R v Pye

[2000] NSWCCA 544

CITATION:	R v Pye [2000] NSWCCA 544
FILE NUMBER(S):	CCA 60011/00
HEARING DATE(S):	25 August 2000
JUDGMENT DATE:	21 December 2000
PARTIES :	Regina Damon Harley Pye
JUDGMENT OF:	Beazley JA at 1; Smart AJ at 109; Ireland AJ at 110

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0387
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	Appellant: G Nicholson QC Crown: W Dawe QC
SOLICITORS:	Appellant: Susan N Goodsell Crown: S E O'Connor
CATCHWORDS:	criminal law - armed robbery - robbery in company - joint criminal enterprise - directions to jury - character evidence - sentencing
LEGISLATION CITED:	Crimes Act 1900 (NSW) s 97
CASES CITED:	Browne v Dunn [1893] 6 R 67 Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1985) 1 NSWLR 1 R v Short [2000] NSWCCA 462 R v Henry (1999) 46 NSWLR 346
DECISION:	Appeal against conviction dismissed; Leave to appeal against sentence refused

IN THE COURT OF

CRIMINAL APPEAL

CCA 60011/00

BEAZLEY JA
SMART AJ
IRELAND AJ

Thursday, 21 December 2000

REGINA v Damon Harley PYE

JUDGMENT

1    BEAZLEY JA: The appellant was indicted before the District Court on the charge that:

“On 5 May 1998 at Bolton Point in the State of New South Wales, when armed with a dangerous weapon, namely a .22 calibre hand gun, did rob Christine Lochrin of her wallet, 3 credit cards and money to the amount of $300.00, the property of Christine Lochrin.”

2    The Crown alleged that the appellant, and another person, Bernd Bryzenski entered the home of a Ms Christine Lochrin in the early hours of 5 May 1998, that the robbers were armed with a gun, a baseball bat and a knife with a distinctive blue handle, and one had entered the bedroom of Ms Lochrin, threatened her and robbed her of the items specified in the indictment.

3    The appellant was found guilty of the charge and sentenced to five years penal servitude with a minimum term of three years and an additional term of two years.

4    The appellant appeals against conviction. He also seeks leave to appeal against sentence.

5    There were ten grounds raised on the conviction appeal and lengthy written submissions were filed in support of these grounds. However, during the course of oral argument before the Court, it was submitted that there was one, essential, overriding point in the appeal which required that there be a new trial, namely that there had been a shift in the Crown case at the end of the evidence. In particular, it was submitted that the Crown had conducted the entire case, including in its opening, on the basis that it was the appellant who had entered Ms Lochrin’s bedroom with the gun, threatened her and stole the items specified in the indictment. However, prior to the trial judge commencing his summing up, the Crown conceded that it could not prove beyond reasonable doubt that the appellant was the gunman. It was submitted that the concession having been made, the trial judge then failed to give adequate directions particularly in relation to the change in the Crown case and had failed to separately identify the defence case. In particular, it was submitted that his Honour failed to sum up to the jury on the inferences which were consistent with the appellant’s innocence. As senior counsel for the appellant put it in his opening to this Court:

“We are talking about a circumstantial case where it has gone terribly wrong through lack of assistance by both sides to His Honour. It did go off the rails.”

6    At the time that the matter was before this Court, the Court did not have available to it the opening or closing addresses of Crown or defence counsel and a copy was not provided by the legal representatives of the appellant or by the Crown. In support of his contention that there had been a shift in the Crown case, senior counsel relied first upon the concession by the Crown, which was to be found in the transcript, which was available to the Court, that the Crown could not prove beyond reasonable doubt that it was the appellant who had the gun. He relied secondly upon an affidavit from junior counsel who had appeared at trial in which junior counsel deposed that:

“The Crown Case I understood from the start of the Trial was that Mr Pye was the occupant of the bedroom terrorising the female victim of the robbery, Christine Lochrin..

4. I recall I took this point before His Honour the Trial Judge because I saw a shift in the Crown Case.”

7    The transcript discloses that junior counsel did raise the point as to his Honour’s reference to joint enterprise when he understood that the Crown case was that it was the appellant who was in the bedroom. His Honour reminded counsel that he had sought clarification prior to the summing up as to what the Crown case was and that the Crown had indicated that it relied on joint enterprise. Junior counsel for the appellant had not taken any issue about that prior to the summing up. The transcript also reveals that the Crown pointed out that the case had never been opened on the basis that it was the accused who had the firearm.

8    The effect of the oral submission made by senior counsel for the appellant was that the trial judge’s directions, given the shift in the Crown case, were so fundamentally flawed that the trial was unfair to his client. This submission was a serious one. It was therefore of concern to the Court that no challenge had been made at trial, by the appellant’s then counsel, to such an apparently serious miscarriage. Accordingly, the Court called for the tapes of addresses and had them typed. The services of the official Court Reporting Services were not utilised because of the significant delay which was likely to occur had an official transcript been sought.

