general balance obtained.) So, too, some six pages were thus devoted with respect to the witness Harrison. In my opinion, the repeated references to submissions of counsel for Millar by the judge would have reflected no more than the thoroughness of her efforts. As his Honour remarked, "counsel have grappled very well with the evidence". Neither counsel raised any exception on the basis that the charge was unbalanced. The learned judge made it perfectly clear to the jury that it was for them to decide what had happened.
The applicant is correct in his contention that his Honour misstated the evidence as to the amount of Millar's indebtedness for the judge said to the jury, "There were two cars involved in that $25,000 or $30,000" (241). In fact, the evidence showed a debt of $25,000 to $30,000 plus sums unpaid for two utilities (100, 114). I am unable to accept the applicant's submission that this was a serious error. The jury had heard the evidence themselves and even by his Honour's misstated account the debt was large and Harrison had admitted his concern about it. These were the matters which were of significance in the suggested motive in Harrison to lie. As no exception was taken as to the misstatement by either counsel it cannot have been viewed by them as a matter of importance.
In as much as the impugned directions involved an acceptance that Harrison in fact played the role he alleged I cannot see that the applicant was disadvantaged. I would accept the submission of counsel for the Crown that at the trial both prosecution and defence cases properly assumed that Harrison was acting in concert with the actual robbers. Defence counsel, as we have seen, did not dispute the substance of Harrison's evidence as to this. The following question was put to Harrison by counsel for Millar as to events at Harrison's business on the day of the armed robbery:

"I say to you this, yes, because you had a job lined up and that job was the armed robbery on the bank where your wife worked, and that's why you wanted Mick and Shane out, you had your mates whomever they were, be it Pat Christofi and Michael Malkoun, you had them lined up, ready to go, and you wanted Shane Millar and Mick out of your premises?" (139)

The applicant's counsel put this to Harrison:

"I'm putting to you that that's really an easy way out, is for you to identify two innocent men in this armed robbery that you in fact orchestrated yourself?" (163) (Emphasis mine.)

As to the telephone call from Harrison's premises, it was, in my opinion, a significant piece of evidence in the trial of Millar warranting the judge's mentions of it. For Harrison's evidence was that Millar, having said on the day of the robbery that there was "someone else involved that'd be interested", made a phone call and said he would be back in approximately an hour, at which time he returned with "Mick". Counsel for Millar made the point to the jury by cross-examination and her final address, that there was conflict between Millar's evidence as to the timing of the call and the Telstra records. She obtained from him that his evidence was that the timing of the call was roughly 1:30 and that he had said this in his evidence at the committal, being "pretty sure" of that timing. This conflict was explored by counsel with the jury as the judge's charge indicates. The learned judge referred to this matter in his charge saying that the jurors would "no doubt" find the call was made at five to one. He reminded the jury that the Crown could not say who answered the call. He told the jury that the weight they should give to the conflict was a matter for them.
His Honour did describe the presence of Mrs Harrison at the robbery as "a quirk of fate". He might have described it otherwise. However, he clearly told the jury that they were not bound to act on any comments he made. I do not think there is anything in this point.
The applicant's complaint that the judge misstated the evidence by saying that the evidence that the applicant had not previously met Harrison was "conceded" is, I think, made out. This can, I believe, be safely ascribed to a mere slip. It is significant that no counsel sought any correction of it.
I do not think anything turns upon the applicant's complaints touching Harrison's remark about the phone call and the judge's description of where the stolen car was left. No-one made anything of them at the trial.
As to the alleged inconsistencies in Harrison's police statements, I shall deal with this matter in the course of the resolution of ground 1.

