Singh v Director of Public Prosecutions (NSW)

[2006] NSWCCA 333

Reported Decision: 164 A Crim R 284

New South Wales

Court of Criminal Appeal

CITATION:	Vikramdeep SINGH v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2006] NSWCCA 333 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 August 2006
JUDGMENT DATE:	18 October 2006
JUDGMENT OF:	Basten JA at 1; Whealy J at 76; Latham J at 77
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS:	UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight - SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period
LEGISLATION CITED:	Crimes Act 1900 (NSW), ss 33, 35, 98 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54D Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules, r 4 Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165 Sentencing Act 1989 (NSW), s 5
CASES CITED:	Conway v The Queen (2002) 209 CLR 203 Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57 Kanaan v R [2006] NSWCCA 109 Longman v The Queen (1989) 168 CLR 79 Melbourne v The Queen (1999) 198 CLR 1 Papakosmas v The Queen (1999) 196 CLR 297 R v Hampton (1998) 44 NSWLR 729 R v ITA (2003) 139 A Crim R 340 R v Moffitt (1990) 20 NSWLR 114 R v Stewart (2001) 52 NSWLR 301 Stanoevski v The Queen (2001) 202 CLR 115 Zoneff v The Queen (2000) 200 CLR 234
PARTIES:	Vikramdeep SINGH - Appellant Director of Public Prosecutions (NSW) - Respondent
FILE NUMBER(S):	CCA 2006/1159
COUNSEL:	T.A. Game SC - Appellant P. Miller - Respondent
SOLICITORS:	Jeffreys & Associates - Appellant S. Kavanagh (Solicitor for Public Prosecutions) - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 04/11/0661
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	1 October 2004

CCA 2006/1159
DC 04/11/0661

BASTEN JA
WHEALY J
LATHAM J

18 October 2006

Vikramdeep SINGH v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Mr Singh appealed against his convictions and sentence in the District Court for a number of offences which arose out of a fight involving himself, his co-accused, an unidentified third male and the two victims. The Appellant was convicted of maliciously inflicting grievous bodily harm whilst in company and stealing in relation to one victim, assault with intent to rob in relation to the other victim, and maliciously damaging property. The Appellant and the co-accused were tried together. For the four charges, the Appellant was sentenced to 9 years and 4 months imprisonment, with a non-parole period of 7 years and 6 months. The co-accused was only convicted of one charge of malicious infliction of grievous bodily harm whilst in company.

The issues in the appeal were:

(i) whether the conduct of the case run at trial by the co-accused’s counsel was inflammatory as against the Appellant, to the extent of it being improper or unfair to the Appellant by portraying the co-accused as the “peacemaker” and the Appellant as the “villain”;

(ii) whether the trial judge erred in refusing to allow the Appellant’s counsel to cross examine the co-accused as to certain matters of credit, and if so whether a miscarriage of justice resulted;

(iii) whether the trial judge erred in not giving a warning to the jury as to the risks of relying on the co-accused’s evidence against the Appellant, and if so whether a miscarriage of justice resulted;

(iv) whether the trial judge erred in failing to give specific directions with respect to evidence of flight, evincing a consciousness of guilt, and if so whether a miscarriage of justice resulted;

(v) whether the trial judge erred in finding that there were no “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which warranted the balance of the period of the sentence exceeding one-third of the non-parole period.

Held per Basten JA (Whealy & Latham JJ agreeing):

In relation to (i)

1. Evaluating the evidence as a whole, whilst the co-accused may have portrayed himself as the “peacemaker” in the fight, his evidence did not portray the Appellant as the “villain”: at [10]–[18].

2. Read in context, the cross-examination of the Appellant by the co-accused’s counsel was proper and did not result in a miscarriage of justice at [19]–[26].

3. Counsel for the co-accused was entitled to address favourably to his client in strong terms. A reading of the address as a whole does not convey an impression that it was inflammatory as against the Appellant, to the extent of it being improper or unfair to the Appellant: at [36].

Held in relation to (ii)

1. Cross examination of the co-accused relating to his status as an unlawful non-citizen in Australia went entirely to the truthfulness of the co-accused and hence, in a case involving violence and not dishonesty, should be treated as going only to the question of credibility: at [31].

Melbourne v The Queen (1999) 198 CLR 1; Stanoevski v The Queen (2001) 202 CLR 115, applied.

2. Such evidence was properly held to be inadmissible under s 103 and s 135 of the Evidence Act 1995 (NSW) because the evidence did not have substantial probative value and any probative value it might have would be overwhelmed by its prejudicial effect: at [33].

Held in relation to (iii)

1. The evidence of a co-accused constitutes unreliable evidence under with s 165 of the Evidence Act. It was common ground that the obligation in s165(2) was never engaged because no one requested the trial judge to give a direction to the jury in accordance with its terms. It follows that there has been no contravention of the statutory obligation: at [38].

2. The Appellant is obliged to seek leave under r 4 of the Criminal Appeal Rules to challenge a failure to give a direction, not sought at trial. That leave should not be refused if the circumstances of the case indicate a miscarriage of justice: at [39].

R v ITA (2003) 139 A Crim R 340; Papakosmas v The Queen (1999) 196 CLR 297; Kanaan v R [2006] NSWCCA 109, applied,

3. To the extent that s 165 applies in similar circumstances, as it does in relation to accomplices, it is the statutory provision which must be given effect, not the previous general law obligation: at [41].

Conway v The Queen (2002) CLR 203, applied; R v Stewart (2001) 52 NSWLR 301, considered.

4. A conviction can be challenged on the ground that it is “unreasonable, or cannot be supported having regard to the evidence”, pursuant to s 6(1) of the Criminal Appeal Act, in circumstances where there has been no failure to comply with a legal obligation and no contravention of legal prohibition: at [44].

Kanaan v R [2006] NSWCCA 109; Longman v The Queen (1989) 168 CLR 79, applied

5. The evidence given by the co-accused did not incriminate the Appellant, except by implication, beyond that which the Appellant had already admitted. In one important respect, the co-accused’s evidence positively supported the Appellant. The Appellant at trial may have sought not to undermine the evidence of the co-accused. No error has been demonstrated on the part of the trial judge in not giving a warning: at [46]–[47].