9    A copy of the Court’s typed transcript was forwarded to both the appellant’s solicitors and to the Crown.

10    A reading of counsels’ addresses at trial revealed without any doubt that the submission made by senior counsel for the appellant was entirely misplaced. For my part, I do not consider that such a serious assertion should have been put before the Court unless and until it was properly ascertained from the full transcript of the proceedings that there was a proper basis for doing so. I do not consider that obtaining an affidavit from junior counsel at trial was sufficient. That affidavit of itself is of concern, as it does not accurately reflect the complete circumstances as they occurred at trial with the result that the Court was left with a misunderstanding as to the course of the trial. Had the appellant’s legal representatives obtained the transcript of the addresses, the affidavit would have been unnecessary. The appeal would also have been presented very differently.

11    I would also stress that where an appeal revolves around the course of the trial, the Crown should, as a matter of course, ensure that the Court is provided with a full transcript of the hearing.

12    Having provided both the appellant’s legal representatives and the Crown with the full transcript, the Court was advised in a brief note from the appellant’s solicitors that senior counsel for the appellant did not wish to make further submissions on behalf of Mr Pye, although senior counsel wished to emphasise the issues of identification and circumstantial evidence. These were matters raised in the original written submissions. The Crown reasserted that there had been no shift in the Crown case. In oral submissions on appeal the Crown had virtually conceded there had been. It is thus necessary to deal with the written submissions of the appellant, as responded to by the Crown, against the background of what is now known to be the way in which the case was conducted by both parties at trial, rather than the way it was asserted the case was conducted. The lack of assistance from counsel in this regard is not to be commended.

Factual Background

13    Briefly, the evidence was as follows.

14    On 4 May 1998, Christine Lochrin was asleep at her home in Enterprise Way, Bolton Point when she was woken during the night and felt something held to her throat. A male person, whom she described as about 163 cm tall and wearing a black balaclava, a dark coloured top and greyish coloured jeans, told her to “get yer money”. She gave the man her purse which contained $358 and her credit cards. The man then produced a gun and said he knew she had “10 grand”. She saw that he was also holding a knife, which had a curved blade, and a creamy coloured baseball bat. She told him that she did not have $10,000. He began to ransack her room. Ms Lochrin then heard the voice of another young man say “[j]ust cut the cunt’s throat, but just hurry up”. After they left, Ms Lochrin realised that in addition to her purse, a bag of coins had been taken from her drawer.

15    Ms Lochrin’s daughter, Hayley Thompson, gave evidence that she was woken by a balaclava-clad young man, who was wearing a dark coloured jumper with writing on it and dark tracksuit pants. She described him as about 5 foot nine or ten. He was carrying a baseball bat which he swung at her. When he missed, he told her to stay in her room or she would be belted.

16    After that person left the room, she left her door slightly ajar, and she peered out to see what she could.

17    She heard someone yell:

“Just shoot the slut … cut her throat … I want ten grand.”

18    Later, she saw a different person to the one who had been in her room, running to the top of the stairs. In her evidence, she described the second person as wearing a dark jumper, dark pants and a balaclava. She agreed in cross examination that she had told police that he was wearing black or grey jeans. He was carrying her mother’s wallet, a silver gun and a knife. She said this person was a little shorter than the man who had entered her room. She said one of the men had been wearing a white pair of gloves, the other a blue pair.

19    Ms Lochrin’s son, John Thompson also saw two men in the house. He saw one standing at the top of the stairs wearing a balaclava and holding a baseball bat. He saw another man with a gun in his mother’s bedroom. He said both men were wearing dark clothing. The first man he saw had been wearing black tracksuit pants or jeans and was a little taller than the other man. He was able to call police on the 000 emergency number.

20    A guest in the house, Sean Neal saw a man wearing a dark coloured balaclava, bone coloured gloves and white joggers and was holding an aluminium baseball bat. He agreed in cross-examination that he had told police this person was wearing dark tracksuit pants and a dark jumper with white trim. By reference to his own height he described this person as about 5 foot 8 inches to 5 foot 9 inches tall. In cross-examination he agreed the person could have been as tall as 5 foot 11 inches.

21    This intruder told Neal to stay down. Neal remained where he was and the intruder stayed at the top of the stairs. Neal heard noises coming from Ms Lochrin’s bedroom, heard the demand for the $10,000, saw the man whom he had encountered knock on Ms Lochrin’s door, heard him tell the other man to hurry up and “[j]ust shoot the stupid … slut”. He heard the man inside the bedroom say he needed more time and the first man tell him to “[h]urry up, just slit her throat, let’s get out of here”. Neal was not cross-examined on this aspect of his evidence. Counsel for the appellant submitted that this was understandable, as at that point, the Crown case was that that person was not the appellant. Accordingly, the second person’s state of awareness of the gun was not in issue.

