Rend v R

[2006] NSWCCA 41

Reported Decision: 160 A Crim R 178

New South Wales

Court of Criminal Appeal

CITATION:	Rend v Regina [2006] NSWCCA 41
HEARING DATE(S):	15/02/06
JUDGMENT DATE:	14 March 2006
JUDGMENT OF:	James J at 1; Buddin J at 113; Hall J at 114
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Appellant re-sentenced [par 115].
CATCHWORDS:	CRIMINAL LAW – CONVICTION APPEAL – offence of robbery – whether a miscarriage of justice was occasioned by the Crown prosecutor’s address which relied on lies told by the appellant as evidence of guilt – whether a miscarriage of justice was occasioned by the failure of the trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant – whether the trial judge erred in allowing the Crown to call evidence in reply – SENTENCE – whether sentencing judge erred in taking into account as aggravating factors - prior convictions – offence committed in company - whether disparity with co-offender’s sentence gives rise to a justifiable sense of grievance
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act Evidence Act
CASES CITED:	Browne v Dunn (1893) 6 R 67 Edwards v The Queen (1993) 178 CLR 193 MWJ v The Queen [2005] HCA 74 Postiglione v The Queen (1995-1996) 189 CLR 295 R v Blair (2005) 152 A Crim R 462 R v De Simoni (1981) 147 CLR 383 R v Douglas [2005] NSWCCA 419 R v Johnson [2004] NSWCCA 76 R v Tangye (1997) 92 A Crim R 545 The Queen v Chin (1984-1985) 157 CLR 671 Weiss v The Queen [2005] HCA 81 Zoneff v The Queen (2000) 200 CLR 234
PARTIES:	Susan Betty REND v REGINA
FILE NUMBER(S):	CCA 2005/1894
COUNSEL:	D Dhanji - Appellant Ms J Girdham - Crown
SOLICITORS:	Steve O'Connor - Appellant S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0086
LOWER COURT JUDICIAL OFFICER:	Nield DCJ

2005/1894

JAMES J
BUDDIN J
HALL J

Tuesday 14 March 2006

Susan Betty REND v REGINA

Judgment

1 JAMES J: Susan Betty Rend appealed against her conviction on one charge of robbery. In the event of her appeal against conviction being dismissed, she applies for leave to appeal against the sentence imposed on her.

2 The appellant’s trial took place in January 2005 in the District Court before his Honour Judge Nield and a jury. At the trial the appellant was arraigned on an indictment containing three counts, to all of which she pleaded not guilty, namely a charge of robbery while armed with an offensive weapon (count 1), an alternative charge of robbery (count 2) and a charge of larceny of a motor vehicle (count 3). All of the offences were alleged to have been committed on 1 September 2003. The jury found the appellant not guilty on counts 1 and 3 and guilty on count 2. For the offence of robbery Judge Nield imposed a total sentence of four years, with a non-parole period of two years, commencing on 25 January 2005. In ordering that the sentence should commence on 25 January 2005, his Honour took into account periods of pre-sentence custody. For a related offence of driving while disqualified his Honour imposed a sentence of a fixed term of imprisonment for six months also commencing on 25 January 2005.

3 It was the Crown case at the trial that the offence of robbery (if not armed robbery) had been committed by the appellant with a co-offender, a male named Kurt Wormleaton. Wormleaton had pleaded guilty to charges of armed robbery, stealing a motor vehicle and being in possession of implements capable of being used to enter and drive a motor vehicle. He had been sentenced to terms of imprisonment, which he was serving at the time of the appellant’s trial. At the appellant’s trial Wormleaton gave evidence for the Crown.

4 On 26 May 2004 the appellant had herself pleaded guilty to a charge of armed robbery on 1 September 2003 and a charge of driving and being carried in a stolen motor vehicle on 1 September 2003. In May 2004 the appellant’s legal representatives were Mr Charles Abbott, a solicitor, and Mr Greg Walsh, a barrister. Mr Abbott had a conference with the appellant on 4 May 2004 at which Mr Abbott took notes and, at Mr Abbott’s request, the appellant prepared a handwritten statement dated 17 May 2004 in which she gave an account of events happening on 31 August 2003 and 1 September 2003. Mr Walsh made notes of conferences he had with the appellant in May 2004.

5 The appellant subsequently applied for leave to withdraw her pleas of guilty. An affidavit by Mr Walsh was filed in opposition to this application. An annexure to this affidavit was a copy of the appellant’s handwritten statement of 17 May 2004. Other annexures to the affidavit included notes by Mr Walsh of conferences he had had with the appellant in May 2004. The appellant was granted leave to withdraw her pleas of guilty.

6 At the trial the principal Crown witnesses were the alleged co-offender Wormleaton and the alleged victim of the robbery, Mr Cade Hampstead.

Wormleaton’s Evidence

7 The evidence in chief given by Wormleaton can be briefly summarised as follows.

8 In August 2003 Wormleaton and the appellant were living together in a townhouse at Kingswood. The appellant had two children but Wormleaton was not the father of either child. The first day of September was the birthday of one of the appellant’s children. Neither the appellant nor Wormleaton had any money with which to buy a birthday present for the appellant’s child.