Held in relation to (iv)

1. Flight may be an admission by conduct (demonstrating consciousness of guilt). It is necessary for the jury to be directed to make up their own minds as to whether an accused did flee the scene and, if so, what significance should be attached to that action: at [48].

2. The preponderance of evidence was that the Appellant did seek to flee from the scene and lied in his explanation as to why he had done so. No other explanation was offered as to why he ran away. It was open to the jury to take the elements of the case as a whole, in order to draw an appropriate inference. No miscarriage of justice is indicated by any failure to give specific directions: at [50].

Held in relation to (v)

1. The interrelationship of the elements of a sentence renders it difficult to apply a strictly sequential approach in determining a non-parole period and balance of sentence: at [55].

R v Hampton (1998) 44 NSWLR 729, applied.

2. The court should not reduce the minimum term to be served in custody below that which, according to established sentencing principles, is the lowest which can properly be imposed. Section 44 does not impose a “statutory norm” but rather constrains, subject to special circumstances, the power of the court to expand the balance of the term beyond one-third of the non-parole period: at [57].

3. The trial judge took into account matters identified as potentially giving rise to a claim of special circumstances and there is no error demonstrated of the House v The King variety, in the conclusion reached. Accordingly, no basis has been demonstrated for interfering with the sentence imposed: at [74].

CCA 2006/1159
DC 04/11/0661

BASTEN JA
WHEALY J
LATHAM J

18 October 2006

Vikramdeep SINGH v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

1 BASTEN JA: On the night of 17 November 2003 the Appellant, Mr Vikramdeep Singh and a friend, Mr Deepak Verma, had accompanied two young women and a third man, known during the trial as Viky 2 to a nightclub at Pyrmont in Sydney. During the course of the evening, two young men from another party, Mr Ashwin Singh and Mr Alvin Singh, danced with the two young women. This resulted in heated altercations between the Appellant, Verma and Viky 2 on the one hand and Ashwin and Alvin Singh and others in their party, on the other. The Appellant’s group were asked to leave the club by security guards, which they did. Mr Alvin Singh apparently left the club independently and went to sleep in the car of another cousin, Mr Anthony Singh. Later Anthony and Ashwin Singh left the club, met the Appellant, Verma and Viky 2 and a fight broke out. In the course of the fight, Anthony and Ashwin Singh were seriously injured and the Appellant and Mr Verma were arrested. Viky 2 fled and was not captured.

2 The Appellant and Mr Verma were charged with a number of offences, both being convicted on the second charge that they:

2. On 17 November 2003, at Pyrmont in the State of New South Wales, being in company with each other and a person unknown, did maliciously inflict grievous bodily harm upon Anthony SINGH.

The Appellant (though not Verma) was also convicted on a further charge in relation to Anthony Singh, namely that he:

4. On 17 November 2003, at Pyrmont in the State of New South Wales did steal a Nokia 8250 mobile phone, being the property of Anthony SINGH from the person of Anthony SINGH.

3 The Appellant and Verma were also charged in relation to the assault on Mr Ashwin Singh, the Appellant only being convicted on two counts, namely that he:

5. On 17 November 2003, at Pyrmont in the State of New South Wales, did maliciously wound Ashwin SINGH with intent to do grievous bodily harm.
7. On 17 November 2003, at Pyrmont in the State of New South Wales, being in company with each other and a person unknown, did assault Ashwin SINGH with intent to rob him and that the said Deepak VERMA and Vikramdeep SINGH, immediately before that assault, wounded Ashwin SINGH.

4 The Appellant, Verma and Viky 2 had arrived at the nightclub in a car owned by one of the young women, Ms Shabana Nisha. In the course of the evening, the rear window of the car was smashed. The Appellant was also convicted on the following charge, namely that he:

9. On 17 November 2003, at Pyrmont in the State of New South Wales, did maliciously damage property, namely a motor vehicle, registration SZE–391.

5 On the four charges of which he was convicted, the Appellant was sentenced to 9 years and 4 months imprisonment, with a non-parole period of 7 years and 6 months. Mr Verma, who was convicted only on count 2, received a sentence of 2 years imprisonment, with a non-parole period of 18 months.

The appeal

6 The Appellant’s complaints, as articulated during the course of the appeal, were directed at the conduct of the case run at trial for his co-accused, Mr Verma, and the trial judge’s response to that case. He complained of an attack on him in the course of cross-examination by the co-accused, as being “improper and inflammatory”. He also complained of comments made by counsel for Mr Verma in the course of his address. As summarised in the written submissions:

“A central theme of the address was that the appellant was the villain and Mr Verma was the ‘peacemaker’.”

7 In relation to the rulings of the trial judge, the Appellant challenged the refusal to allow his counsel to cross-examine Mr Verma as to certain matters of credit and the failure to give a warning to the jury as to the risks in relying on Mr Verma’s evidence against the Appellant. There was also a complaint about a failure to give a specific direction with respect to evidence of flight, evincing a consciousness of guilt.

8 On one view, the most serious concern raised by the Appellant related to the dangers which attend reliance upon the evidence of one co-offender, to convict another. Each has an incentive to minimise his own involvement in a criminal activity, with a consequential effect, if not a deliberate intention, of casting responsibility on the other. Further, one co-offender is entitled to be allowed all proper opportunities to challenge the credibility of the other, and to have the jury cautioned as to the potential unreliability of such evidence. These complaints require that the evidence given by the co-accused, Mr Verma, be placed in its context within the trial, which spanned some 20 days of hearing. Where a trial appears to depart from such basic principles, it is necessary to determine whether the departures resulted in a miscarriage of justice.

9 There may be some doubt as to whether these various grounds each involve a question of law alone, for the purposes of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). If they do not, leave is required to appeal against the conviction. However, no issue was raised in this respect and the matters will, in any event, be addressed on their merits.

The effect of evidence of co-offender

10 As the Appellant claimed, Mr Verma did portray himself as a “peacemaker”. However, it is less clear that he either sought to, or did, in his evidence portray the Appellant as “the villain”. To consider that claim, it is necessary to evaluate separately the evidence concerning the assaults on Mr Anthony Singh and those on Mr Ashwin Singh. As the Crown accepted in its submissions on the appeal:

“Identification of the appellant and his co-offender was a major issue during the trial. Anthony and Ashwin Singh gave confused evidence about the appearance and various physical attributes of their attackers.”