22    Police responded to the 000 call and stopped a Ford Fairlane shortly after it came out of Enterprise Way. The appellant was driving the car. Bernd Bryzenski was in the passenger seat. There were no other occupants. When stopped by police, the appellant was wearing black jeans, a black and white chequered short sleeve shirt, brown “Yakka” brand boots and white socks. Bryzenski was wearing dark blue tracksuit pants and a green shirt with an ARL motif on it. Later at the police station the appellant had donned a dark blue and khaki sloppy joe.

23    The appellant was searched and $300 was found in his front left hand jeans pocket. It was in the denominations of nine $20 notes, one $10 note, two $5 notes and two $50 notes. The appellant claimed that $220 of that money was his pay from his lawn mowing business. Ms Lochrin said that the $300 contained in her purse was in denominations of $200 in $10 notes and two $50 notes. A white rubber glove was located in his right pocket. When asked to explain the presence of the glove in his pocket, he said that when he heard the police sirens, he saw Bryzenski place his hand in the centre glove console. He said he panicked, reached into the console, pulled out a plastic bag and placed it in his pocket. He said he did not have the faintest idea where the glove in his pocket had come from, but assumed it must have been with the plastic bag he pulled out of the console.

24    The car was searched and the police found, in the back of the car, two self made black or dark coloured balaclavas, together with a plastic bag containing cut up track suit pants of the same material as the balaclavas. A metal pipe wrapped around one end with tape, a yellow woollen glove, a black and white woollen glove and a plastic bag containing coins and a black balaclava were found on the floor in the front of the car or under the front passenger seat. A lady’s purse containing $58.50 and a large knife with a blue handle were located underneath the driver’s seat. Ms Lochrin later identified the purse as hers.

25    Bryzenski was also searched. He was wearing Nike brand shoes, an Australian Rugby League green t-shirt and white socks with blue stripes. A .22 calibre revolver was located down the front of his underpants. Bryzenski said he had never seen it before. Bryzenski was a juvenile at the time of the commission of the crime. He pleaded guilty in relation to an offence relating to the robbery. Bryzenski was not called by the Crown or by the appellant, although the appellant said he had taken some steps to find him.

Crown Case at Trial

26    The Crown case as opened at trial was that the appellant and Bryzenski “were armed with a pistol baseball bats and a knife”. At that stage the Crown did not specify which of the two were so armed. The Crown also identified the elements of the charge which it had to prove namely “a robbery [and] a dangerous weapon”.

27    At the end of the evidence, the trial judge asked the Crown to specify what the Crown case was. The following exchange then occurred:

“CROWN: That the robbery took place. There’s no dispute about that and that shortly after that robbery it would seem 4 or 5 minutes after the car was seen speeding from Enterprise Way into Main Road and it was followed by a police car pulled over and all of the property alleged to have been stolen in the robbery was found in that vehicle including $300 alleged to have been stolen found in the pocket of Mr Pye. Weapons used in the robbery found in the vehicle, the disguises, the balaclavas were found in the vehicle so that.
HIS HONOUR: Does the Crown allege that the accused was one of a particular person involved in this robbery or one of the two?
CROWN: Well, one of two but would tend to suggest that he was the one who confronted or woke up Christine Lochrin.
HIS HONOUR: What’s the evidence that would enable the jury to reach that conclusion should it be necessary to come to that.
CROWN: Well, the Crown says it’s not necessary but just the descriptions vague as they are - the positioning of the wallet under the driver’s seat, the $300. There’s some suggestion in the evidence that Mr Bryzenski had a top on that might of had some sort of motif. He was a bit taller but - doesn’t matter which one carried the knife along those lines.
HIS HONOUR: So, you are relying on common purpose.
CROWN: Yes.
HIS HONOUR: All right, I think I understand. Thanks Mr Crown.
CROWN: Of course his conduct when he’s arrested --
HIS HONOUR: All right.”

28    The essential evidence relied upon by the Crown to prove it was a joint enterprise was the conversation overheard by the Crown witnesses when the intruder outside the bedroom called out to the intruder inside words to the effect of “just shoot [her]”.

29    Later the Crown made the concession that it could not prove beyond reasonable doubt that it was the appellant who had the gun.

The Appellant’s Case at Trial

30    At trial the appellant’s then counsel made an opening address to the jury in which he indicated he wished to narrow the issues before them. He said:

“What this case is about is that there is no direct evidence … as to identification of this man being at the premises… we don’t dispute that a robbery took place at these premises on the night. What we do dispute is that this man was involved in it”.

Grounds 1 and 3

31    These grounds were expressed in the following terms:

“ONE His Honour erred when giving directions to the jury concerning the subject matter of fact finding which directions had the effect of mis-stating the onus of proof …
THREE His Honour gave inadequate or confusing directions concerning the subject matter of circumstantial evidence.”