9 On the evening of 31 August 2003 Wormleaton and the appellant left the townhouse together. Wormleaton, at least, had made a decision to rob someone to obtain money. Before leaving the townhouse, Wormleaton took a set of car opening keys and a knife out of a drawer and put them in his pocket.

10 Wormleaton and the appellant went looking for a car to steal. Wormleaton broke into a parked car by using his car opening keys. At the time Wormleaton broke into the car, the appellant was “waiting down the road about 300 metres”. Wormleaton picked up the appellant and Wormleaton drove the stolen car along the Great Western Highway in the direction of Sydney, with the appellant in the front passenger seat.

11 At Parramatta Wormleaton stole registration number plates from another vehicle and substituted them for the number plates on the vehicle which had been stolen. At Wormleaton’s request, the appellant passed to Wormleaton the screwdriver which Wormleaton used to remove the number plates from the second vehicle. Wormleaton disposed of the number plates which had been on the stolen vehicle.

12 Wormleaton drove the stolen car into the city, looking for someone to rob. However, it was “too crowded” in the city, that is there were too many people in the streets for a successful robbery.

13 In the city Wormleaton and the appellant “changed drivers… so it was easier for me to get in and out (of the car) to rob someone”. The car had a manual gear transmission and the appellant had difficulty in driving it.

14 The appellant drove the stolen vehicle into Newtown. Wormleaton spotted a victim, who was a pedestrian walking in the opposite direction to that in which the vehicle was travelling. Wormleaton told the appellant to pull over. Wormleaton got out of the vehicle and approached the victim. Wormleaton drew the knife, asked the victim what money he had and robbed the victim of ten dollars which the victim produced from his wallet.

15 Wormleaton then got back into the stolen vehicle, sitting in the front passenger seat.

16 Wormleaton and the appellant stopped at a shop to buy some cigarettes. They then got back into the vehicle, with Wormleaton taking over the driving. A little later they were stopped by police.

17 In cross-examination Wormleaton agreed that during the day of 31 August 2003 he had seen the appellant consuming tablets but he did not know what tablets she had taken. At different times on the journey during the night of 31 August –1 September he had seen the appellant “on the nod”.

Mr Hampstead’s Evidence

18 Mr Hampstead gave evidence that in the early hours of 1 September 2003 he was walking along King Street, Newtown on his way home. He was the only person in the street. A car travelling in the opposite direction passed him, slowing down as it did so. Mr Hampstead kept walking but then heard someone running up behind him. It was a man armed with a knife. Mr Hampstead recognised the man as being the person in the front passenger seat of the car which had passed him. The man asked Mr Hampstead what money he had and Mr Hampstead produced ten dollars. The man took the ten dollars and ran back to the car, which had stopped about fifty metres away. The man got into the front passenger seat of the car. The driver of the car was a female.

19 Very shortly after being robbed Mr Hampstead made an emergency telephone call to police. A tape recording and a transcript of the emergency telephone call were admitted into evidence. In the telephone call Mr Hampstead said that he had just been robbed at knifepoint and was watching the car drive away. When asked how many offenders there were, he said “one driver and one assaulter. Female driver, male assaulter”. He confirmed “one female driver and a male passenger”. Later in the conversation Mr Hampstead said that the car was just driving past him. Mr Hampstead supplied the registration number on the number plates on the vehicle and it was the supplying of this information that led to the vehicle being stopped by police.

Other Crown Evidence

20 A police officer Constable Park read, without objection, a statement he had made. In his statement he said that in the early morning of 1 September 2003 he had been in a police vehicle, performing highway patrol duties. The police vehicle had chased the vehicle in which Wormleaton and the appellant were, in a chase beginning in Newtown, and Wormleaton and the appellant had been arrested. Constable Park was briefly cross-examined by counsel for the appellant at the trial. Constable Park was not asked either in examination in chief or in cross-examination any question about any observation he might have made of the state of intoxication or sobriety of the appellant at the time she was arrested.

21 Statements by other police officers were admitted, without objection. None of these officers said anything about any observations which the officer might have made of the condition of the appellant at the time she was arrested.

22 The statement of 17 May 2004 which the appellant had made to her then solicitor Mr Abbott was tendered by the Crown and admitted into evidence as part of the Crown case (exhibit “S”).

23 On the hearing of this appeal it was not disputed that the trial judge had been correct in ruling that client legal privilege had been waived by the appellant by the disclosure and use of the statement in the application for leave to withdraw the pleas of guilty. The trial judge rejected a submission made by counsel for the appellant at the trial that the trial judge should refuse to admit evidence of the statement in the exercise of the discretion conferred by s 90 of the Evidence Act. However, the trial judge did exercise the discretion conferred by s 90 in favour of the appellant, so as to reject a tender by the Crown of the notes Mr Abbott had made of his conference with the appellant on 4 May 2004.