11 The Appellant was distinguished from his two associates, because he wore a light-blue long-sleeved shirt and black leather shoes. Both Verma and Viky 2 had green checked shirts, although Verma’s was short-sleeved whereas Viky 2 apparently had a long-sleeved shirt with the sleeves rolled up. Several of the descriptions identified one of the checked shirt wearers as having a large gap between two front teeth. It was common ground that this did not describe Mr Verma or the Appellant, although the latter was said to have a small gap between two front teeth. Both said it described Viky 2.

12 The description given by Anthony Singh of his assailant appears to have fitted that of Viky 2: Tcpt, 11 August 2004, pp 48-49 and 50. At the time he was being assaulted, he gave evidence that he saw his cousin Ashwin being assaulted by the Appellant (“the guy with the blue shirt”): p 51. However, he also described the man who was kicking him on the ground as having black dressy shoes, a description which accorded with the Appellant’s footwear. At the scene of the attack, Anthony Singh pointed out Verma as the man in the green checked shirt who had attacked him. Anthony Singh gave evidence that he was forced to the ground by the man with the gap in his teeth and was kicked by two men whilst on the ground, including the one with black dressy shoes. However, in cross-examination, he agreed that Verma did not have a gap in his teeth and that he was mistaken in his identification of him: Tcpt, 12 August 2004, p 30. Further, Mr Verma was not wearing black dressy shoes, but brown suede shoes. One man, apparently Viky 2, demanded his mobile and wallet. The mobile phone was found on the Appellant.

13 Identification of Ashwin Singh’s assailant was also confused in parts. Both Ashwin and Anthony Singh agreed that it was a man with a blue shirt who assaulted Ashwin: Tcpt, 11 August 2004, p 51 and 12 August 2004, p 67 ff. Ashwin Singh’s blood was found on the Appellant’s shirt. The Appellant himself gave evidence that he had been involved in a fight with Ashwin Singh (at Tcpt 19 August 2004, p 9):

Q. You’re telling the Court that you can see Mr Ashwin Singh coming towards you.
A. Yes, I saw Ashwin Singh coming towards me.
Q. Tell the court what happened then?
A. He was running towards me, then I was on the other side he came running towards me and stood against me.
Q. When you say he stood against you, how far away from you was he?
A. He came toward me, I took two step backwards, then I punched him.
…
Q. Why did you punch him?
A. I saw him, like, he was holding bottle in his hand.

14 This was undoubtedly an account of a fight with Mr Ashwin Singh, but with the Appellant defending himself. However, at the trial, Mr Ashwin Singh was adamant that the Appellant was not the man who attacked him with a broken bottle: Tcpt, 12 August 2004, pp 116-124.

15 To convict on count 5, the jury must have rejected the Appellant’s claim of self-defence and also rejected the victim’s evidence of identification, whilst in the witness box.

16 Mr Verma gave evidence as to the men leaving the club and walking a short distance, before being approached by Anthony and Ashwin Singh, from behind and being accosted by them. However, this evidence was inconsistent with independent evidence (from CCTV cameras) of the time the various parties left the club, his group having left 30 minutes before the others. Mr Verma stated that “the short guy Ashwin” had said “So what?” in response to a comment from Viky 2. He gave evidence that Viky 2 then struck the taller guy (Anthony) and pushed him: Tcpt, 20 August 2004, p 33. He asserted that Ashwin struck at him (Verma), without properly connecting and then ran in the direction of Casino: Tcpt, p 34-35. Mr Verma said that he had shouted a warning to the Appellant that Ashwin Singh was running towards him. His evidence continued (Tcpt, p 36):

“I couldn’t really hear anything but I did see Viky 1 [the Appellant] and Ashwin Singh struggling but I couldn’t even clearly see that because it was a little dark.”

He denied seeing either the Appellant or Viky 2 with a bottle in his hand. He did, however, see Viky 2 kicking Anthony Singh on the ground. He said (Tcpt, p 38):

“I first tried to pull Viky 2 off Anthony Singh because he was on the ground and I pulled him by his shirt and he turned around and he poked me on the chest and he said, ‘Leave me alone’.”

17 Mr Verma said he then went over to where Ashwin Singh and the Appellant had been and saw Ashwin Singh on the ground “and he was all in blood, his shirt was drenched in blood and there was a fair amount of blood around him too and Viky 2 [later corrected to the Appellant] was still kicking him”. He said that he grabbed the Appellant, pulled him away from Ashwin Singh and he “never kicked him after that”: p 39.

18 At least in relation to the fighting, Mr Verma’s evidence could hardly be said to have portrayed the Appellant as “the villain”. He did not suggest that the Appellant attacked Anthony Singh and, although his evidence was consistent with the Appellant getting the upper hand over Ashwin Singh, his evidence was also consistent with the Appellant’s story that he was attacked first. According to Mr Verma, the first blow struck was the punch Viky 2 inflicted on Anthony Singh, after Anthony and Ashwin Singh had accosted Viky 2 and Verma himself.

Cross-examination of the Appellant on behalf of co-offender

19 Mr Game SC for the Appellant, quoted in written submissions three passages from the cross-examination of the Appellant, which he identified as improper or inflammatory. He further invited the Court to read the whole of the cross-examination, which I have done. The three passages quoted are those which give most substantial support to his complaint. The first passage (Tcpt, 19 August 2004, p 52) drew the Appellant’s attention to evidence given by Mr Anthony Singh and continued:

Q. He was describing your shoes, wasn’t he? You were that second man that assaulted Anthony Singh, weren’t you?
A. No sir.
Q. Do you think that it’s just a coincidence or he made it up, that he precisely and accurately … .

Objection was taken that the witness could not be invited to comment on someone else’s evidence. The trial judge saw the question as itself a comment and counsel withdrew it. The objection was valid and the response appropriate, but to describe the comment as inflammatory is to overstate the matter. Mr Anthony Singh had given unequivocal evidence that he had been kicked by two people. The Appellant agreed that he had seen Viky 2 kick Anthony Singh once and agreed that he had not seen Mr Verma assault Anthony Singh. Prior to the double question set out above, referring both to the description of his shoes and the suggestion that it was he who assaulted Anthony Singh, counsel for Mr Verma had asked this question:

Q. You remember Anthony Singh also told us that the second man who assaulted him, the other man, in addition to the man with the gap, he described the second man as wearing black leather shoes with no laces, no buckles, dress shoes. Remember that evidence?
A. Yes sir.