32    His Honour, after stating the onus in unremarkable terms, said:

“… so that at the end of the day after you have heard all of the evidence and so forth and taking into account the directions of law that I give you, what you have to ask yourself is has the Crown proven to my satisfaction beyond reasonable doubt that this accused was one of the robbers. If the answer to that question is no, I am not satisfied beyond reasonable doubt that the Crown has proved that, then you must acquit the accused. On the other hand, if you are satisfied beyond reasonable doubt that the Crown has proved that, then you must find him guilty.”

33    His Honour then went on to state:

“Could I come back now to this question of fact finding. Fact finding generally speaking is something that we all do at various levels probably each day, sometimes subconsciously. People tell you various things, sometimes at odds with each other and you sort out which one you think is the truth, and as I say, sometimes you do that subconsciously.
Well in this case it is very much the same process of course, except that because the issues in this case are so serious and the conflict so diverse, that obviously you give the evidence of this case much more attention than some day to day matter of little consequence.”

34    It was submitted by counsel for the appellant that having correctly instructed the jury as to the onus and standard of proof in the first paragraph quoted above, his Honour then proceeded to direct the jury in terms which presented fact finding as a choice between competing versions of fact.

35    This ground is not made out. Both directions quoted above are standard directions and his Honour repeatedly, throughout the summing up, correctly stated the onus.

36    The trial judge pointed out that to prove its case the Crown relied upon circumstantial evidence. He then gave a direction as to such evidence and identified circumstances upon which the Crown relied. Again he did so in unexceptional terms.

37    His Honour added:

“The Crown says that you would be satisfied beyond reasonable doubt that all those circumstances had been made out and that the inevitable conclusion you would reach from those circumstances is that the accused was a party to this robbery in the sense that he was one of the robbers.”

38    His Honour then put the appellant’s reply:

“… ‘Well that’s not right, they just haven’t got that proof. There are other hypotheses consistent with the innocence of the accused?, and in fact he [his counsel] has put one to you, namely that there were other people in the car who left the car before the police arrived at the scene and that whilst this robbery was taking place, the accused was sitting in the car waiting.”

That was the essence of the appellant’s defence.

39    His Honour then said:

“… unless you are satisfied beyond reasonable doubt that he was one of the actual participants in this robbery, that he was one of the two robbers who have been described by Mrs Lochrin and her family, then he must be acquitted …”

40    The trial judge told the jury that they must acquit the appellant if they were not satisfied beyond reasonable doubt of the essential circumstances which he had identified. The trial judge also told the jury that even if they were satisfied beyond reasonable doubt as to these circumstances the appellant must also be acquitted unless they were:

“satisfied beyond reasonable doubt that the only rational conclusion from those circumstances is that he is guilty, is that he was one of these robbers.”

41    I do not agree that his Honour directed the jury that they had to choose between the evidence of the Crown and the appellant’s evidence. Directions of this type have been dealt with by this Court on numerous occasions.

42    In R v Dwyer [1999] NSWCCA 47 the Court was concerned with a direction that “for essential purposes in this case, it is a case of your having to make a choice between two accounts, diametrically opposed, from the complainant on the one hand, and the accused on the other”. Dunford J (Meagher JA and Grove J agreeing) said:

“… if it had been left on the basis of a ‘mere choice’ between the evidence of the complainant and the evidence of the appellant, the summing-up would have been defective and a new trial justified: Liberato and Others v The Queen (1985) 159 CLR 507 at 515, 519 per Brennan J and Deane J. …
On the other hand, a reference to there being two diametrically opposed versions given by the complainant and the appellant, and even the reference to the jury having to ‘choose’ between the two versions, will not necessarily be fatal provided it is made clear to the jury that it is not ‘merely’ a ‘choice’ between the two versions, but that they must be satisfied beyond reasonable doubt that at least in its essential ingredients the version given by the complainant is true: R v Beserick (1993) 30 NSWLR 510 at 528-9, R v PAH (unreported - CCA - 18 December 1998) at 8-10.”

43    See generally R v Short [2000] NSWCCA 462.

44    In my opinion, the directions in relation to circumstantial evidence were also adequate.

Grounds 2, 5 and 6.

45    These grounds were expressed as follows:

“TWO His Honour gave directions concerning the elements of the offence which were confused and inadequate.
…
FIVE His Honour erred in directing the jury concerning the subject matter of joint criminal enterprise.
…
SIX His Honour’s directions to the jury concerning joint criminal enterprise were inadequate.”

46    Grounds 2 and 5 are predicated on the premise that there was a shift in the Crown case. I have already stated that that premise is false. Accordingly, it is not correct to say, as was asserted in the written submissions, that in his summing up his Honour introduced into the trial for the first time the notion of joint criminal enterprise. Thus, ground 5 fails and no further comment is necessary.