24 In the statement of 17 May 2004 the appellant gave a detailed account of what she said had happened on the night of 31 August-1 September 2003. She said that Wormleaton “suggested he would see his friend from the area of Kingswood to get permission to lend his car”. She said that Wormleaton had turned up at the townhouse in a car and had said that the two of them should go to the city to visit a cousin of Wormleaton’s, who lived near Central. While Wormleaton and the appellant were in the car there were arguments between them, because they were unable to find where the cousin lived. The appellant’s statement continued:-

“Anyways he kept driving around like we were going in circles and another argument started but bigger and then he stopped the car ordered me to get out and drive, so I drove and then by that stage we were very lost. Now neither of us knew where we were, so then we both took some pills and then kept driving and things became a bit hazy, so I kept driving looking round at the night life around and seemed like we were getting even more lost, then all of a sudden Kurt ordered me to pull over, it was a fairly busy street, even at a late hour he said he seen a telephone box and said wait here, I’ll go and ring my cousin and see if he was still up and to get directions to his house and to see if he still want to go out, while he went to call I waited in the car, Kurt came back jumped into the passenger seat and ordered me to drive so I did, and I noticed he was happy and excited, as I drove on he said to me he had just rolled someone I had been furious with him, so I pulled into a 7 Eleven and was so disgusted in what he told me he’d done in no uncertain terms but I also was disgusted with the situation he’d put me in as a mother and as his friend, and that his stupid criminal act could get me into trouble as well.”

The Appellant’s Evidence at the Trial

25 The appellant gave evidence and her evidence was the only evidence in the defence case.

26 In her evidence the appellant said that in August 2003 she had been living in a relationship with Wormleaton. On 31 August 2003 she had taken Valium and “I was on methadone and alcohol”. She was “stoned”.

27 In the afternoon of 31 August Wormleaton went out without her and later returned with a car.

28 Wormleaton suggested that they should go out together in the car and visit a cousin of his in the city. Wormleaton drove the car and the appellant did not drive the car at all that night. She did not see Wormleaton take a knife from the house but later she saw a knife in the console of the vehicle. The appellant did not remember the car stopping at Parramatta. While she was in the car “I was smashed, like on the nod sort of thing, nodding off and waking up”.

29 Wormleaton, who was driving the car, said that he would telephone his cousin and Wormleaton stopped the car and got out. A little later Wormleaton returned to the vehicle and got back into the driver’s seat. Wormleaton stopped the car at a shop to buy cigarettes. Subsequently, the car was stopped by police. The appellant thought that the car had been stopped because Wormleaton, who had been disqualified from driving, should not have been driving. The appellant said that she first learnt about the robbery when she was told by the police that a robbery had been committed.

30 The appellant was then asked questions by her counsel about the statement of 17 May 2004 which she had made to Mr Abbott. The following questions and answers occurred:-

“Q. And are the majority of the things in it the truth, apart from the areas where you say that you drove the car because Kurt told you to drive”
A. Yeah.”
……..
“Q. Why did you say that you drove the car when you’d originally told your solicitor that you didn’t drive the car?
A. Because um when, I remember being in a conference with him and he’s just more or less told me to tell him what happened”.
…..
“Q. So you’re telling the jury is that you decided to change that part of your story because you thought it would be more believable, is that right?
A. Yeah.
Q. Did you drive that car that night?
A. No”.

31 In her evidence in cross-examination the appellant said that, while she was in the vehicle on the night of 31 August-1 September, she had been “stoned” and “on the nod”, meaning that most of the time she had been nodding off to sleep and, in that condition, it would have been impossible for her to drive.

32 The appellant was cross-examined about her statement of 17 May 2004 and inconsistencies between that statement and evidence she had given in her evidence in chief.

33 The appellant said in cross-examination that she had not known that Wormleaton was going to get a car, until he came back to the townhouse with a car. What she had said in her statement of 17 May 2004 about Wormleaton saying that he would see a local friend to obtain permission to borrow a car was untrue and she had put that assertion in her statement because Mr Abbott her solicitor had told her to. She had told Mr Abbott what had really happened and “he didn’t believe me”.

34 In cross-examination it was put to the appellant by the Crown prosecutor that she was saying that her statement in her letter was a lie and she agreed. It was put to her that her evidence, that Mr Abbott had told her to say what she had said in her statement, was a lie but she denied that it was a lie.

35 The appellant said in cross-examination that what she had said in her statement of 17 May 2004 about Wormleaton telling her that he had “rolled” someone was untrue and that Mr Abbott had told her to write that. It was put to her by the Crown prosecutor, but the appellant denied, that it was a lie that Mr Abbott had told her to write that in her statement.

36 In cross-examination the appellant denied that she had ever driven the vehicle on the night of 31 August-1 September and she had said in her statement of 17 May 2004 that she had at times driven the vehicle “because my old solicitor told me to”. Mr Abbott had said to the appellant “that would be more believable”.

37 Subsequently in cross-examination the appellant agreed that in her statement of 17 May 2004 she had given a version of events which was full of lies and she had given that version because Mr Abbott had told her to.

Crown Case in Reply

38 At the trial the Crown prosecutor indicated that he wished to call Mr Abbott in a Crown case in reply. The trial judge acceded to an application by counsel for the appellant at the trial that, as no statement had been obtained from Mr Abbott, Mr Abbott should first give evidence in the absence of the jury.

