Regina v Hennessy

[2001] NSWCCA 36

CITATION:	Regina v HENNESSY [2001] NSWCCA 36 revised - 28/02/2001
FILE NUMBER(S):	CCA 60703/99
HEARING DATE(S):	5/10/00
JUDGMENT DATE:	27 February 2001
PARTIES :	Regina Peter James Hennessy
JUDGMENT OF:	Spigelman CJ at 1; O'Keefe J at 6; Barr J at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/41/0021
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	J C Papayanni (Appellant) L M B Lamprati (Crown)
SOLICITORS:	Brock Partners (Appellant) S E O'Conner (Crown)
CATCHWORDS:	ARMED ROBBERY - two counts - application for separate trials not granted - similar fact evidence - photographic evidence admitted - directions - special caution - ss115 and 116 Evidence Act 1995 - photograph taken at scene of crime not within ambit of sections - identification evidence - possession of hand gun - LARCENY OF A MOTOR VEHICLE - two counts - APPEAL AGAINST SENTENCE - retribution, deterrence and protection of society
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Hoch v The Queen (1998) 165 CLR 292 Martin v Osborne (1936) 55 CLR 367 Pfennig v The Queen (1995) 182 CLR 461 R v Malcolm John McDonald (NSW CCA 12 October 1998, unreported) Sutton v The Queen (1984) 152 CLR 528 Veen v The Queen (No 2) (1988) 164 CLR 465
DECISION:	Appeal against conviction dismissed; Appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60703/99

SPIGELMAN CJ

O’KEEFE J

BARR J

Tuesday 27 February 2001

REGINA v Peter James HENNESSY

JUDGMENT

1    SPIGELMAN CJ: In this matter I have read the judgment of O’Keefe J in draft. I agree with his Honour’s orders and generally with his Honour’s reasons.

2 His Honour rejects the submission with respect to Grounds 3 and 4 concerning the tender of the video and photographs taken by a security camera in the branch of the building society. His Honour concludes that s115 of the Evidence Act is not concerned with pictures of this character. I agree. His Honour emphasises the last words of the definition of “picture identification evidence” namely “kept for the use of police officers”. I agree with his Honour’s general conclusion but on a wider basis.

3 The video and photographs from the security camera constitute real evidence of the robbery. They do not constitute “identification evidence” of any character, let alone “picture identification evidence” as defined in s115(1) of the Act. To use part of that definition, there was no “identification made wholly or partly by the person who made the identification examining pictures …”. No witness gave any evidence of identification - or indeed of any character - based on the photographs.

4 Section 115 is not concerned with the tender of “pictures” per se. It is concerned with the tender of “picture identification evidence”. It is of no materiality in this case. Nor, for the same reasons, is s116. (See the definition of “identification evidence” in the Dictionary).

5    Juries are no less susceptible than witnesses to the well-known difficulties associated with the use of pictures for purposes of identification. Her Honour gave the jury a strong direction about such dangers. There is no cause for complaint in this respect.

6    O’KEEFE J: Peter James Hennessy (the appellant) was convicted in the District Court on 12 November 1998 on four charges: two of armed robbery; two of larceny of a motor vehicle. The first charge against the appellant (count 1) involved an armed hold up on 3 October 1997 at the Wetherill Park Branch of the Commonwealth Bank. The appellant was identified by a number of witnesses as the person who entered the bank, and menaced the employees and customers with a hand gun. Having taken a substantial sum of money he escaped in a stolen motor vehicle driven by another person. The charge against the appellant in respect of the motor vehicle (count 2) was that he had permitted himself to be driven in it knowing that it was stolen.

7    The second armed hold up in respect of which the appellant was convicted (count 3) took place on 17 October, 1997 at the Unanderra branch on the Illawarra Building Society (IMB). The robber on that occasion discharged the pistol that he was carrying and seriously wounded a member of IMB’s staff. Furthermore, as had occurred at Wetherill Park, the robber escaped in a stolen car (count 4) driven by another man. The case against the appellant in respect of these charges was circumstantial.

8    The appellant was sentenced to a term of imprisonment of 12 years with an additional term of four years. He appealed against his conviction and the sentence imposed on nine grounds as follows:

1. The trial Judge erred in law in not granting separate trials of the counts of armed robbery and stealing of motor cars (i.e. counts 1-2 and 3-4).

2. The trial Judge erred in law in directing as to similar fact evidence (tendency) in respect of counts 1 and 3 of armed robbery.