47    In relation to ground 2, it was more specifically argued that because of the shift in the Crown case, a number of errors had crept into the trial.

48    First, it was submitted that appellant’s counsel had only addressed on the basis that the Crown case was that it was the appellant who was the person with the gun who had entered Ms Lochrin’s bedroom. It is difficult to know how that submission could have been made without access to the transcript of addresses. The transcript reveals that the appellant’s counsel said at the very commencement of his address:

“…In this particular case [the Crown] is asking you to find this [appellant] in the house … despite the evidence and despite the facts.

It is part of the Crown case and an indispensable link in the Crown case is have they proved beyond reasonable doubt to the criminal standard that this accused was in the house … Have they proved it? No, they haven’t. They have to show that This man was in the house…”

49    The appellant’s counsel then went through the identification evidence of each of the witnesses in relation to both the person outside the bedroom and the person inside the bedroom. He concluded:

“The identification and the point that I am making is the identification given by each of the persons in the house does not match my client’s description

50    Secondly, it was submitted that there was a failure to give a direction in accordance with Browne v Dunn [1893] 6 R 67in relation to the limited cross-examination of the accused.

51    The appellant gave evidence at the trial to the effect of the case outlined by his counsel. He was cross-examined in fairly brief terms. It was submitted that he was cross-examined only on the basis that he had been the person in the bedroom with the gun. It was submitted that having regard to the Crown concession, that that case had not been proved beyond reasonable doubt, his Honour was required to give a direction in accordance with Browne v Dunn and failed to do so.

52    In cross examination the appellant was asked:

“Q Mr Pye, I suggest that you’re making all this up about two other people getting into the car with you and Mr Bryzenski. You’re making that up aren’t you?
A No I’m not.
Q You and Mr Bryzenski went around to 122 Enterprise Way and you and Mr Bryzenski did the robbery there?
A That’s false.
Q And you went into Christine Lochrin’s bedroom, didn’t you?
A No I didn’t.”

53    It was then put to the appellant that he had the same knife that was found in the car and the gun which Mr Bryzenski was found with. The appellant denied these allegations. The cross-examination makes it plain the Crown was alleging that there was a joint enterprise in which the appellant was a major participant.

54    The rule in Browne v Dunn is a rule of fairness. It was explained in Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1 by Hunt J at 16:

“Unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence …”

55    In this case, it was always the Crown case that the appellant was one of two persons who went into the Lochrin house armed with a dangerous weapon. Initially, it was also the Crown case that it was probably, but not necessarily, the appellant who was carrying the gun. The Crown put directly to the appellant that he had gone to Ms Lochrin’s home and committed the robbery and the appellant denied it. The question that he was the person who had entered the bedroom was also met with a denial. Accordingly, there was no obligation to also put that he was the person outside the room. That would not have made particular sense to the jury, especially where the appellant raised as an issue in the trial the question whether there was any evidence sufficient to identify him as being in the house at all.

56    The point has not been made out.

57    Next, it was submitted the offence particularised in the indictment was of armed robbery, not armed robbery in company. It was submitted that his Honour first gave a direction as to the elements of the offence of armed robbery in terms:

“Now there are only two essential elements to that offence. One is that the accused robbed Christine Lochrin on 5 May 1998. The second is that when he did so, he was armed with a dangerous weapon . So they are the two elements.” (emphasis added)

58    His Honour then almost immediately introduced the concept of joint enterprise.

59    The case was opened as one of common purpose. Counsel for the Crown stated:

“These two intruders were armed with a pistol, baseball bats and a knife.
…
The indictment’s been read to you. His Honour read it to you again but what has to be proven, the elements are that there was a robbery on the 5th of May at Enterprise Way, Bolton Point, a dangerous weapon, a firearm was used.”

60    Counsel for the appellant addressed the jury at one point to the effect that it was incumbent upon the Crown to prove the accused had the gun.

61    In summing up the trial judge expressly corrected the statement made by counsel for the appellant as to the elements of the offence and also made it clear that the case was one of joint enterprise. He said:

“… if you are satisfied beyond reasonable doubt that the accused was one of these robbers, and you are satisfied beyond reasonable doubt that they were acting together, they were acting as a joint enterprise, they were in it together is probably the best way of putting it, in this armed robbery, then the Crown does not have to prove that it was actually the accused who had the gun, because the law says if you commit a crime together, then you are just as responsible for the actions of your co-offender.”

And:

“… if you are satisfied that one of them had the gun and the other one was in on it, they were acting jointly, then that element of the offence would be satisfied.”

62    His Honour, after observing that, while it was a matter for the jury, it seemed that there was no real dispute but that the robbery took place, stated:

“The real issue in this case you might think is whether the accused was one of the robbers.”