Ground 4 - "The judge erred in his directions and redirections on accomplice evidence"

The applicant said that, to his mind, the use of the term, "accomplice", by the judge in directing the jury as to Harrison's evidence carried an implication that he was guilty. Its use, he contended, undermined the effectiveness of a warning ostensibly made for his protection. He referred to the well known case of R. v. Faure [1993] VicRp 87; (1993) 67 A. Crim. R. 172 at 179, citing the following:

"The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such (witnesses about whom a warning should be given) witnesses."

as part of a contention that the judge's warning was not tailored to the particular circumstances of his case, in that it should have included references to: the fitting by the police of a covert tape recorder to Harrison produced nothing when he spoke with Millar; that Harrison could not supply details that, were he speaking the truth, one would expect him to know if he had committed the robbery with the applicants. Harrison, said the applicant, had his own purposes to serve. The police had caught him with a stolen car. These circumstances, he submitted, warranted a separate warning in themselves as did the circumstance that he had given a promise to give evidence for the Crown. Yet further separate warning was required in that, according to the applicant, Harrison had misrepresented his past to the judge who had sentenced him.

The applicant also asserted that the judge had called Harrison "the" accomplice, "at every opportunity without qualification". This conduct, said the applicant, "carried with it the very strong connotation that the trial judge had accepted Harrison as my and Millar's accomplice". The judge should have said that Harrison was "an accomplice to the commission of the offence" or the like. He further contended that the jury could have very easily thought that the question of Harrison's role as an accomplice to himself and Millar had been answered by the judge as a matter of law and was not a matter for them.
As to this ground, counsel for the Crown submitted that the judge gave a direction which dealt with all necessary matters. He referred to Kelleher v. R. [1974] HCA 48; (1974) 131 C.L.R. 534 at 553 per Gibbs, J. In particular, counsel submitted, the judge informed the jury of the danger of convicting in the absence of corroboration and the reason for that danger. See R. v. Turnsek [1967] VicRp 69; [1967] V.R. 610 at 615 per Smith, J. Further, it was said, the only exception taken was followed by a further direction (250) as to which there was no exception. The Crown relied on R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643. Further, the direction of the judge was sufficient inasmuch as it clearly adverted to the danger of the jury convicting in the absence of corroboration and to the reason for that danger. The sole exception taken (and not by counsel for the applicant) did not relate to any matters raised in this ground.
I now turn to the resolution of ground 4. In my opinion, His Honour gave directions touching the circumstance that Harrison was an accomplice which were unexceptionable. He appropriately warned the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice and directed them that there was in law no evidence capable of amounting to corroboration of Harrison's evidence concerning the applicant. His Honour said:

"In this case there is, as you have been correctly told by (the Crown Prosecutor and the applicant's defence counsel) no evidence capable as a matter of law of amounting to corroboration of Harrison's evidence so far as O'Brien is concerned and I so direct you." (238)

His Honour added that the jury should not convict on the uncorroborated evidence of Harrison "unless you have subjected the evidence to close and careful scrutiny and after that scrutiny are satisfied of its truth and satisfied that it is safe to convict upon it..." (239)
His Honour's directions touching the law as to accomplices cover some four pages of the transcript and his summary of counsel's arguments as to Harrison is extensive. The directions followed the conventional, standard form. Leaving aside the applicant's particular criticisms for the moment, I am unable to find error in the directions. At the end of the charge counsel for the Crown indicated he had no exceptions, as did counsel for the applicant. Counsel for Millar pointed out that in the course of his directions as to an accomplice his Honour had said as to such a person:

"...An accomplice seeks to justify his own conduct and in doing so he may often attempt to seek (shift) the blame wholly or partly onto others and in the process he constructs, and this is accomplices generally, I am not suggesting that it happened here, but the defence do, of course, there is no onus on the defence." (236)

Counsel expressed concern as to the phrase, "I am not suggesting that it happened here".