39 Mr Abbott gave evidence, in the absence of the jury, that he had asked the appellant for written instructions and had received from her the statement of 17 May 2004. Mr Abbott denied that on any matter he had told the appellant what to say in her statement.

40 After Mr Abbott had given evidence in the absence of the jury, the Crown’s application to call Mr Abbott in a case in reply was argued. As it has not been suggested on this appeal that the trial judge made any error in permitting the Crown to call Mr Abbott in a case in reply, it is unnecessary to review the submissions made by counsel for the appellant at the trial, on the application by the Crown to call Mr Abbott. I will, however, observe that it would appear to me that his Honour’s decision was clearly correct. The Crown could not have reasonably anticipated, before the close of the Crown case and the appellant giving evidence in her own case, that the appellant would allege that assertions in her statement of 17 May 2004 had been made because Mr Abbott had told her to make the assertions.

41 During the argument on the Crown’s application to call Mr Abbott in a case in reply, the trial judge observed:-

“HIS HONOUR: …indeed as I’ve just pointed out, if the Crown wants to call the police to indicate their impression of the accused at the time of her arrest, I can’t see a reason to refuse that either, bearing in mind that none of the police were asked about the apparent state of affectation of the accused at the time of the arrest and now she says she was, to use her words, ‘stoned, smashed and on the nod’”.

42 It was submitted by counsel for the appellant at the trial that the prosecution ought reasonably to have foreseen, from the history of the matter and the part of the cross-examination of Mr Wormleaton I have referred to, that is the evidence of Wormleaton in cross-examination that the appellant had taken tablets and at times during the journey was “on the nod”, that the appellant might say that she was seriously intoxicated from drugs on the night of 31 August-1 September. The trial judge replied that Mr Wormleaton had not said, as the appellant herself had said in her evidence, that she was “smashed” or “stoned”. It was also submitted by counsel for the appellant at the trial that any evidence from the police would “not take the matter very far”.

43 The trial judge decided that he would permit the Crown to call a police officer in its case in reply.

44 In the case in reply Mr Abbott gave evidence similar to the evidence he had given in the absence of the jury, that he had asked the appellant to give him detailed written instructions but had not told her what to say on any matter.

45 Constable Pemberton, who had been in the same police vehicle as Constable Park, gave evidence about the police chase. After the chase had ended and the appellant had been taken out of the car in which she and Wormleaton had been travelling, Constable Pemberton supervised the appellant for approximately fifteen minutes, until other police vehicles arrived. Constable Pemberton said that he was familiar with the terms “smashed” and “stoned” and he had not formed a view that the appellant, while he was supervising her, was “smashed” or “stoned”. The appellant had initially sat in a gutter and had then asked whether she could sit on a nearby log fence. Her speech had been coherent and she had sat upright.

The Grounds of Appeal

46 The appellant relied on the following grounds of appeal against conviction:-

“1. A miscarriage of justice was occasioned by the Crown prosecutor’s address which relied on lies told by the appellant as evidence of the appellant’s guilt.
2. A miscarriage of justice was occasioned by the failure of the learned trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant.
3. The learned trial judge erred in allowing the Crown to call the evidence of Constable Pemberton in reply.
4. The learned sentencing judge erred when sentencing the appellant by taking into account the appellant’s prior convictions as an aggravating factor.
5. The learned sentencing judge erred when sentencing the appellant by taking into account as an aggravating factor that the offence was committed in company.
6. The learned sentencing judge erred when sentencing the appellant by taking into account as an aggravating factor that the victim was vulnerable.
7. The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon her and that imposed upon the co-offender, Wormleaton.
8. The sentence is, in all the circumstances, manifestly excessive”.

47 It is apparent that the first three grounds of appeal are grounds of appeal against conviction and the remaining grounds are grounds of appeal against sentence.

48 The first two grounds of appeal are related and were dealt with together in counsel’s written and oral submissions and it is convenient to deal with them together.

Grounds of Appeal against Conviction 1 and 2

49 It was submitted by counsel for the appellant that the telling of lies by the appellant had played a prominent part in the appellant’s trial.

50 It was submitted that the Crown had been in the unusual position of having in its possession previous out of court versions by the appellant of what had happened on the night of 31 August-1 September 2003 which the appellant had given to the solicitor or barrister then acting for her and at the trial the appellant had been cross-examined by the Crown prosecutor on inconsistencies between these versions and the evidence she had given in her evidence in chief. It had been put to the appellant by the Crown prosecutor at the trial that some things the appellant had said in her evidence in chief were lies and that her explanation of why she had made certain assertions in her statement of 17 May 2004, which were inconsistent with her evidence and which she now said were untrue, namely that she had been told to make the assertions by Mr Abbott, was itself a lie.

51 It was then submitted by counsel for the appellant that the Crown prosecutor in his closing address to the jury had sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt.

52 It was contended that any lies the appellant had told did not satisfy all of the conditions for a lie being capable of amounting to evidence of consciousness of guilt and the Crown prosecutor should not have sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt. Furthermore, the trial judge in his summing-up had not given the jury directions of the kind required when lies are relied on by the Crown as being evidence of consciousness of guilt Edwards v The Queen (1993) 178 CLR 193.