3. The trial Judge erred in law in admitting into evidence the security photograph of the offence in count 3.

4. If such evidence was admitted, the trial Judge erred in law in misdirecting and/or failing to direct as to the use to be made of such evidence and the dangers of special caution needed in such use in respect of identification.

5. The trial Judge erred in law in misdirecting and/or failing to direct as to possession of the offensive weapon in count 3.

6. The trial Judge erred in law in misdirecting and/or failing to direct as to circumstantial evidence in count 3.

7. The trial Judge erred in law in misdirecting and/or failing to direct as to the elements of larceny of motor vehicles.

8. There was a miscarriage of justice on each count as the verdicts were unsafe and unsatisfactory.

9. The sentence was excessive in that:

(a) special circumstances should have been found;

(b) the circumstances;

(c) sufficient consideration was not given to the classification in maximum security in the future.

9    Grounds 1 and 2

It was argued on behalf of the appellant that the counts relating to armed robbery at the Wetherill Park Branch of the Commonwealth Bank on 3 October 1997 (count 1) and the charge of larceny of the motor vehicle used for the purpose of such robbery (count 2) should have been tried separately from the armed robbery at The Illawarra Building Society, Unanderra on 17 October 1997 (count 3) and the charge of larceny of motor vehicle used for the purposes used for such robbery (count 4). However it was conceded that if there were similar fact or like evidence linking the two sets of charges in an appropriate manner then the trial of all four charges together would have been appropriate.

10    The robbery which took place at Wetherill Park was by a person who was identified in an identification parade by three witnesses. Each was an employee of the bank and each had an opportunity on the day of the robbery to observe the robber. In addition descriptions were given by three customers, two tellers and the branch manager which tallied with the description of the appellant. One customer identified a person in the line up who was not the accused and another witness, who was shown a bundle of photographs, identified the robber as a person other then the accused.

11    There was cogent evidence linking the appellant with the robbery at Wetherill Park. Furthermore such evidence included the robber being observed to have a set of keys in his mouth at the time of the robbery - a curious and most unusual feature, but one which may have been designed to conceal the appellant’s prominent buck teeth

12    The trial Judge set out ten matters of similarity between the two offences and on the face of them they were sufficient to justify the decision that the trials of the two sets of offences should be heard at the same time.

13    Counsel for appellant has submitted that the trial Judge was in error first in allowing the matter of similar fact to be considered at all and secondly in failing to give a direction in accordance with what was said by Deane J in Sutton v The Queen (1982 - 1984) 152 CLR 528 at 559-562.

14    Before considering that submission it is appropriate to go back in history. In Martin v Osborne, (1936) 55CLR 367 the High Court considered a case based on circumstantial evidence, part of which consisted of repeated events which were said to constitute facts sufficiently similar to support a conclusion of guilt on the part of the defendant. Dixon J said,

‘ If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably opposed…the class of acts and the occurrences that maybe considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact the proved also existed…the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probably that the are accompanied by some further fact” (supra at 375-376).

15    It is also appropriate to consider some of the later cases in the High Court. In Pfennig v The Queen (1994 - 1995) 182CLR 461 Mason CJ, Deane and Dawson JJ reiterated what had been said in Hoch v The Queen (1988) 165CLR 292 namely,

“assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force… That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ’pattern’ that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution” (supra at 295)

16    They also pointed out that the probative value of similar fact evidence varies in relation to the circumstances of particular cases but that in all cases circumstantial evidence is admissible when it raises the objective improbability of some event having occurred other than as asserted by the prosecution. Furthermore in restating the law in this regard it was stressed that the passage from Hoch v The Queen (supra) referred to above,

“should not be understood as asserting that ‘striking similarities’ or the other characteristics mentioned in relation to… similar fact evidence are essential prerequisites of its admissibility in every case” ( Pfennig v The Queen supra at 482)”

17    The complaint made on behalf of the appellant based on Sutton v The Queen (supra) arises out of a reading of the judgment of Deane J which goes beyond its clear intent. That case involved an issue of identification. The evidence relied upon by the Crown in relation to a number of the sexual offences committed against certain of the victims was circumstantial. Separate trials had been sought and refused. The nature of the acts constituting or accompanying the offence with which the accused was clearly associated and those in which the Crown relied on circumstantial evidence were so strikingly similar as to render the evidence in relation to the offences admissible in relation to the others. The passage from the judgment of Deane J on which the appellant relies is not inconsistent with the direction given by the trial Judge in the present case. The discussion in which Deane J engages (at 559-561) needs to be read against the background of the words which it is introduced namely,