His Honour then put a formula of words to counsel by way of a proposed redirection and she agreed with it. Redirection took place accordingly.
I am unpersuaded that the directions as to evidence of an accomplice would have conveyed an implication to the jury that the applicant was guilty as charged. I have already referred to his Honour's directions as to the "critical question". (184) This direction was followed by others - that the jury were not bound by comments of the judge as to the facts; that the burden of proof was on the Crown to prove the guilt of the accused beyond reasonable doubt and that neither of the accused had to disprove anything. Nor am I persuaded that the accomplice directions were insufficiently tailored to the circumstances of the case. It is true that his Honour did not make specific reference to the lack of result from the covert taping of Harrison. But the re-examination of Harrison showed that there was little of benefit for the defence in this matter, for it emerged that, while wearing the concealed tape-recorder, Harrison had only spent approximately ten or 15 minutes with Millar on one or two occasions. The learned judge, to my mind, adequately referred to the many criticisms made of Harrison's evidence, the manner in which he gave it and his motives for giving false evidence and minimising his own role.

It is clear, therefore, that neither defence counsel heard the part of the charge relevant to this ground as the applicant says he heard it. His counsel did not see the directions as inadequate or insufficiently tailored to the case. As to the applicant's assertion that the judge called Harrison "the" accomplice at every opportunity, the transcript simply does not bear this out. Nor, in my view, does the relevant part of the charge convey to the jury that the question whether Harrison was an accomplice to the applicant and Millar has been removed from their consideration. The whole tenor of this part of the charge, dealing as it did with the matter of corroboration and the danger of conviction in its absence stands in the path of such a contention. Repeated reference was made to the onus and standard of proof. "Were you satisfied beyond reasonable doubt that Mr Millar and Mr O'Brien were the offenders?" (243) Nor were the directions untailored to the circumstances of the case. References were made by his Honour to Millar's debt and the motive it was said to provide to Harrison; his resort to bad company; his alleged deceit upon his own plea and to the unsatisfactory nature of his evidence as to the bank letter. He did not mention every criticism available of Harrison but he was not obliged to do so. Certainly no exception was taken that his review of those criticisms was inadequate.
In relation to his written submissions concerning Harrison the applicant cited a passage from the judgment of Salmon, L.J. (speaking for the Court of Appeal) in R. v. Henry and Manning (1968) 53 Cr.Appr. 150 at 153. He cited the passage in these terms:

"What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that it is really dangerous to convict on the evidence [that requires corroboration] alone."

In those submissions the applicant laid great weight upon the expression "really dangerous". He states:

"The trial judge erred badly when he did not `...use clear and simple language that will without any doubt convey to the jury that it is really dangerous to convict on the evidence [that requires corroboration] alone.'" (His emphasis.) "Nowhere in the above prosaic direction (directions at pp. 238/9) can I detect clear and simple language that would have conveyed to the jury, without any doubt, that it is, to use Lord Justice Salmon's words from Henry's Case, really dangerous to convict me on HARRISON'S evidence." (Emphasis his.)

Henry and Manning was a case in which, so far as one appellant was concerned, there was no corroboration of the evidence of a prosecutrix who complained of rape. The correct citation is as follows:

"What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all."

While I note in passing that directions in these terms would now offend s.61 of the Crimes Act1958, my experience has been that the expression "really dangerous" is not used in Victorian courts in relation to directions touching lack of corroboration of accomplices' evidence. "Dangerous" is the expression to which resort is usually made and it is that expression which the trial judge repeatedly used (pp. 237, 238 x 3, 250). In my opinion, its use thus was both appropriate and sufficient.
This ground in my opinion fails.
I now turn to the resolution of ground 1, which I shall consider separately and also in conjunction with grounds 2 and 4. I propose to later address, seriatim, the matters raised by the applicant. But, it is appropriate at this point to refer, in connection with this ground, to the role of the jury. In the joint judgment of Mason, C.J., Brennan, Deane, Dawson and Toohey, JJ. in M. v. The Queen (supra) the following passage appears at 493:

"But in answering that question (whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty) the Court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."

In the same case Brennan, J. said at 507:

"It is the jury's composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life."