53 Alternatively, the trial judge had not given the jury a direction of the kind suggested in the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen (2000) 200 CLR 234 at 245, to the effect that where lies are not relied on as evidence of consciousness of guilt, the jury should be directed that they should not reason that, just because the accused has been shown to have told a lie, that is evidence of his or her guilt.

54 It is clear that the trial judge in his summing-up did not give the jury any directions in accordance with Edwards or any directions in accordance with Zoneff. However, a critical question is whether, as was submitted by counsel for the appellant, the Crown prosecutor in his closing address to the jury did seek to rely on the telling of lies by the appellant as evidence of consciousness of guilt.

55 Counsel for the appellant pointed to five passages in the Crown prosecutor’s closing address, which were as follows:-

“(1) I want to come briefly to the accused’s evidence. One thing that you can’t do in this trial is say look at Wormleaton, look at Hampstead on one side, put them on that side and then put the accused on this side and say which do I prefer, you cannot do it. It’s the Crown case that must be proved beyond reasonable doubt and I as the Crown must prove it and I do that, I attempt to do that with my witnesses but having said that what you can do is this. You can look at Ms Rend because she went into the witness box and she faced cross-examination for an hour or so. You can look at her evidence and you assess it, she is a witness like every other witness when she goes into that witness box. You assess her evidence as you assess all the other witnesses, Hampstead, Wormleaton, … all of them. So look at her evidence and you form a view as to whether she was a witness of truth but even then, even if you don’t think she’s a witness of truth that still isn’t the end of it for you, you still can’t say well I’m satisfied beyond reasonable doubt, you still have to look back at the Crown evidence, always remember that, his Honour will tell you that and I think Mr Gilson will tell you that. But when you look at the Crown evidence you can take into account in your deliberations what the accused has said to you. You’ve heard this morning, you’ve heard the evidence this morning, you’ll remember the inconsistencies.”
…….
“(2) Well gee isn’t that consistent with what’s in this document, the document that’s before you, exhibit S, isn’t that consistent with that but no Ms Rend wants to stay away from it, no, no that never happened, I only found out about this at the end because it’s important. It’s important for her defence that she only knew about it at the end, not at any time before. So she distanced herself from it”.
…..
“(3) Well you saw and heard Ms Rend this morning and you saw her give her answers. Was she trying to tell the truth, was she a witness of truth, something you’ve got to take into account when you’re looking at the Crown case”.
……
“(4) What does she say about that? ‘Mr Abbott told me to say it’, Mr Abbott, criminal solicitor of twenty years told her to tell lies, matter for yourself. Because you see you can understand, can’t you why Ms Rend would want to distance herself from the driving”.
…..
“(5) But she drove, if you accept Hampstead. So if you accept that, she knew what was going on because she could drive, she was capable of driving, she was capable of agreeing to commit the crime of robbery. Why is she distancing herself from this driving, for that very reason because if she’s found to be the driver you might take the view that she’s part of the agreement”.

56 In my opinion, the first and third passages lend no support to counsel for the appellant’s submissions.

57 In the first passage the Crown prosecutor told the jury that the Crown bore the onus of proof, that the jury would have to assess the appellant’s evidence, that even if they did not think that the appellant was a truthful witness the jury would have to determine whether they accepted the Crown evidence but in determining whether they accepted the Crown evidence the jury could take into account inconsistencies in the appellant’s accounts of what had happened.

58 In the third passage the Crown prosecutor merely reminded the jury that, when determining whether the evidence adduced in the Crown case established the Crown case, they should consider whether the appellant in her evidence was a truthful witness.

59 In my opinion, the critical question to be determined is whether, in the second, fourth and fifth passages which I have quoted, the Crown prosecutor by submitting that the appellant in her evidence had “distanced herself” from knowing about the robbery at or about the time that it happened and had “distanced herself” from being the driver of the vehicle, because if she had been the driver of the vehicle that might show that she was a party to an agreement to rob Mr Hampstead, had sought to rely on the telling of lies by the appellant as evidence of consciousness of guilt.

60 In determining this question I have taken into account the whole of the Crown prosecutor’s address. The conclusion I have reached is that, when the Crown prosecutor’s address is considered as a whole, the Crown prosecutor should not be regarded as having intended and would not have been understood by the jury as intending, to rely on the telling of lies by the appellant as evidence of consciousness of guilt.

61 A continually recurring theme in the Crown prosecutor’s address was that the jury should find that the appellant had no credibility and her evidence should be rejected. It seems to me that in submitting to the jury that the appellant had “distanced herself” from knowing about the robbery at or about the time it happened and from having been the driver of the vehicle, the Crown prosecutor was doing no more than submitting that her evidence on these matters should not be accepted and suggesting a reason for her having told an untruth, as increasing the likelihood that her evidence was indeed untrue.

62 The expression “distancing herself” was, perhaps, an expression which the Crown prosecutor would better have avoided. It was, however, an expression the Crown prosecutor used freely in the summing-up and not merely in relation to the appellant. For example, the Crown prosecutor said of some evidence given by Wormleaton which the Crown prosecutor submitted the jury should not accept, that Wormleaton in giving the evidence had “distanced himself” from the truth.