20 The questions that followed were somewhat inept, but the inference was no doubt obvious. Taken in isolation, no significant harm was caused.

21 The second passage could reasonably have been described as inflammatory. It related to the Appellant kicking Mr Ashwin Singh and read as follows (Tcpt, p 61):

Q. Would you agree with this, if you had continued to kick him you may well have killed him or given him severe brain damage. Would you agree with that?
NAUGHTON (for Appellant): Your Honour, my witness is not qualified to give that sort of evidence.
HIS HONOUR: You don’t need to be a medical practitioner to work that out. Go on, I’ll allow that.
LAVAC (for Verma): Q. Would you agree that if you had continued to kick this man on the ground in the head, you could have either killed or him or inflicted serious brain damage. Do you agree with that?
A. But, sir, if somebody was come with a bottle should I say that, yeah, I’m standing here, kill me.
HIS HONOUR: Q. That’s not the question you were asked.
A. Could be.
LAVAC: Q. The only reason that you’re not facing a murder charge is because this man pulled you off him.
HIS HONOUR: No, I reject that.
LAVAC: Q. The only reason you stopped kicking him was because this man pulled you off him.

The last question was allowed, over objection, but appears not to have been answered.

22 Read in the abstract, such cross-examination might well be seen as inflammatory. Nevertheless, both the characterisation and the consequences should be assessed in their context. The prosecution case was that the Appellant, Viky 2 and Verma were the aggressors and that, at least in relation to Anthony Singh, who suffered significant injuries, at least two men were, on his account, involved in the attack. Assuming that all three were not involved, and assuming that Viky 2 was the principal assailant, the second man was either the Appellant or Verma. As appeared from the passage set out above, Mr Verma had the benefit that Anthony Singh had accurately described the Appellant’s shoes as those belonging to one of the men involved. Mr Verma was entitled to distance himself as best he could both from any motive for the attack and from actual involvement. So far as motive was concerned, his counsel cross-examined the Appellant to suggest that he was angry that his girlfriend, who had been one of the young women who accompanied them to the club, had refused to dance with him, leaving him as “odd man out”: Tcpt, 19 August 2004, p 39. It was also put to him that Mr Verma had said words to the effect, “Stop being an idiot. Stop ruining everybody’s evening”. That he had denied: p 41.

23 The specific lead up to the question complained of commenced at Tcpt p 59:

Q. I put this to you first, would you agree that while you were kicking Ashwin Singh when he was on the ground covered with blood Mr Verma restrained you and pulled you off? Would you agree with that?
A. No, sir.
Q. You disagree.
A. Yes, sir.
Q. Absolutely sure.
A. Yes, sir.

It was further put to him that he was “very very drunk” and, indeed, was so drunk that he could not tell the police whether he had hit Mr Singh or not. He had also told the police that he did not know where he was kicking Mr Singh, although he agreed that he had been kicking Ashwin Singh. The immediate predecessor to the passage complained of involved the following exchange:

Q. The reason you didn’t know where you were kicking is because you were so drunk. Isn’t that right?
A. Because it happened so quickly and that’s why, yes.

24 In a context where the Appellant accepted that he had been involved in a fight with Ashwin Singh, but relied on self-defence, suggestions about what might have happened had he continued to kick Ashwin Singh would have had limited impact on the jury’s assessment of the charge. Counsel for Mr Verma was entitled to explore the contradiction between his client’s evidence of the event and that given by the Appellant and the degree of the awareness of the Appellant of events occurring at the time. Questioning as to the likely consequences of continuing to kick a man in the head may have pushed the boundaries of the permissible, but in the context of the undoubtedly serious injuries already inflicted did not result in a miscarriage.

25 The third element of the cross-examination of which complaint is made is relevant to the failure of the trial judge to explain to the jury the significance of evidence of flight. The passage in the cross-examination of the Appellant read as follows (Tcpt, p 65):

Q. The reason you didn’t want him to call the police and the reason you ran from the police was because you committed a serious assault on two men, didn’t you?
A. No sir.
Q. That’s the reason why Viky 2 also ran away, isn’t it?

26 The first question appears to have been a double question, with counsel changing tack in the middle. The second question was properly rejected. Again, the questioning must be put in context. There was no doubt that Viky 2 (for whatever reason) had fled the scene of the violence. Mr Verma, apparently, did not run. The Appellant, on the other hand, did start to run, although he said that he was jogging towards the police, in order to seek protection: Tcpt, 19 August 2004, pp 16 and 66. His evidence in that respect was contradicted by a number of witnesses, including police officers, and is unlikely to have been accepted by the jury: see evidence of Mr George Caralis, Tcpt, 13 August 2004, pp 101 and 102; Mr Tommaso Ragusa, Tcpt, 16 August 2004, pp 28-30; Constable Sly, Tcpt, 16 August 2004, pp 56-57; Constable Lynch, Tcpt, 16 August 2004, p 44 and Constable Rowbottom, Tcpt, 16 August 2004, p 52. In the context of this evidence, and the Appellant’s explanation as to why he was jogging away from the scene of the attack, no complaint could have been made of a properly worded question designed to challenge the reason he had given. The questioning complained of was not well formulated, but it was not inflammatory and could not have caused a miscarriage.

Cross-examination of co-offender

27 Although he did not run from the scene of violence, there was unequivocal evidence that Mr Verma sought to depart unnoticed. Constable Wunderlich gave evidence that Mr Verma started walking south down Pirrama Road, Pyrmont, as soon as the police vehicle pulled up, going in the opposite direction to that taken by the Appellant. He was accosted by the constable and replied that he had just broken up a fight, but continued walking: Tcpt, 16 August 2004, p 61. He was then identified by Anthony Singh as one of his assailants. Despite the officer twice yelling at him to stop he continued walking, requiring Constable Wunderlich to jog after him and grab him by the shoulder: p 62.