“I find difficulty with the proposition that a body of similar fact evidence which…is of ‘distinct’ probative force is not admissible unless that probative force is ‘strong; it is true, as Brennan J pointed out in Perry that the probative force of such evidence ‘depends upon the connexion, judged according to experience and common sense, between the facts directly established by the evidence and the fact in issue, which may be the conduct charged, the identity of the culprit or his state of mind’ and that the ‘connexion is a question of degree” (supra 559)

18    When correctly understood in the light of the ultimate decision and cautionary words of introduction by Deane J, there is no defect in the summing up of the trial Judge in relation to the evidence of similarity. Ten matters of similarity were referred to by the trial Judge; three of dissimilarity. They were that the robber at the Commonwealth Bank did not disguise himself whereas the robber at the Illawarra Building Society wore a baseball cap, which was characterised by counsel for the appellant as a disguise. No shots were fired at the Commonwealth Bank, whereas two were fired at the Illawarra Building Society. Another dissimilarity asserted by the appellant was that there was some distance between the two crime scenes. All of these considerations were put to the jury by the trial Judge who referred to the “stringent similarity tests” and the need for “something strikingly similar” between the two robberies, these need to be

‘Similarities which go beyond ones you would expect to find as between crimes of this type. That is to say armed robberies on financial institutions. Similarities so marked and destructive that the cannot be mere coincidence. You should look to see whether the similarities relied upon are so striking, or of such a clear underlying unity as to make coincidence not an explanation, and whether the similarities indicate that the same person was responsible for each offence”
and:
Only if you are also satisfied that as a matter of common sense and experience it is improbable that the person who committed the Wetherill Park robbery was no also criminally responsible for the IMB robbery, that no other reasonable explanation is available for those similarities”.

19    The directions given by the trial Judge in relation to the way in which the jury should approach the similar fact evidence extended over some ten pages. They correctly applied the law as stated by the High Court and fully outlined both cases made by the Crown and on behalf of the appellant.

20    In my opinion there was no error on the part of the trial Judge in refusing separate trials in relation to the two robberies and motor vehicle larcenies and no error on the part of the trial Judge in relation to directions given as to the similar fact evidence which went to the jury.

21    Grounds 3 and 4

These grounds relate to the admission into evidence and use made of a security camera photograph taken at the scene of the Unanderra robbery. Three matters of complaint are raised. They are that the trial Judge erred in admitting the photograph, failed to give proper directions to the jury as to the use to be made of the photograph and failed to give the special caution which is required in relation to photographic evidence of identification.

22 Counsel for the appellant argued that s 115 of the Evidence Act 1995 operated to exclude the photograph from evidence. This section, so the argument ran, precluded its use in the trial because the appellant was in police custody and had not refused to take part in an identification parade (s 115(5)(a)) Furthermore, so it was argued, even though the photograph was admitted into evidence the direction given by the trial judge did not fulfil the requirement of s116 in that the jury was not informed that there was special need for caution before accepting identification evidence nor told the reasons, both general and particular, for such need for caution.

23 This submission lacks a sound basis. Picture identification evidence is defined in s 115 (1) of the Evidence Act 1995, (the Act) to mean,

“identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers”

24 This provision, particularly when viewed against the prohibition in s 115(2) of the Act (which precludes the use of pictures which suggest that they are pictures of persons in police custody), is not directed at pictures of the kind involved in the present case. It is concerned with pictures “kept for the use of police officers”. In short s115 is concerned largely with what are colloquially known as “mug shots”. The very form of s115 directs attention to pictures of a very different kind from those taken by security cameras at the scene of a crime. Furthermore the photograph taken from the security camera was not used by any witness who identified the appellant for the purposes of making their identification, indeed the one witness who used photographs kept by police officers did not identify the accused and there is no suggestion in the evidence that the photographs which that witness was shown included the photograph taken from the security camera.

25    The complaint made on the appellants behalf in relation to the direction given by the trial Judge concerning the security camera photograph also fails.

26    An identification line up was held on 20 January 1998. Three witnesses clearly identified the appellant. A number of other witnesses who did not attend the line up gave descriptions of the robber which matched the description of the appellant. There was thus adequate evidence to go to the jury of the identification of the appellant at the Wetherill Park robbery.