63 My view that the Crown prosecutor should not be regarded as having sought to rely on lies as consciousness of guilt is strengthened by the circumstance that it apparently did not occur to either counsel for the appellant at the trial or the trial judge that the Crown prosecutor was seeking to rely on lies as consciousness of guilt.

64 The appellant was competently represented by her trial counsel. The appellant’s trial counsel made some, unrelated, applications to the trial judge for further directions after the trial judge had concluded the principal part of his summing-up but did not raise any objection to the Crown prosecutor’s address or make any application for a direction on lies. This Court received an affidavit from trial counsel in which counsel said that he had little recollection of the matter but had not made any conscious forensic decision not to apply for directions about lies.

65 In his summing-up the trial judge said nothing which could have suggested to the jury that it was part of the Crown case that the appellant had told lies in consciousness of guilt. In his summing-up the trial judge told the jury that the Crown relied on the appellant’s statement of 17 May 2004 only to a limited extent, that is only as containing an admission that she was the driver of the vehicle, which would confirm Mr Wormleaton’s evidence and Mr Hampstead’s evidence on that subject.

66 As the Crown prosecutor did not seek to rely on lies as evidence of consciousness of guilt, the trial judge was not required to give and, indeed, should not have given, directions in accordance with Edwards.

67 The trial judge did not give any Zoneff direction. However, none was asked for and it would appear that no one at the trial thought that a Zoneff direction was needed.

68 It is apparent from the joint judgment in the High Court in Zoneff that it is not mandatory to give a Zoneff direction in every case where it has been suggested that the accused has told lies. The joint judgment speaks of a direction “which might appropriately have been given”. It is a “direction which may well be adaptable” in cases where there is a risk of misunderstanding about the significance of possible lies.

69 In R v Douglas [2005] NSWCCA 419 this Court referred with approval to what was said by Hunt CJ at CL, with the concurrence of the other members of the Court, in R v Tangye (1997) 92 A Crim R 545:-

”In my view, even in cases where the lie is relied upon by the Crown only in relation to the credit of the accused, it is best for the judge to direct the jury that they should not find him guilty simply because he has told a lie, but it is not an error where that has not been done, and it is even less meritorious as an appeal point when the trial judge (as here) has not been requested to do so”.

70 I would reject the first and second grounds of appeal.

Ground of Appeal against Conviction 3

71 As I have stated earlier in this judgment, the Crown was permitted by the trial judge to call evidence in reply, including evidence from Constable Pemberton and it was the trial judge himself who suggested that the Crown might call evidence in reply from a police officer about whether the appellant at the time of her arrest appeared to be affected by drugs.

72 The principles that govern the exercise of the discretion of a trial judge to permit the Crown to call evidence in reply are well established. In The Queen v Chin (1984-1985) 157 CLR 671 Gibbs CJ and Wilson J said at 676:-

“The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen (1952) 85 CLR 365 at pp. 378-380, 383-384; Killick v The Queen (1981) 147 CLR 565 at pp. 568-571, 575-576 and Lawrence v The Queen (1981) 38 ALR 1 The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: … and if, the need to give it could have been foreseen it will, generally speaking, be rejected”

73 It was submitted on behalf of the appellant that the circumstances in the present trial were not “very special or exceptional” and that the occasion for calling Constable Pemberton’s evidence could reasonably have been foreseen. Counsel referred to the evidence given by Wormleaton in cross-examination in the Crown case, that the appellant had been taking tablets on 31 August and that during the journey in the vehicle she was at various times “on the nod”. Counsel referred particularly to annexures to the affidavit by Mr Walsh, which the Crown had had in its possession since the appellant’s application for leave to withdraw her pleas of guilty. Annexure B to the affidavit consisted of the notes made by Mr Walsh of a conference with the appellant on 24 May 2004, in which Mr Walsh had recorded that the appellant had told him that “I nodded off at times. Valium during the day, bong and 80ml methadone”.

74 Annexure C to the affidavit was a letter from Mr Walsh to his instructing solicitors in which Mr Walsh recorded that the appellant “continues to maintain that she was heavily affected by drugs during the whole of the day and evening”.

75 Annexure H to the affidavit was a report from Dr Carne, consultant forensic psychiatrist, in which Dr Carne recorded that “Ms Rend told me that she was a passenger in the car. She told me that at the time of offence she was affected by methadone, diazepam and marijuana”.

76 It was submitted on behalf of the Crown that, although the Crown might have had notice that on 31 August 2003 the appellant had been taking drugs and the appellant might have been to some extent under the influence of drugs while in the vehicle, it could not reasonably have been foreseen that the appellant would claim that she was so far under the influence of drugs (“stoned” or “smashed”) as to have been asleep for most of the time in the vehicle and as to have been incapable of driving the vehicle. In the statement of 17 May which the appellant had given to Mr Abbott, which was also an annexure to Mr Walsh’s affidavit, the appellant had given a detailed account of events on the night of 31 August, which, the Crown submitted, would be inconsistent with her having been highly intoxicated or asleep, and had explicitly said that, although she took some pills in the vehicle and “things became a bit hazy”, she had kept driving.