28 In the course of the cross-examination of Mr Verma, by counsel for the Appellant, he was asked about the student visa which he had obtained in 1999, when he came to Australia. Counsel for Mr Verma objected, and, in the absence of the jury, complained of cross-examination which appeared to be directed at the fact that he was “an overstayer” or, in the terms of the Migration Act 1958 (Cth) an unlawful non-citizen in Australia: Tcpt, 20 August 2004, p 59. The evidence was presented on the basis that it “certainly impacts upon his character”: p 61. To that suggestion, his Honour noted that s 138 of the Evidence Act 1995 (NSW) applied and rejected the questions on the basis of that provision: p 62. This was a misconception (that provision deals with exclusion of improperly or illegally obtained evidence), but his Honour may have intended to refer to the general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger of unfair prejudice, if it may be misleading or confusing or if it might cause or result in undue waste of time: s 135.

29 The matter having been put on the basis of character, the Prosecutor pointed out that leave was required before Mr Verma could be cross-examined, pursuant to s 112 of the Evidence Act. Although character was invoked by counsel for the Appellant, he also put the application squarely on the basis that it went to the honesty of the witness and hence raised a matter of credibility. A similar issue arose on the same day of the trial, immediately following the lunch adjournment in relation to a separate matter having the same underlying purpose. Thus, counsel for the Appellant also sought to cross-examine Mr Verma as to his attempt to dispose of identification papers in his wallet, by hiding them under the seat in the back of the caged police vehicle in which he was placed on arrest. When they were discovered, he claimed that they belonged to a cousin.

30 When these matters were put to him on a voir dire he agreed that he had lied to the police and said he did so because he was concerned about his “status in this country”. Following that evidence, his Honour ruled that questions on that issue would not be admitted, because they fell into “the same category I ruled on before lunch”: Tcpt, 20 August 2004, p 68.

31 As noted by the High Court in Melbourne v The Queen (1999) 198 CLR 1 and reaffirmed in Stanoevski v The Queen (2001) 202 CLR 115 at [29] “character evidence may be relevant to an accused’s propensity to commit a crime, or to the credibility of an accused, or to both of these questions.” In the present case, the evidence in question went entirely to the truthfulness of Mr Verma and hence, in a case involving violence and not dishonesty, should be treated as going only to the question of credibility. Accordingly, the evidence was generally not admissible, pursuant to s 102 of the Evidence Act (the “credibility rule”). There is, however, an exception in s 103 which provides:

103(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

32 In explaining his views, his Honour stated to counsel for the Appellant, just prior to giving his initial ruling (at pp 61-62):

“… I know where you’re going but it seems to me that this evidence if permitted is not going to assist your case very much. It is overwhelmingly prejudicial. Some people in this country have strong views about people who overstay their visas. It seems to me that it is unfairly prejudicial for you to ask this question for the tiny bit, if any, of benefit that you’ll get from it. It is overwhelmingly prejudicial.”

33 Section 103 was not invoked, but should have been because it contained mandatory considerations which were not addressed. Nevertheless, there has been no miscarriage of justice. It is clear from his Honour’s remarks that he did not accept that the evidence had “substantial probative value”, being the phrase invoked by s 103(1). He also thought that any probative value it might have would be overwhelmed by the prejudicial effect, perhaps invoking the concepts found in s 135. That was a relevant consideration under s 103. If his Honour had addressed the mandatory considerations set out in s 103(2), he would most probably have concluded, in relation to evidence of overstaying, that there was no “false representation” involved. In relation to the evidence of hiding identification documents in the police van, he would certainly have found that there had been a false representation and that it was recent, because directly connected with his arrest on the relevant charges. However, the explanation given on the voir dire would have deprived the falsity of any significant force. The reason for the lie was unrelated to the acts of violence. No doubt it demonstrated a willingness to lie to avoid adverse personal consequences, but it seems unlikely that the jury would have been surprised by that suggestion. Indeed, in one sense the exclusion of the evidence may have worked in the Appellant’s favour. Despite his asserted innocence of any involvement in the violent conduct of the Appellant and Viky 2, the evidence of Constable Wunderlich must have given the jury a firm basis for concluding that he too was anxious to avoid apprehension. That he may have had a separate and independent reason for avoiding apprehension, namely concern about his immigration status in Australia, was a fact the jury did not know, but is not a matter about which the Appellant can complain.

Co-offender’s address to the jury

34 This complaint reverts to the assertion, attributed to counsel for Mr Verma, that the Appellant was the villain and Mr Verma the peacemaker on the night in question.

35 In relation to counsel’s address, there is force in this characterisation. He described Mr Verma as “pretty cool and unruffled” in the witness box, “because he was telling the truth”, as compared with the Appellant, who was “rattled and ruffled” by cross-examination: Tcpt, 23 August 2004, p 57. He also described Mr Verma as “being the perfect gentleman”, “a person of good character, a person incapable of committing these sort of offences” and a person who had been acting as “the peacemaker in the nightclub during a heated situation”: p 62. The source of the problem was the quarrel between the Appellant and his girlfriend (p 65). He suggested that Mr Verma did not “depart the scene” when the police approached, unlike the Appellant and Viky 2: p 69. He asserted that it was “quite obvious” that the Appellant “was the troublemaker in the club because of the tension and his anger” towards his girlfriend. This, counsel asserted, “had absolutely nothing to do with Verma”: Tcpt, 23 August 2004, p 5. He did, however, rely upon the Appellant’s evidence that he did not see Mr Verma assault anyone: Tcpt, 23 August 2004, p 4.

36 Counsel’s address undoubtedly put a case favourable to Mr Verma as strongly as it could be put. He was entitled to do that. One result was to paint the Appellant as a drunk and angry man with a motive to attack Anthony and Ashwin Singh. Nevertheless, a reading of the address as a whole does not convey an impression that it was inflammatory, as against the Appellant, to the extent of it being improper or unfair to the Appellant. There is no substance in this ground of complaint.

Warning with respect to evidence of co-accused

37 Warnings with respect to unreliable evidence are dealt with in Part 4.5 of the Evidence Act. Section 165 relevantly provides:

165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
…
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

38 There is no doubt that the evidence of Mr Verma fell within the terms of s 165(1)(d). However, it is also common ground that the obligation in sub-s (2) was never engaged, because no one requested the trial judge to give a direction to the jury in accordance with its terms, either before his summing-up commenced, or at any stage thereafter. It follows that there has been no contravention of the statutory obligation.