63    It was submitted that by combining the elements of the offence with which he was in fact charged (that is with armed robbery, not robbery in company) with the concept of joint criminal enterprise, his Honour erroneously left it open to the jury to convict if they were satisfied the appellant was one of the two robbers, one of whom had a gun.

64    That submission was based on the false assertion introduced in this matter by senior counsel on the appeal. The case was run as one based on a joint enterprise and his Honours gave directions in relation to that. It follows that this point also fails.

65    These directions were adequate and I do not consider that the jury could have been either confused or misled given the summing up as a whole.

66    Senior counsel for the appellant next submitted that his Honour failed to make it clear to the jury that, even if it was not the case that the appellant had the gun, he had to know that the co-offender with whom he had acted jointly was armed and might use the gun in the course of the robbery.

67    His Honour’s direction in this regard was as follows:

“… what the Crown relies upon in this case is that if you are satisfied beyond reasonable doubt that the accused was one of these robbers, the Crown says it is not necessary for you to be satisfied beyond reasonable doubt that he was the one with the gun because the Crown says he was acting in concert with the other robber, they were in it together … they each knew what the other one was doing , it was obviously part of a joint activity on their part. And that can be gleaned the Crown says from the testimony of Miss Lochrin, her daughter, her son and her daughter’s ex-boyfriend who described to you what was said and what happened, and the Crown says ‘Look you would have no trouble believing that whoever these two robbers were, they were acting together’.
Now if that is the case, if you are satisfied beyond reasonable doubt that the accused was one of these robbers, and you are satisfied beyond reasonable doubt that they were acting together, they were acting as a joint enterprise, they were in it together is probably the best way of putting it, in this armed robbery, then the Crown case does not have to prove that it was actually the accused who had the gun…” (emphasis added)

68    His Honour further explained the concept of joint criminal enterprise by stating that it meant “they were in it together”.

69    This direction was given in the context that the essential evidence, relied upon by the Crown to prove it was a joint enterprise, was the conversation overheard by the Crown witnesses when the intruder outside the bedroom called out to the intruder inside words to the effect of “just shoot [her]”. His Honour specifically referred to the Crown address and to their reliance on “what was said”. In my opinion, such direction was accurate and sufficient. The appellant’s own submissions recognise that provided the jury is directed that an accused was aware of the existence of the weapon and the possibility it might be used in the robbery, that person could rightly be convicted of armed robbery.

70    A criticism is also made that his Honour sometimes referred to “robbery” and sometimes to “armed robbery”. I do not think that his Honour did so in a way that was confusing in the context of the summing up as a whole.

71    It follows that ground 2 also fails.

72    The submission was made in relation to ground 6 that:

“His Honour did not leave for determination by the jury whether in fact there was a combination by way of joint criminal enterprise and if so what the object of the joint criminal enterprise was.”

73    Again this ground is not made out. The joint enterprise was not a complicated or sophisticated one. It was to act together to rob Ms Lochrin knowing that a dangerous weapon was involved. That was made plain to the jury. Accordingly, ground 6 also fails.

Ground 4

“FOUR: His Honour erred in failing to direct the jury concerning the nature of interferences and the manner in which they can be drawn.”

74    The complaint in relation to this ground is that the trial judge did not give any directions in relation to the drawing of inferences. This is correct. This was a circumstantial case and to find the appellant guilty, the jury was required to draw inferences from circumstantial evidence.

75    However, his Honour gave clear directions as to how the jury were to go about their task of assessing the circumstantial evidence. I do not consider that giving the standard directions in relation to the drawing of inferences would have provided any further assistance. It can be assumed that this was the case, because trial counsel did not seek any further direction on this issue. In the circumstances, no ground for leave to raise the ground has been made out and I would refuse leave to raise it.

Ground 7

“SEVEN His Honour erred in directing the jury on the issue of bad character.”

76    The appellant raised good character as part of his case. The Crown called no evidence of antecedent bad character. In the summing up his Honour referred to this and then dealt with the Crown’s challenge to the appellant’s good character. That challenge was based in the main, on the case the appellant had presented in his defence - namely, that is only connection with the events referred to in the indictment was to drive a person (Bryzenski) whom he knew to have been recently released from a juvenile detention institution, together with two other persons to “score drugs” in the early hours of the morning. The Crown also relied on the appellant’s behaviour when apprehended by the police.

77    His Honour then gave conventional directions in relation to the finding as to character depending upon whether they found the appellant to be of good character or bad character.

78    It was submitted however, that:

“There is a distinction between a finding of positive good character by the jury and a failure to make such a finding … by virtue of arguments advanced by the Crown. It does not follow by a failure to make a positive finding of good character that a finding of bad character must follow.”