In Whitehorn v. The Queen[1983] HCA 42; (1983) 152 C.L.R. 657 Dawson, J. observed:

"But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury. In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. A court of appeal is concerned to maintain the standards required by the law in the conduct of trials, including a standard of proof. It is concerned to discern whether the evidence is capable upon that standard of proof of supporting a verdict of guilty reached by a jury. No doubt when an appeal court is required to embark upon questions of fact there is a coincidence of function between it and a jury because a jury, properly directed, is concerned to apply the same standard. But the coincidence is far from complete, for the functions of a jury extend beyond those which an appeal court is required to exercise or is capable of exercising." (687) "It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility,...such may well be the case. It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination." (688) (Emphasis mine.)

Consistently with authority, it is proper to look at the strength of the defence case in order to ascertain whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the accused. Palmer v. The Queen[1998] HCA 2; (1998) 72 ALJR 254 In this particular case I believe it is necessary to make such an examination of both the defence of Millar and the defence of the applicant because they were, to my mind, significantly different.
An examination of the transcript reveals that Millar, through his counsel, sought to advance the following defence:

* That Mrs Crellin was mistaken in her identification of Millar.

* That Millar did go to Harrison's premises about two o'clock on the day of the armed robbery and indicated to Harrison that he and the applicant were going to perform some work in Fairfield.

* That Harrison organised the armed robbery but utilised two men other than Millar and the applicant in its commission.

* That Harrison's evidence that he and the applicant were involved in the armed robbery was false.

* That Harrison gave such false evidence:

(a) Because he was very angry with Millar over Millar's failure to pay the debts.

(b) Because he wished to minimise his punishment having been caught for the armed robbery and another offence.

* That Harrison was of poor character; had engaged in deceit in various ways and was unworthy of belief. His evidence was unconvincing.

It is instructive to see how much of this proffered defence was supported by evidence. Cross-examination by Millar's counsel established that in relation to Millar's debts, Harrison was, variously, frustrated and angry. His father and his wife were also worried and were looking to him to make amends for the money was from his father's business. The amount of the debt was established as being to the order of $25,000 to $30,000 plus the unpaid price of two utilities. He agreed that Millar prevaricated over the debt saying he was waiting on a compensation payout. He also agreed he had followed Millar one night so that he could find out where he lived and that he had called at the house on other occasions enquiring about Millar's whereabouts of his wife and children. He was not satisfied with their responses. He agreed that it had got to the point that he was "pretty much seething".
Counsel also brought out that Harrison had first implicated Millar and the applicant after he had been caught by the police in a stolen blue Commodore and that he had signed a statement in the belief that he would later be getting into the witness box and giving evidence. He said he "would have thought" that if he gave evidence he might get a reduced sentence for the robbery alleged in count 2 if he gave such evidence. He said that he knew he had to stick to his story and that he would imagine he might be charged with perjury if he did not.
Turning to the proceedings where he had in fact been sentenced, counsel suggested that the sentencing judge may have been misled. Harrison conceded that his sentence was "a pretty good result".
Thus far, it may fairly be said that there was some evidence supportive of Millar's defence.
As to other aspects of it, Harrison denied suggestions:

* That on the afternoon of the robbery Millar and the applicant had come to his business and that Millar said that he and the applicant were going to another part of Fairfield to do some work.

* That he (Harrison) had, on that afternoon, "lined up" a robbery to be performed by Christofi and Malkoun who were "ready to go".

* That he, Harrison, made the telephone call to the applicant's mobile service at 12:55 p.m. trying to contact Millar.

* That he had known the applicant before the day of the robbery.

* That "basically in his mind" the applicant and Millar were "sitting ducks".

It is also instructive, I think, to set out now the defence proffered by the applicant. It is not entirely clear, but he probably relied in part on the evidence of Harrison's animus towards Millar. No doubt he also relied on the contentions that Harrison was seeking to minimise his punishment and that he was of poor character and should not be believed. I have already noted the evidence which might be said to be supportive of these contentions.
Otherwise, the defence of the applicant was:

* That Harrison had falsely implicated him.