39 That may not be an end to the matter, however, because the section is expressed as not affecting any other power of the judge to give a warning to the jury. Although the Appellant is obliged to seek leave to challenge a failure to give a direction, not sought at trial, by virtue of r 4 of the Criminal Appeal Rules, that leave should not be refused if the circumstances of the case indicate a miscarriage of justice: see generally R v ITA (2003) 139 A Crim R 340 at [92]-[97], although the reference at [95] to the principles stated by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [72] should take account of the reservation expressed by Gaudron and Kirby JJ at [44]; see also Kanaan v R [2006] NSWCCA 109 at [156] (Hunt AJA, Buddin and Hoeben JJ).

40 In R v Stewart (2001) 52 NSWLR 301, Howie J (with whom Hulme J relevantly agreed at [34]) dealt with the warnings given to juries at common law before dealing with warnings under the Evidence Act: at [70]-[83]. His Honour also noted the fact that s 164(3) had abolished the general law obligation to warn a jury that it is dangerous to act on uncorroborated evidence. As his Honour noted, one category of cases where that warning was traditionally required was in relation to accomplices. However, his Honour continued at [85]:

“Although such a warning is no longer mandatory, it is open for the trial judge to give a warning as to the danger of convicting on the uncorroborated evidence of a witness and in some cases such a warning may be required, although it is unnecessary to use terms such as ‘dangerous’ or ‘corroboration’ … .”

41 This approach invites attention to s 9 of the Evidence Act, which asserts that the Act “does not affect the operation of a principle or rule of common law … except so far as this Act provides otherwise expressly or by necessary intendment”. To state that in some circumstances a warning “may be required” would appear to contradict the express abolition of an obligation to give such a warning in s 164(3). To the extent that s 165 applies in similar circumstances, as it does in relation to accomplices, it is the statutory provision which must be given effect, not the previous general law obligation. Similarly, it is significant that s 165, possibly in combination with s 164, was seen by the drafter as potentially restrictive, and as having a capability of affecting other powers of a judge to give warnings or information to a jury, with the result that such “powers” were saved by sub-s (5). As appears from the judgment of the Chief Justice in Stewart, where it is clear that the Act has made “a significant change in the law” – at [8] - the proper focus of analysis must be the statutory provision: [2]-[12].

42 In Conway v The Queen (2002) 209 CLR 203 at [53] the joint judgment of Gaudron ACJ, McHugh, Hayne and Callinan JJ dealt with a warning by a trial judge that it was dangerous to convict upon the evidence of accomplices unless confirmed in some material way by other evidence: at [52]. The joint judgment continued:

“While such a warning would have been appropriate had the general law applied, it is a warning that was framed without regard to applicable provisions of the Evidence Act … , particularly ss 164 and 165.”

After setting out the provisions of s 164, the joint judgment continued:

“Two aspects of the provision should be noted. First, it abolishes the necessity for corroboration and the necessity for a warning about acting on uncorroborated evidence; it does not prohibit warning a jury that it would be dangerous to convict on uncorroborated evidence.”

43 In Kanaan v R [2006] NSWCCA 109, this Court stated at [218]:

“In the present case, the judge was not requested to give a direction that it would be dangerous to convict on the uncorroborated evidence [of two co-offenders]. The obligation to give any warning pursuant to s 165(2) did not arise. No complaint was made that such a direction had not been given. Rule 4 therefore applies. We are not satisfied that such a direction should nevertheless have been given in the circumstances of this case… . Nor do we accept that, such a direction being permissible, any error has been demonstrated by the absence of such a direction in the present case. It would be extremely difficult in any case to argue that a direction that is unnecessary but permissible was compulsory in that particular case, particularly when no such direction was sought.”

44 It may be accepted that a conviction can be challenged on the ground that it is “unreasonable, or cannot be supported having regard to the evidence”, pursuant to s 6(1) of the Criminal Appeal Act, in circumstances where there has been no failure to comply with a legal obligation, and no contravention of a legal prohibition. As noted by Deane J in Longman v The Queen (1989) 168 CLR 79 at pp 95-96, in the context of a provision in the Evidence Act 1906 (WA) to similar effect as s 164(3):

“A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Section 36BE(1) neither negates that general responsibility in cases to which it applies nor precludes the giving of a warning of the kind referred to in the sub-section if the trial judge is satisfied that the particular circumstances of the case require it.”

45 In Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57, the joint judgment in the High Court, although addressing the general law principle relating to warnings with respect to the uncorroborated evidence of accomplices, noted that the new statutory provisions had substituted “a more flexible requirement”: [25]-[26]. The new flexibility is consistent with the principle identified by Deane J in Longman.

46 The real difficulty with the Appellant’s case in this respect is that the evidence given by Mr Verma did not incriminate the Appellant, except by implication, beyond that which the Appellant had already admitted, namely that he was involved in a fight with Ashwin Singh. Indeed, in at least one important respect Mr Verma’s evidence positively supported the Appellant, by suggesting that Ashwin Singh might have been about to attack him and giving him advance warning of that fear.

47 That fact highlights a further difficulty; namely that counsel for the Appellant at trial may well have faced a strategic decision as to the extent to which it might serve his client’s interests to undermine the evidence given by Mr Verma. A similar concern may have affected the extent to which the trial judge thought it necessary to warn the jury in relation to the unreliability of Mr Verma’s evidence, absent any request from his counsel.

Warning on significance of flight

48 The final ground of challenge is directed to the failure of the trial judge to give a warning as to the significance of the Appellant’s flight from the scene of violence. Flight may be viewed as a kind of admission by conduct (demonstrating consciousness of guilt). As appears from the discussion with respect to Mr Verma’s conduct in relation to his immigration status, a person may be motivated by things other than a consciousness of guilt in seeking to avoid investigation by the police. By analogy with the direction suggested in Zoneff v The Queen (2000) 200 CLR 234 in relation to the significance of lies, it is necessary first for the jury to be directed to make up their own minds as to whether an accused did flee the scene and, if so, what significance should be attached to that action. Further, it would often be appropriate to give the warning: do not follow a process of reasoning to the effect that just because a person is shown to have fled the scene, that he or she has revealed a consciousness of guilt.