77 It was also pointed out by the Crown that, when Constable Park had given evidence in the Crown case in chief, he had not been cross-examined about any observation he had made of the appellant’s state of sobriety or intoxication.

78 I have concluded that, consistently with the principles I have referred to, I should hold that the Crown should not have been permitted to call Constable Pemberton in a case in reply. It seems to me that it could reasonably have been foreseen by the Crown, before the close of the Crown case, that evidence about the appellant’s state of intoxication or sobriety might be relevant to such issues as whether the appellant had been asleep in the car, whether she had been driving the car and whether she had been a party to a joint enterprise with Wormleaton to rob Mr Hampstead.

79 With regard to a reason given by the trial judge and by the Crown on this appeal, for allowing the Crown to call a police officer in a case in reply, that Constable Park had not been asked in cross-examination about the appellant’s condition, the very existence of the rule in Browne v Dunn (1893) 6 R 67, as applying to an accused in a criminal trial, has recently being seriously doubted by a majority of the High Court. MWJ v The Queen [2005] HCA 74 at (41) per Gummow, Kirby and Callinan JJ.

80 I would uphold the third ground of appeal against conviction.

81 It does not, however, follow that the appeal against conviction should be allowed. I would apply the proviso to s 6 of the Criminal Appeal Act in favour of the Crown. Having made my own independent assessment of the evidence, I am satisfied that the evidence properly admitted at the trial proved beyond reasonable doubt the appellant’s guilt of the offence on which the jury returned its verdict of guilty and that, apart from the admission of Constable Pemberton’s evidence in a case in reply, there was no breach of the fundamental conditions of a criminal trial. I consider that no substantial miscarriage of justice actually occurred. Weiss v The Queen [2005] HCA 81 especially at pars 43-47.

82 The Crown case against the appellant, without the evidence of Constable Pemberton, that the appellant had been a party to an agreement with Wormleaton to rob Mr Hampstead, was overwhelming. The Crown case included the evidence of Wormleaton and Mr Hampstead. There was no suggestion at the trial that Mr Hampstead’s evidence was dishonest and Mr Hampstead’s evidence was strongly corroborated by his recorded emergency telephone call, made almost immediately after the robbery, in which he said that it was the female occupant of the car who had been driving the car.

83 The Crown case that the appellant had been driving the car was supported by the appellant’s repeated assertions in her statement of 17 May 2004 that she had been driving the car. This statement was a statement she had made in writing to the solicitor then acting for her. I would reject, as I am sure the jury rejected, the appellant’s explanation that she had been told by Mr Abbott what to say in her statement.

84 If the appellant was driving the vehicle immediately before and immediately after the robbery, then it was overwhelmingly likely that she had been a knowing participant in the robbery.

85 In the light of the inconsistencies in the appellant’s own versions of what had happened on 31 August-1 September, the appellant’s credibility as a witness was minimal.

86 I have held that Constable Pemberton’s evidence should not have been admitted. However his evidence was brief and, in my opinion, did not have the importance at the trial that counsel for the appellant on this appeal sought to attach to it.

87 I would dismiss the appeal against conviction.

Grounds of Appeal against Sentence

88 The grounds of appeal against sentence can conveniently be dealt with together.

89 I have already reviewed the evidence in the trial about the offence committed by the appellant. In his remarks on sentence Judge Nield said:-

“It is obvious, from its verdicts, that the jury accepted Mr Hampstead as a witness of truth and accepted his evidence, rejected the evidence of Wormleaton unless his evidence was supported by other evidence and rejected the evidence of the offender where it was in conflict with that of Mr Hampstead. Specifically, it is obvious that the jury accepted Wormleaton’s evidence that the offender knew that he intended to rob Mr Hampstead and accepted Mr Hampstead’s evidence that the driver of the vehicle when it went past him was female; that the driver of the motor vehicle slowed the speed of the vehicle as it approached and went past him; that Wormleaton, after he had robbed him, returned to the vehicle and entered it through the passenger’s side door of it; and that, thereupon, the driver of the vehicle drove it away”.

90 In his remarks on sentence his Honour made some findings about the subjective features of the appellant. She was born on 29 April 1980 and was, accordingly, twenty-four years old at the time of her being sentenced.

91 The appellant’s parents had separated when she was five or six years old. Both her father and the man who became her stepfather were violent men.

92 The appellant had been introduced to drugs when she was only eight or nine years old and she had been subjected to sexual abuse by a relative from the age of seven or eight to the age of twelve.

93 The appellant left school at the age of fourteen years, when pregnant with her first child, who was born in 1995. A second child was born in 1998. To support herself and her children she had resorted to prostitution.

94 The appellant had formed a relationship with Wormleaton, who during the relationship had used drugs and had physically abused her.

95 The appellant had a criminal history, consisting mainly of drug offences and driving offences. In 2001 she had been sentenced to imprisonment for two years, with a non-parole period of eight months, for an offence of supplying a prohibited drug. She had two convictions for larceny, for one of which she had been imprisoned for six months.