* That Harrison, and not Millar, made the phone call at 12:55 p.m. to the applicant's mobile service, seeking Millar.

* That Harrison had met the applicant twice before the day of the armed robbery upon Millar's introduction and (presumably) was thus able to describe him and to know him as a friend of Millar.

* That Millar and he were indeed at Harrison's premises about two o'clock on the day of the robbery when Harrison was told they were going to do some work in Fairfield - some lawn mowing or something of that nature.

However, all the matters in the preceding paragraph, when suggested to Harrison in cross-examination, were denied by him. The following question was put in cross-examination:

"I am putting to you that that's really an easy way out is for you to identify two innocent men in this armed robbery that you in fact orchestrated yourself?" Harrison answered: "No."

Something of the applicant's counsel's final address can be gleaned from the judge's charge. He apparently said as to Harrison:

"He did not have a proper opportunity of making an identification of the man Mick. It was dismal evidence and he had a motive to name O'Brien; the motive was that O'Brien was an easy mark."

There was no evidence (nor was it suggested) that Harrison had any animus towards the applicant. The sole suggestion was that Harrison included him in a false scenario because he was "an easy mark".
It should be noted that in addressing this Court the applicant declared that his defence counsel had "made up" the suggestion that he had come to Harrison's business on the afternoon of 14 November and that it had never been his (the applicant's) contention that he was going to work. He said his true defence was an alibi to be offered by his wife but this was dismissed with the remark "wives aren't really good alibi witnesses".
As the learned judge gave clear and careful directions that it was the answers given by witnesses to questions which constituted the evidence, it would not have escaped the jury that a considerable amount of the applicant's proffered defence was unsupported by evidence.
I now turn to the individual submissions of the applicant.
The applicant submitted that Harrison's evidence was "short on detail" and contained serious inconsistencies. As to most of the inconsistencies, he relied on the content of parts of his statement of 12 December, 1996. He pointed to the circumstance that Harrison referred to Cleve Street in his evidence and Cleve Grove in his statement. He asserted Harrison's evidence of his meetings with the robbers before and after the offence contained confusions and contradictions in relation to his own conduct. The applicant developed this submission in some detail in his written submission wherein he made a number of references to two police statements made by Harrison on 12 and 20 December, 1996. He cited a lengthy passage from page 3 of the first statement and a passage from the second. The problem with these particular citations is that neither of them went into evidence before the jury. Neither of the statements was tendered in evidence, as such, but aspects of them came before the jury during cross-examination. There were a number of references to a record of interview made by Harrison which was, as I understand it, the second statement referred to by the applicant. I have considered all these aspects and references. To my mind, the most significant ones were the description Harrison gave in a statement of "Mick"; the conflict between his second statement of 20 December, 1996 wherein he said he would recognise "Mick's" face if he saw it again because there was no way he would ever forget it and the absence of any such assertion in his first statement; another description of "Mick" in his record of interview and an assertion that he did not know the armed robbery was going to happen until 14 November, which appears in an unidentified statement but which was probably the second. Thus, aspects of Harrison's statements did come before the jury. Their selection lay in the discretion of counsel. This Court is concerned with the actual evidence before the jury.
It is clear from the judge's charge that "vigorous trenchant criticisms" were delivered of Harrison's evidence to the jury by both defence counsel and that Millar's counsel submitted to the jury that he was a "totally unreliable witness".
The matter of the bank letter being at Harrison's premises was, as the transcript shows, the subject of submissions to the jury by counsel for Millar. The conflict between Harrison's evidence and that of his wife was expressly mentioned. The learned judge repeated her submissions. I am unpersuaded that this matter was insufficiently treated.
As to the discrepancy between Harrison's timing of the phone call and the Telstra records, in my opinion this was satisfactorily drawn to the jury's attention by both defence counsel and the trial judge. His Honour plainly indicated to the jury that they would find that it was made at 12:55 p.m. The learned judge did then make as to Harrison the following comment:

"If you think it is a matter of substance, it is entirely a matter for you, whether you think that that might weaken his credibility, but this is a comment from me that it is one thing to say that a particular person is involved in a crime, it is another to be half an hour out, or 40 minutes out when it is a matter of the timing of a phone call. It is the weight that you give it, but it is there and you will bear in mind (defence counsel's) criticisms of it." (241)

(His Honour had earlier directed the jury that they were not bound by his comments. 189)

So, too, the matter of the bank document being at Harrison's premises and the conflict between his evidence and that of his wife was the subject of both argument and mention by the learned judge. The jury could have been left in no doubt that it was a matter which could affect Harrison's credit.
As to the results of the covert taping of Harrison, I refer to what I have written in the resolution of ground 4.
It will be recalled that the applicant detailed a number of matters which bore out his submission that Harrison had "his own purposes to serve". Yet again these matters were addressed by counsel and by the learned judge. As far as I can see, the only matter not referred to by the judge was the evidence that Harrison covertly wore a tape-recorder when speaking to Millar and nothing incriminating was obtained in their conversation. In my opinion, his Honour was not obliged to mention this specifically and it was not suggested at the trial that he should have done so. The reason for this doubtless lies in the re-examination of Harrison by the Crown prosecutor. When cross-examined about this matter by defence counsel (apparently based on information from Harrison's own plea) it appeared likely that meetings between Millar and the covertly taped Harrison were plentiful. Some 11 dates were put to him as being dates when he was fitted with the tape-recorder and he variously replied, "I think they were the dates", or "If they're the dates, yes." Left up in the air was the number of times he met with Millar. In re-examination Harrison said that he had only actually met with Millar on one or two days and then for no more than ten or 15 minutes. Doubtless the point was seen by those at the trial as having lost most, if not all, of its significance.
So, too, the matter of Harrison's conduct on his own plea was appropriately canvassed by counsel and the judge. Again, the jury could have been left in no doubt that it was a matter which could affect his credibility. Whether or not the evidence justified it as being a prior conviction, the judge reminded the jury "he had a conviction for false number plates, he knew people involved in illegal activities". His Honour also mentioned the matter of "the bodgy roadworthys".
I should also mention that at one point Harrison acknowledged that the following passage occurred in his record of interview:

"...I should say that it did happen he (Millar) came in and - to work in Fairfield around about two o'clock or something like that with this other bloke and said"

Question 155: "Who? Who was the other bloke?" "Mick." (146)

Re-examined, having denied that Millar and the applicant had come and said they were going to work in Fairfield at gardening or something similar, Harrison explained the passage in the record of interview as follows:

"Well, they came to my work in Fairfield. They didn't go to work, they were coming to where I was working." (He later explained that this was 712 Heidelberg Road, Fairfield.)

In my opinion, one of the principles for which Neilan (supra) stands should be applied viz that the silence of the applicant at trial permitted a more ready acceptance of Harrison's evidence. It would not have escaped the jury that the sole motive alleged for Harrison falsely implicating the applicant was that the applicant was "an easy mark". It would also have not escaped the jury that, if Harrison had indeed falsely implicated Millar and the applicant, he was taking a very considerable risk, for he would well know that the timing of the armed robbery could be established with precision. For all he knew the two men may have been in the presence of unimpeachable witnesses at the relevant time. Many criticisms of Harrison were available and were fully ventilated, but he had pleaded guilty and he did acknowledge a role for himself in the armed robbery which was not in dispute between the parties.
Having undertaken the requisite independent review of the evidence and given appropriate weight to the role of the jury in a trial where the issue of Harrison's credibility was paramount and in which the applicant did not give evidence, in my opinion it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the applicant. Having considered grounds 2 and 4 in conjunction with ground 1 there has not been shown, in my opinion, any failure to observe the conditions essential to a satisfactory trial of the applicant, nor has a substantial possibility been raised that the jury may have been misled.