49 Much may turn on the evidence given by an accused as to his or her reasons for acting in a particular way. In some circumstances, sheer panic may provide an explanation. Alternatively, an element of panic combined with a fear that the consequences witnessed by the police may suggest a false picture of the events which preceded them. Many detective stories are based on the understanding that all may not be as it appears.

50 In the present case, as noted above at [25]-[26], the Appellant gave evidence that he was not running away, but jogging towards police. He said that he was scared that other friends of Anthony and Ashwin Singh might arrive: Tcpt, 19 August 2004, p 50. However, that evidence was palpably inconsistent with both the evidence of police and of the independent witnesses. It was the latter who pointed the Appellant out to the police as he was running; the police tackled him in order to arrest him: Ashwin, 12 August 2004, p 75 and 13 August 2004, p 22; Caralis, 13 August 2004, p 101 and 102; Ragusa, 16 August 2004, p 30, McGowan, 16 August 2004, pp 34 and 42, Lynch 16 August 2004, p 44, Rowbottom, 16 August 2004, pp 52 and 55. If this evidence were accepted, the Appellant not only sought to flee the scene, but lied in his explanation as to why he had done so. If there were some other explanation, it was not available to the jury. In any event, no other explanation was plausible. It was, at the very least, the Appellant’s case that he had been involved in a fight with Ashwin Singh and that Ashwin had ended on the ground and been kicked. It was open to the jury to treat these various elements of the case as a whole, in order to draw an appropriate inference. There is no miscarriage of justice indicated by any failure to give further directions.

Conclusion - conviction

51 In relation to the appeal against conviction, leave should be granted, to the extent necessary, but the appeal should be dismissed.

Application for leave to appeal - sentence

52 The basis of the application for leave to appeal against sentence is that, despite the trial judge’s finding to the contrary, there were “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) which warranted the balance of the period of the sentence exceeding one-third of the non-parole period. The purpose of the variation sought is not, of course, to increase the total sentence period, but to reduce the non-parole period.

53 Section 44 of the Sentencing Procedure Act is somewhat awkwardly drafted; so far as relevant it provides:

44 Court to set non-parole period
(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

54 The relationship between that part of a sentence which must be served in custody and that which may be served under supervision within the community has long been a focus of attention. According to general sentencing principles, an offender should be required to serve the least appropriate period in custody, consistent with the primary purposes of detention, including deterrence and retribution. The purpose of supervised release in the community is primarily rehabilitative. Nevertheless, in most circumstances release is not automatic and accordingly the total sentence period must be given close attention, as it is a period the whole of which may be spent in custody.

55 The interrelationship of the elements of a sentence renders it difficult to apply a strictly sequential approach: this was recognised in R v Hampton (1998) 44 NSWLR 729 at 732B-C (Spigelman CJ, Powell JA and Newman J agreeing).

56 The exercise of specifying the elements of a custodial sentence has varied somewhat over the years since the first provision in similar form to the present s 44 was enacted in s 5 of the Sentencing Act 1989 (NSW). That section provided that the Court must first set a minimum term and, secondly, an additional term which “must not exceed one-third of the minimum term, unless the court decides there are special circumstances”. It is well-established that the variation intended by reference to special circumstances must refer to “those circumstances which justify enlarging in the prisoner’s favour the existing rehabilitative purpose”: see R v Moffitt (1990) 20 NSWLR 114 at 116B (Samuels JA). However, the sequence has not always been approached in the same way. Thus, with the advent of the Sentencing Procedure Act in 1999, the court was required first to set the term of the sentence and, secondly, to set the non-parole period which “must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less”: see s 44, as enacted.

57 Because of the difficulty of treating the statutory command as involving a strictly sequential approach, the reversal of order in the present s 44 must be understood as changing the appropriate emphasis to be given to each part of the sentence. In accordance with the present form of the provision, the courts must be attentive to the obligation not to reduce the minimum term to be served in custody below that which, according to established sentencing principles, is the lowest which can properly be imposed. It is also necessary to bear in mind that the section does not impose a “statutory norm” but rather constrains, subject to special circumstances, the power of the court to expand the balance of the term beyond one-third of the non-parole period. The section itself imposes no constraint on the reduction of the balance below one-third of the non-parole period, as occurred in the present case.

58 In order to assess the basis of the challenge to the sentence, it is necessary to identify the effect of the several sentences imposed by the trial judge.

59 The trial judge sentenced the Appellant first in relation to the two counts on which he was convicted in relation to Mr Ashwin Singh. Count 5, involving a charge of maliciously wounding Ashwin Singh with intent to do grievous bodily harm, constituted an offence under s 33 of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment. Count 7 charged that the Appellant, in company with another person, assaulted and wounded Mr Ashwin Singh with intent to rob him. This charge, laid under s 98 of the Crimes Act, also carried a term of 25 years imprisonment. Each of these offences is contained in the table of standard non-parole periods set out in s 54D of the Sentencing Procedure Act: see items 4 and 11. The standard non-parole period for each is fixed at 7 years. There was no suggestion that these were not offences to which the standard non-parole period should apply and, accordingly, his Honour was correct to commence with a non-parole period of 7 years.

60 Applying the standard one-third of the non-parole period to calculate the balance of the term of the sentence, pursuant to s 44 of the Sentencing Procedure Act, his Honour imposed a further period of two years and four months, giving a sentence period of 9 years and four months. These counts were treated as involving a single incident of criminality and the respective sentences were made entirely concurrent.

61 Count 2 involved the malicious infliction of grievous bodily harm, in company, being a charge laid under s 35(2) of the Crimes Act and carrying a sentence of 10 years imprisonment. The offence did not carry a standard non-parole period. The maximum penalty was 40% of the maximum penalty under s 33. His Honour imposed a non-parole period of two years and three months, with a nine month balance of the term of the sentence, giving a total sentence of three years. In relation to Mr Verma, who was also convicted on count 2, his Honour stated in his remarks on sentence (Tcpt, 1 October 2004, p 12):

“I am satisfied that the injury to Anthony Singh involving as it did a fracture to his left orbit did in fact constitute grievous bodily harm and the jury was clearly satisfied beyond reasonable doubt of that fact.”

He then imposed a sentence on Mr Verma of two years imprisonment with a non-parole period of 18 months.