27    Early in the summing up the trial Judge indicated that a particular warning would be given about the security camera photograph. It was. The trial Judge told the jury, inter alia, that;

“there is a special need for caution before accepting identification evidence… I warn you identification evidence may be unreliable”
and:
“because of the dangers of convicting on such evidence…identification evidence should always be examined most carefully”
and:
special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification”
and :
“the common experience of criminal courts over the years… has demonstrated that identification evidence, however honestly given may turn out to be unreliable”

28    The trial Judge then posed a number of question for the jury to consider in relation to the identification evidence, again informed the jury yet again to “scrutinise and examine very carefully the identity evidence” and having done this examined the situation and evidence of each of the witnesses who gave evidence of identity. In my opinion the directions given to the jury by the trial Judge were in accordance by the requirements of the law and a close examination of them reveals no error.

29    Grounds 5 and 6

The person who carried out the Wetherill Park robbery on 3 October 1997 was armed with a hand gun. That person was clearly identified as the appellant by a number of witnesses. The person who carried out the Unanderra robbery on 17 October 1997 also carried a hand gun. During the course of the robbery it was discharged, two shots being fired. The appellant was arrested on 25 November 1997. At the time of his arrest he was carrying a small plastic bag and the police evidence was that a hand gun was found in such bag. Ballistics tests were carried out on the hand gun. They established that the hand gun found in the small plastic bag carried by the appellant was the same as that from which the two shots has been fired at the Unanderra robbery.

30    Counsel for the appellant complains that the trial Judge failed to give a direction to the jury as to what constituted “possession” as a matter of law. That submission with all respect to Counsel completely misses the point in relation to the hand gun. The issue posed at the trial was whether or not the hand gun was in the plastic bag which the appellant was carrying at the time of his arrest. The appellant’s case was that there was no hand gun in the bag at the time of his arrest and that the police evidence to the contrary should not be accepted. The issue was gun or no gun in the bag, not some fine distinction as to whether the gun being in the small plastic bag constituted possession.

31    In an interview which was video recorded the appellant was shown the plastic bag and asked: “Do you agree that you were in possession of this plastic bag?” to which the appellant answered: “Yes”. However when then asked if the bag had been taken from him in the toilets at the centre at which he had been arrested, he said he had nothing to say. Later in his interview when he was again asked if he agreed that he was carrying the plastic bag he answered “No”. When asked: “And do you agree that at the time you were arrested at Parramatta you were in possession of a pistol”, he replied: “No, I agree there was one there, with, the police actually had yes but I deny possession of the gun” . Leaving aside the problems posed for the credibility of the appellant by the foregoing, what is clear is that the issue the appellant was raising was that the gun was planted on him by the police; in colloquial parlance, that he had been “loaded up”.

32    The trial Judge directed the jury that they had to be satisfied beyond reasonable doubt as to appellant being in possession of the gun. The evidence in that regard was examined in detail and the jury was directed to scrutinise that evidence carefully and in doing so to bear in mind the position of disadvantage in which the appellant was placed.

33    In my opinion the direction by the trial Judge adequately and correctly informed the jury in relation to the issue for their consideration and the onus that the Crown had to discharge in that regard. In this context it is appropriate to note that no direction was sought at the trial in relation what possession meant. That was undoubtedly because the nuances of what constitutes possession in law were not involved in the case.

34    A number of circumstances over and above possession of the hand gun were relied upon by the Crown. These included the finding of a newspaper clipping in relation to one of the robberies in the premises occupied by the appellant, the finding in such premises of a pair of Nike Wind Runner shoes, the sole print of which matched an imprint left at one of the crime scenes and the sudden and unexplained wealth of the appellant. This was revealed by some 36 TAB tickets which were found at his residence, the dates of which followed closely upon the dates of the robberies and the amounts of which were unexplained. This was particularly significant in the light of the fact that the sole income of the appellant was a pension of some $320 per fortnight, that he had deposited an amount of $1500 in his account at the St. George Building Society on 20 November 1997 and had receipts showing the purchase at about that time of goods to a value of $1380. The trial Judge told the jury that it was not necessary to find each of these circumstances proved beyond reasonable doubt, but if any of them were found probably to exist “that finding might assist you in your main task, that is of course, to decide on the whole of the evidence you are satisfied beyond reasonable doubt that the accused is guilty”

35    This direction was in essence repeated later in the summing up and followed shortly upon a direction as follows:

“…before you can find an accused person guilty of a crime on the basis of circumstantial evidence you must be satisfied that such a finding is not only reasonably but that it is the only reasonably finding to make
It follows, that if there is another finding which is reasonably open, that is, if there is another reasonable explanation which is consistent with innocence, it is you duty to find the accused not guilty”

36    The directions given were both adequate and correct. The submission to the contrary is rejected.

37    Ground 7

The Notice of Appeal challenges the convictions on counts 2 and 4 (larceny of motor vehicles) on the basis of misdirection or inadequate direction in relation to the larceny). The Crown case was that the appellant was a passenger in each of the cars when he himself knew that they had been stolen.