"Fresh Evidence"

The applicant also sought, in his written submissions, for the Court to receive what he called "fresh evidence". It may be doubted whether this matter fell within the bounds of any ground pleaded, but as the applicant was unrepresented I propose to consider and deal with it. So, too, some of the points made as to the grounds by the applicant may appear to be trivial, e.g. Cleve Grove as against Cleve Street. However, as they doubtless did not appear that way to him, I have also considered and dealt with them. The applicant indicated the content of this "fresh evidence" by exhibiting a newspaper article to his written submissions. None of the grounds of appeal pleaded specifically addressed this matter but as the applicant was unrepresented I propose to address it. The newspaper article disclosed that early in March this year a Victorian Magistrate had been critical of the conduct of Detective Senior Constable John William Curnow, a witness for the prosecution in the trial of the applicant, at the end of certain committal proceedings. As I understood the applicant, he was contending that had the jury known of the conduct of Curnow for which he was criticised (which conduct apparently occurred some time during 1998) that knowledge may have affected their decision. The only evidence Curnow gave during the trial was that he prepared a photoboard which contained a photograph of the applicant (Exhibit "C"), which photograph was identified by Harrison as that of "Mick". While the defence challenged the identification of the applicant, Curnow was not cross-examined and it was not suggested to Harrison in cross-examination that Curnow, or indeed any other officer, had acted improperly in relation to the identification. In addition, the judge told the jury:

"...There is no argument here about any of the police evidence." (197)

It is clear, therefore, that there was no reason for Curnow's credit to be raised in the defence of the applicant. Further, had the jury come to know of the Magistrate's criticism of Curnow in some way which presently escapes me, that knowledge could not have affected in any proper way their consideration of the applicant's case.
The application to adduce fresh evidence and the application for leave to appeal against conviction each must fail.

Application Touching Sentence

The applicant submitted that, assuming Harrison's evidence was accepted, he (the applicant) was a "last minute inclusion" in the robbery. He laid store on the circumstance that his sentence was five times more that that of Harrison, who, he declared was "the principal". Otherwise, he properly drew attention to his age and his relatively recent acquisition of "an honest, reliable, straight partner". He added, "we had a child and we had a life". In a supplementary written submission the applicant declared that the matter of his sentence was a difficult area for him to address as he maintained his innocence. It will be recalled that particulars of the sole ground pleaded read:

"A contrived illusion of parity was drawn by doubling the Crown witnesses `head sentence', yet the actuality is that I am serving 5 years in prison while the `mastermind' serves 1 year."

A comparison with the sentence of Harrison does not in my opinion avail the applicant. Harrison did not have the serious prior convictions of the applicant. He pleaded guilty at the earliest possible opportunity. He made admissions to the police and the judge found his co-operation with them to be significant. He undertook on oath on his plea to give evidence against the applicant and Millar in terms of his two police statements. The judge found he had excellent prospects of rehabilitation. I have already referred to the applicant's criminal record and his sentence for seven counts of armed robbery in either 1991 or 1992 warrants being repeated - a total effective sentence of nine and a half years with a minimum term of eight years' imprisonment. The sentences on the individual counts of armed robbery were variously six and seven years' imprisonment. He had pleaded guilty. For this later offence he has received a lesser sentence after a trial. Clearly, his Honour must have given much weight to matters personal to the applicant. In my opinion, it is just not possible to say that the sentence imposed on the applicant fell outside the range of those properly available to the learned judge. Indeed, with somewhat disarming candour, the applicant informed this Court that people had remarked to him, as to his sentence, "You've done all right." This application must fail.

TADGELL, J. A.:

I agree with the Chief Justice.

CHERNOV, J.A.:

For the reasons given by the learned Chief Justice, I agree that the appeal should be disposed of in the manner proposed by his Honour.

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R v O'Brien

Supreme Court of Victoria - Court of Appeal

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R v O'Brien [1999] VSCA 78 (1 June 1999)

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