79    I do not consider that this ground has been made out. As his Honour said, in his closing address to the jury the Crown questioned whether they would find the appellant of good character. They relied upon the appellant’s case as well as his conduct when arrested. In relation to the former, the Crown relied on the improbability of the appellant’s evidence. In relation to his conduct when arrested, the Crown said, in what can only be described as an ironic terms: “maybe there’s two sides of him”.

80    In circumstances where the jury was confronted with a perspective which the Crown suggested was not consistent with good character, it was important for the trial judge to direct the jury as to what to do with their assessment of character if they did not accept that the appellant was of good character. I do not see any error in referring to that as involving a finding of bad character. His Honour’s directions in relation to bad character were correct.

81    Accordingly, this ground fails.

Ground 8

“EIGHT The trial miscarried by an absence of a witness, Janelle Sutherland.”

82    It was part of the appellant’s case that of the $300 in his pocket, $220 had come from his lawn mowing business for services provided to a Mrs Janelle Sutherland. Mrs Sutherland had provided him with a receipt which was tendered in evidence.

83    Mrs Sutherland did not give evidence. A medical certificate was tendered to explain her absence.

84    The trial judge referred to the absence of Mrs Sutherland as well as to the absence of Mr Bryzenski. He said:

“There was mention of course of a Miss Sutherland … Tendered in evidence and marked exhibit 3 I think is a medical report explaining her non-attendance. Also mentioned during the course of I think addresses was the absence of Mr Bryzenski who has been mentioned quite a lot in this trial from the list of witnesses.
You are not entitled to speculate about what Mrs Sutherland or what Mr Bryzenski might have said. The fact is that they are not here. If you are not satisfied that any reason has been advanced or satisfactory reason has been advanced as to why they are not here, then if it were the case that you would have expected one of the parties to call them or even both of the parties, you would be entitled in those circumstances to assume that whatever evidence they might have given would not assist that party.”

85    The Crown conceded that if the absence of Mrs Sutherland was an issue raised by the Crown, his Honour’s direction was unfortunate. It was submitted however, that no point was taken at trial as to the direction given.

86    However, the appellant does not challenge the directions given by his Honour. Rather, it was submitted that Mrs Sutherland was a very important witness for the appellant’s case and her evidence should have been before the court.

87    Mrs Sutherland was to have been called in the appellant’s case and his counsel tendered the affidavit explaining her absence. No application was made for an adjournment so that she could be made available to give evidence. There is no basis therefore for this ground of appeal.

Grounds 9 and 10

“NINE The summing up failed to separately identify the defence case, to identify all of the circumstances in evidence rather than simply those relied upon by the Crown and in particular failed to draw attention to the circumstances referred to identified in Ground Ten below.
…
TEN The verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence.”

88    In his opening address at trial, the appellant’s counsel outlined the evidence the appellant would give as to his movements late on 4 May 1998 and early on 5 May 1998. His case was that he was at a gathering in Market Way in a nearby suburb. Bryzenski and two other men he did not know got him to drive to the Woodrising Estate. When they arrived he was asked to park his car. He was told by Bryzenski that he would be gone for about 30 to 40 minutes. The other three men got out and left. When they eventually returned to the car the other men left when they found that the appellant was going in a direction which differed from that which they wished to take.

89    He told the jury that the only issue before them was the question of identification. It was asserted that there would be no identification of the appellant as one of the persons in the house.

90    There was a good reason for counsel at trial to seek to limit the issues at trial to one of identification. Counsel was aware that the Crown was able to establish that within about five minutes after the robbery the appellant’s car was seen driving away at speed from the area in which the house of Ms Lochrin was situated. When the car was stopped the property which had been taken from Ms Lochrin was found in the car along with a distinctive blue-handled curved knife. A gun was located in Bryzenski’s underpants. Only the appellant and Bryzenski were in the car and there was a body of evidence that two men armed with a gun, the distinctive knife and a baseball bat, or bats, had entered Ms Lochrin’s house and committed an armed robbery. They were wearing balaclavas and had disguised themselves. Balaclavas and clothing similar to that worn by the armed robbers were found in the car. In effect Bryzenski and the appellant were caught red-handed.

91    This was a short four day trial. It started on Wednesday 1 December 1999 and continued to Monday 6 December 1999. The second half of 3 December 1999 was taken up with the evidence of the accused. He gave evidence along the lines which had been foreshadowed as well as dealing with other matters. On Monday 6 December 1999 some brief evidence was called on behalf of the accused. This was followed by the Crown’s closing speech which was concise and less than half the length of the speech of the appellant’s counsel. He addressed at length. For the best part of a day prior to the summing up the jury had the evidence of the appellant and his witnesses and his counsel’s speech pressed upon them.

92    The appellant complained that the trial judge failed to marshal those circumstances inconsistent with the appellant being either offender and in particular with the appellant being the offender in the bedroom with the gun. Many of these matters had been adverted to in the closing speech of the appellant’s counsel immediately before the summing up. They would have been fixed in the minds of the jury. On the whole they were not telling points, but went to matters of detail of no great consequence.