38    The car used in the Wetherill Park robbery was stolen from Fairfield hospital sometime after 11am on the day of the robbery. It was parked at the time by its owner, who discovered that the car was gone when he returned at 4.15pm to the place where he had parked it. The robbery at Wetherill Park took place at about 3.50pm that day. The car used in the Unanderra robbery was stolen from Westfields at Figtree. It had been left there by the owner at about 1.15pm and was gone when she returned to the place where the car had been parked at 2.15pm. The Unanderra robbery took place around 2.45pm.

39    There was no direct evidence that the appellant stole either vehicle. There was evidence of description of the vehicles involved in the robberies which correlated such vehicles with those which had been stolen. In the case of the car used at for the Wetherill Park robbery a witness recorded the number of the vehicle involved as OHN 391. In fact the number of the stolen vehicle was OHH 391, but the general description of the vehicles matched that of the stolen vehicle. The second vehicle did not have all the registration numbers noted, but the evidence of description combined with that in relation to the numbers which were recorded, gave a good correlation between the stolen vehicle and the vehicle used in the robbery.

40    The trial Judge directed the jury that the robber in both instances got into a car which met him by obvious pre-arrangement, since he appeared to wait for the getaway car to arrive before he undertook the robbery. Having a get- away car is an important element in the planning and execution of a bank robbery and if it was the appellant who was involved in the robberies then it was open to the jury to infer that he well knew the circumstances in which the vehicles had been obtained. No challenge was made to the adequacy of the direction given by the trial Judge and on the hearing of the appeal any question relating to the conviction in relation to the cars was said to be “irrelevant.” Counsel of the appellant said: “I don’t rely upon it, if the court is against me on the other matters, because the sentences in relation to the cars really are of no consequence as they run concurrently”. There is, therefore, no need to consider this ground any further.

41    Ground 8

This was not pressed at the hearing or dealt with in the written submissions filed on behalf of the appellant.

42    Ground 9 - Sentence

The appellant was sentenced to imprisonment for various terms which in aggregate gave an effective minimum sentence of 12 years, with an additional term of 4 years. The sentences were fixed to commence on the day of his arrest, namely 25 November 1997 and, taking into account the additional term, to expire on 24 November 2013.

43    The trial Judge carefully considered the circumstances of each offence, their seriousness and the consequences to the persons involved, particularly the lady who was wounded when the gun was discharged in the course of the Unanderra robbery. Those considerations called for a substantial penalty. The first robbery carried a maximum penalty of 20 years; the second a maximum penalty of 25 years. The first robbery was committed less than one month after the appellant had been released from maximum security on sentences for armed robbery, maliciously discharging a firearm with intent to prevent lawful apprehension and stealing a motor vehicle. During his time in prison he attempted to escape. In addition it appears that, although not taken into account by the trial Judge, the appellant may well have had another conviction for armed robbery or a like offence in 1985.

44    In Veen v The Queen (No. 2) (1987 - 1988) 164CLR 465 it was said:

“Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoners claim for leniency. That is not and never has been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties”(supra at 477 - 478 per Mason CJ, Brennan, Dawson and Toohey JJ)
and:
…”the antecedent criminal history of an offender is a factor which maybe taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the offence a continuing attitude of disobedience of the law. In the later case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind” (supra at 477)

45    Not only were the offences committed by the appellant serious in themselves, but they were obviously planned. In addition the appellant paid no regard for those who were terrorised by his acts or for the lady he shot. The case falls into a class of case in which the elements of retribution, deterrence and protection of a society warrant a severe penalty. The fact that the offences were committed less then a month after the appellant’s release from imprisonment for like offences also calls for a punishment which will operate to deter the appellant and other offenders for committing offences of a like kind. The penalty imposed by the trial Judge was appropriate. It is consistent with the approach taken in R v Malcolm John McDonald (NSW CCA 12 October 1998, unreported per Spigelman CJ).

46    In my opinion the appeal against conviction should be dismissed as should the appeal against the sentence imposed.

47    BARR J: I agree, generally for the reasons given by O’Keefe J that this appeal should be dismissed. I agree with the remarks of the Chief Justice.

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