96 In his remarks on sentence Judge Nield referred to the sentences passed on Wormleaton. Wormleaton received a total discount of 50 per cent for his pleas of guilty and for the assistance he had provided and had undertaken to provide in the prosecution of the appellant. The sentences imposed on Wormleaton were a total sentence of two years six months with a non-parole period of one year six months for the offence of armed robbery and, for the other two offences, fixed terms of imprisonment of one year to be served concurrently with part of the non-parole period of the sentence for armed robbery.

97 Judge Nield said in his remarks on sentence that because Wormleaton was sentenced for the more serious offence of armed robbery and because he had received a discount for his pleas of guilty and his assistance, “the principle of parity of sentencing does not apply”.

98 In his remarks on sentence Judge Nield referred to s 21A(2) of the Crimes (Sentencing Procedure) Act and held that the aggravating factors in par (d) (the offender has a record of previous convictions), par (e) (the offence was committed in company) and par (l) (the victim was vulnerable) were present.

99 I will now turn to the grounds of appeal against sentence.

Ground of Appeal 4

100 Counsel for the appellant referred to what has been said by this Court in such cases as R v Johnson [2004] NSWCCA 76 and R v Blair (2005) 152 A Crim R 462, to the effect that under subs (5) of s 21A a court is not to have regard to an aggravating factor in sentencing, if it would be contrary to any rule of law to do so and it is a common law principle that prior convictions do not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is more appropriate to give more weight to some of the purposes of sentencing.

101 In any event, however any permissible use of an offender’s previous criminal history so as to increase a sentence should be characterised, I would not consider that the appellant’s two previous offences of larceny constituted a criminal record such that the sentencing judge was entitled, on that account, to increase the sentence he would impose on the appellant.

102 I would uphold this ground of appeal.

Ground of Appeal 5

103 The sentencing judge was not entitled to take into account as an aggravating factor that the offence had been committed in company. The appellant had been convicted of an offence under s 94 of the Crimes Act of robbery simpliciter and had not been convicted of the aggravated offence of robbery in company under s 97 of the Crimes Act, which carries a higher maximum penalty. To take into account as an aggravating factor that the offence had been committed in company involved a clear breach of R v De Simoni (1981) 147 CLR 383 and also of s 21A(4) of the Crimes (Sentencing Procedure) Act.

104 I would uphold this ground of appeal.

105 I will next consider Ground 7.

Ground of Appeal 7

106 As I have already indicated, his Honour considered that because Wormleaton had been convicted of a more serious offence and had received a discount for his pleas of guilty and assistance, the principle of parity in sentencing did not apply. However, notwithstanding these differences between the appellant and the co-offender Wormleaton, I consider that it was still necessary for the sentencing judge to impose a sentence on the appellant such that there would be a due proportion between the sentence passed on the appellant and the sentence or sentences passed on Wormleaton Postiglione v The Queen (1995-1996) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ. The principle of due proportionality in sentencing co-offenders was applied in Postiglione, notwithstanding a number of differences between Postiglione and the co-offender Savvas.

107 The judge who sentenced Wormleaton quantified a combined discount for Wormleaton’s pleas of guilty and assistance as 50 per cent, so that the sentence which would have been imposed on Wormleaton for the offence of armed robbery, absent the plea of guilty and the assistance, would have been five years.

108 I accept the submission by counsel for the appellant that the sentence imposed on the appellant of four years was unduly severe, when compared with a sentence of five years, which would have been imposed on Wormleaton but for his pleas of guilty and assistance. Wormleaton was sentenced for a more serious offence of armed robbery, whereas the appellant was sentenced for the less serious offence of robbery simpliciter. It is clear that Wormleaton took the leading role in the planning of the offence for which the appellant was sentenced, the preparation for the offence and the actual carrying out of the offence. At the time of committing the offence of armed robbery, Wormleaton was on bail and subject to a bond. The sentence imposed on Wormleaton was partly concurrent with the sentences imposed for the other offences committed by Wormleaton.

109 As, in my opinion, the challenge to the appellant’s sentence based on Postiglione v The Queen has been made good, it is unnecessary to consider the remaining grounds of appeal against sentence. I would grant leave to the appellant to appeal against sentence and I would allow the appeal against sentence. It is accordingly necessary for this Court to re-sentence the appellant.

110 I have already referred to the objective facts of the offence and to the subjective features of the appellant and to the sentences passed on the co-offender Wormleaton. I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. I would find special circumstances in the circumstances found by the sentencing judge, namely her need for appropriate treatment and counselling to prevent another relapse into the use of prohibited drugs, and I would maintain the same ratio between the non-parole period and the total sentence.

111 In my opinion, the appellant should be sentenced to a non-parole period of one year six months with a balance of the term of the sentence of one year six months, making a total sentence of three years.

112 The orders I consider should be made are:-

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence allowed.

4. Sentence imposed on 7 April 2005 for the offence of robbery quashed. In lieu thereof the appellant should be sentenced to a non-parole period of one year six months with a balance of term of one year six months making a total sentence of three years to date from 25 January 2005.

5. Direct that the appellant be released on parole at the end of the non-parole period on 24 July 2006.

6. Confirm the sentence on the related charge of driving while disqualified and the order for disqualification.

113 BUDDIN J: I agree with James J.

114 HALL J: I agree with James J.

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