93    The trial judge had focussed the attention of the jury on the critical question - was the appellant one of the two men who entered the home of Ms Lochrin and there committed an armed robbery of which she was the victim.

94    The jury received directions as to the circumstances upon which the Crown relied and which they were told, they had to find proved beyond reasonable doubt before they could convict. They were also told that the conclusion of guilt must be the only reasonable conclusion to draw. The trial judge referred to the substantive defence which the appellant had raised.

95    This was not a case in which any of the occupants of Ms Lochrin’s house claimed to be able to identify the robbers. All that they could be sure of was that two men wearing disguises and dark clothes entered the house, a gun was produced and Ms Lochrin was robbed. There was also the knife and the baseball bat or bats. The Crown case depended on the police sighting of the appellant’s car speeding from the area within about five minutes of the robbery and the car when stopped containing the appellant and Bryzenski, the whole of the property taken from Ms Lochrin, the distinctive knife, the gun and the clothes earlier mentioned. The Crown also relied on the clothes of the appellant and Bryzenski being wet (as it had been raining), the state of the appellant (agitated, nervous, aggressive, swearing and frightened) and the lies told by the appellant. This was not a conventional identification case.

96    At the conclusion of the Crown case, the appellant complained of a shift in the Crown case, albeit incorrectly. No other complaint was made.

97    In view of the appellant’s evidence and his counsel’s lengthy and detailed closing address immediately before the summing up, the trial judge focussing the attention of the jury on the key issue and reminding the jury that the appellant contended that Bryzenski and two other men committed the robbery, and the nature of the Crown case, I regard the summing up as adequate. Experienced counsel did not ask the trial judge to re-direct or further direct the jury. He no doubt appreciated that for the judge to again travel over ground which he had covered would not be useful and, indeed, counter-productive if the judge did so in a less sympathetic way.

98    It follows from what I have said that this ground has not been made out. Nor has ground 10. The evidence was more than sufficient for the jury to convict.

General Considerations

99    Finally it should be stated that except in relation to ground 5 no point was taken at trial in relation to any of the grounds of appeal. Leave is therefore required for these grounds to now be raised. This was a strong circumstantial case. A tactical decision was made by the appellant’s counsel at the commencement of the trial to limit the issue to identification - not of the appellant in the bedroom but as to whether the appellant was one of the persons in the house. No complaint was made as to the competence of counsel who conducted the trial. Indeed, as has already been explained, it is obvious why the appellant’s case was run on this tactical front.

100    In the circumstances, I would not grant leave to appeal on the grounds where leave is required, and the appellant has not made out ground 5.

Leave to Appeal on Sentence

101    In his remarks on sentence, the trial judge said that the offence was a particularly serious one and that the appellant:

“armed with a … pistol and a knife and the other person had a baseball bat … entered Mrs Lochrin’s bedroom, placed his hands on her throat and demanded money. He threatened her with a pistol.”

102    Senior counsel for the appellant submitted that although it could not be argued that the sentence was outside a proper sentencing discretion, his Honour sentenced the appellant on a basis which did not go before the jury. It was submitted therefore that his Honour should have sentenced on the basis that the appellant had played the lesser of the two roles.

103    There is no doubt that his Honour did sentence on a basis which did not go before the jury. However, once it is conceded by the appellant that the sentence was within a proper discretionary range, this Court should not interfere.

104    The sentence is clearly within a proper discretionary range, even if sentencing had proceeded on the basis that the appellant was one of two armed robbers. This is apparent from R v Henry (1999) 46 NSWLR 346. In that case, the New South Wales Court of Criminal Appeal set down a range of guideline sentences to be applied in a certain typical category of offences under s 97 of the Crimes Act 1900 (NSW). The Court stated that the features of such a typical case included:

“(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.”

105    It was held that in such a category of cases sentences “should generally fall between four and five years for the full term”.

106    In this case, each of the factors referred to by the Court are present, except that there was no plea of guilty. The Court has consistently recognised the importance of a plea of guilty in determining the appropriate sentence. As the Chief Justice commented in Henry, the extent to which regard is had to a plea of guilty varies depending, amongst other things, on the strength of the Crown case. Here, the appellant not only did not plead guilty, he maintained his innocence in the face of a strong, albeit circumstantial Crown case.

107    In a case where it is apparent that sentence has been determined on an incorrect basis, the appellate Court may still determine that despite the error, the sentence imposed by the trial judge is appropriate. This is such a case. I would refuse leave to appeal against sentence.

108    The Orders I propose are:

(i) Appeal dismissed.

(ii) Leave to appeal against sentence refused.

109    SMART AJ: I agree with Beazley JA.

110    IRELAND AJ: I agree with Beazley JA for the reasons given by her Honour.

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