62 Dealing with the matters generally, his Honour found that “these offences involved gratuitous cruelty, even for the types of charges they were”: Tcpt, p 10. He also described them as “part of a planned criminal activity, even if the planning involved was only of the duration of about half an hour or so”: pp 10-11.

63 The Appellant was convicted on count 4, which charged the stealing of a mobile telephone from Anthony Singh. That was appropriately treated as part of the overall criminality in relation to Anthony Singh and the sentence imposed on count 4 was made entirely concurrent. In his reasons on sentencing, the judge stated that it was made concurrent with the sentences for the attacks on Mr Ashwin Singh, rather than the sentence with respect to Mr Anthony Singh, but nothing turns on that: Tcpt, p 13.

64 The real issue in relation to sentencing concerned the degree of accumulation of the sentence for count 2 (relating to Mr Anthony Singh) and the sentences on counts 5 and 7, relating to Mr Ashwin Singh. His Honour concluded (p 13):

“For count 2 there must, in my view, be some small accumulation of that sentence which will be mainly concurrent with counts 5 and 7, but which as to six months of it will be cumulative. The result will be that [the Appellant’s] total effective non-parole period will be a period of seven and a half years.”

65 The resultant sentence was thus a term of nine years and four months, with a non-parole period of seven years and six months. The result was a non-parole of about 80% of the total sentence. That followed from the sentence on count 2 commencing on a date which would allow the non-parole period to be extended by six months, but which meant that the balance of nine months was entirely subsumed within the balance of sentence on counts 5 and 7.

66 The terms of the concurrent non-parole periods of seven years commenced on 13 July 2004 and will expire on 12 July 2011. The balance of those terms, two years and four months, will expire on 12 November 2013. The increase in the non-parole period of six months, will extend that period until 12 January 2012. To achieve that, a non-parole period of two years and three months needed to commence on 13 October 2009. In the course of sentencing the Appellant, with respect to count 2, his Honour stated:

“Your non-parole period for that offence will commence on 13 May 2010 and will end on 12 August 2012 which, if my arithmetic is correct, will be your effective release date subject to questions of parole.”

Following sentencing on counts 4 and 9, his Honour concluded, advising the Appellant that his “overall term will end on 12 August 2012 … .”

67 These statements in fact involve error, but no complaint is made about the arithmetical errors and the warrant of commitment for the Appellant correctly identifies the dates which resulted from his Honour’s expressed intentions.

68 Count 9 involved a charge of malicious damage to property, being the car owned by Shabana Nisha. An entirely concurrent sentence of one year imprisonment was imposed for that offence.

69 In two respects, the sentencing result was favourable to the Appellant. The assaults on Ashwin and Anthony Singh were separate incidents, each involving significant injury to the respective victims. Similarly, the malicious damage to the car was a separate incident, though of a less serious nature. There is little doubt that the trial judge had in mind in determining the degree of accumulation the need to avoid a total sentence which was disproportionate to the overall criminality.

70 In seeking an adjustment downwards of the non-parole period of seven years the Appellant sought to rely on his personal circumstances. The written submissions noted:

“The Appellant was a young man (21) at the time of the offence (DOB 25/6/82). He was doing post-graduate studies in Australia and had only been here for six months at the time of the offence (see Tp 661). He had no prior convictions, had obviously never been in gaol before and was to serve a lengthy sentence, a very long way from support of family and friends. His Honour found in relation to the appellant that he ‘may also (ie as well as Mr Verma) have good prospects of rehabilitation’ (Remarks p 9.9).”

71 The Appellant noted that, despite the provisions of Part 4, Division 1A of the Sentencing Procedure Act, it was open to the trial judge to decide that there were “special circumstances”, which would allow a variation of the balance of the term, pursuant to s 44(2), so that it might exceed one-third of the non-parole period. His Honour appears to have accepted that he had the power, but declined to exercise it. Thus in the remarks on sentence (p 12) he stated:

“I have been asked, certainly in the case of [the Appellant], to find special circumstances within the Crime Sentencing Procedure Act , but I do not make a finding of special circumstances. I see no particular special circumstances so as to justify that finding.”

72 In relation to his assessment of the factors required to be taken into account under s 21A of the Sentencing Procedure Act, his comments in relation to matters of aggravation are noted at [62] above. In relation to mitigating factors, his comments with respect to the Appellant were more guarded than the submissions suggested:

“The probability is that [the Appellant] is also unlikely to re-offend. In my view, Verma certainly has good prospects of rehabilitation and perhaps, although I am not as sure in his case, [the Appellant] may also have good prospects of rehabilitation.
…
The [Appellant] has uttered some words to the author of the pre-sentence report indicating that he is sorry for what happened in effect. I have deep reservation about the sincerity of the utterance of those words. I have no doubt that he regrets what happened in the sense of the predicament he now finds himself in. Whether his remorse is genuine or not, I am really not sure.”

73 His Honour also made the following comments, after noting that Viky 2 was “the primary kicker of Anthony Singh” stating that the Appellant was “at least one of the men who kicked him”. He continued (p 9):

“I am dealing with men who have no criminal convictions and who appear to come from good families who are not usually men of a violent nature. I am satisfied that each of them was acting outside his usual character in relation to the events of this particular night.
I have taken into account all their personal circumstances. I have taken into account all the matters subjectively that are raised in the pre-sentence reports in relation to each of them. …
In relation to [the Appellant], a reading of his pre-sentence report, indicates that he seems to stick to the story he tried to tell the jury that what in fact happened was that the victim Ashwin Singh initially attacked him or came towards him brandishing a bottle. In my view that version is patently untrue, and having regard to the relevant evidence, is absurd and was properly rejected by the jury.”

74 Apart from the absence of specific reference to the lack of support from family and friends in Australia, his Honour took into account matters identified as potentially giving rise to a claim of special circumstances. There is no error demonstrated of the House v The King variety, in the conclusion reached. Accordingly, no basis has been demonstrated for interfering with the sentence imposed.

75 The application for leave to appeal against the sentence should be granted, but the appeal should be dismissed.

76 WHEALY J: I agree with the orders proposed by Basten JA and with his reasons.

77 LATHAM J: I agree with Basten JA.

**********

27/06/2007 - Respondent incorrect - changed "Department" to Director - Paragraph(s) Coversheet and judgment heading