Smale v R - [2007] NSWCCA 328

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: SMALE, Garry Anthony v R [2007] NSWCCA 328
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2002/2373

HEARING DATE(S): 26 October 2007

JUDGMENT DATE: 29 November 2007

PARTIES:
Garry Anthony SMALE v Regina

JUDGMENT OF: Mason P James J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): DC 2002/95

LOWER COURT JUDICIAL OFFICER: Patten AJ

LOWER COURT DATE OF DECISION: 26 August 2005

COUNSEL:
D Arnott SC (Crown)
D Patch (Appellant)

SOLICITORS:
S Kavanagh (Crown)
North and Badgery Solicitors (Appelllant)

CATCHWORDS:
APPEAL - Conviction appeal - Judge summing up on case not relied upon by the Crown - application of the proviso - Sentence appeal - Ground based on fresh evidence - CRIMINAL LAW - Practice and Procedure - whether address by prosecutor unduly prejudicial - Summing up - case not relied upon by Crown - CRIMINAL LAW - Evidence - Whether evidence of other offences inadmissible or unduly prejudicial - CRIMINAL LAW - Sentence - offender convicted of murder and the included offence - double punishment.

LEGISLATION CITED:
Crimes Act 1900 - ss 18(1), 97(2)
Firearms Act 1996
Evidence Act 1995 - ss 137, 165
Criminal Appeal Rules - rule 4
Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(j), 23A(3)(j)

CASES CITED:
R v Sharah (1992) 30 NSWLR 292
Livermore v R [2006] NSWCCA 334
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
Thorne v R [2007] NSWCCA 10
R v Murray (1987) 11 NSWLR 12
R v Solomon [1980] 1 NSWLR 321
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Weiss v The Queen [2005] HCA 81; 224 CLR 300
R v Deng [2007] NSWCCA 216
R v Fordham (1997) 98 A Crim R 359
R v Henry (1999) 46 NSWLR 346
R v Bo Too (NSWCCA, unreported, 16 July 1992)
R v HQ [2003] NSWCCA 336
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Oinonen [1999] NSWCCA 310
R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510
Pearce v The Queen [1998] HCA 57; 194 CLR 610

DECISION:
1. The appeal against conviction of the charge of murder is dismissed. 2. Leave is granted to appeal against sentence in respect of both sentences. 3. The appeal against the sentence for murder is dismissed. 4. (i) The appeal against the sentence for the armed robbery offence is allowed. (ii) The sentence imposed is quashed. In lieu the appellant is sentenced to imprisonment for 8 1/2 years from 18 March 2002. (iii) There is to be a non-parole period of 6 years 4 months to expire on 17 July 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2002/2373
MASON P
JAMES J
HOWIE J
THURSDAY 29 NOVEMBER 2007

Garry Anthony SMALE v Regina

Judgment

MASON P: I agree with Howie J.
JAMES J: I agree with Howie J.
Introduction
HOWIE J: The appellant stood trial before Patten AJ (the Judge) on a charge of murder. The jury convicted him and, as a result, on 26 August 2005 the Judge sentenced him to imprisonment for 18 years with a non-parole period of 13 years and 6 months. That sentence commenced on 18 March 2002 and the appellant is eligible for release to parole on 17 September 2015. The appellant had also previously pleaded guilty to a charge of armed robbery with a dangerous weapon while in company. The Judge sentenced him for that offence on 1 September 2005 to imprisonment for 13 years with a non-parole period of 9 years and 9 months. That sentence was wholly concurrent with the sentence for murder. He appeals against conviction for the offence of murder and makes application for leave to appeal against the sentences for both murder and armed robbery.
The Crown case was that the appellant and a man named Shane Wigney robbed a hotel in Leichhardt in the early hours of 19 July 2001. Wigney was armed with a loaded revolver and in a struggle with a bar manager fired two shots, one of which struck and killed him. Wigney eventually pleaded guilty to murder and agreed to give evidence against the appellant. As a result of that undertaking he received a discount of the sentence both for the murder and for an unrelated offence of armed robbery.
In brief it was Wigney’s evidence that the appellant knew before the robbery that the revolver was loaded because he had wiped the weapon and the bullets in order to destroy any fingerprints. Wigney maintained that during the robbery the appellant had been armed with a knife.
The appellant admitted that he was involved with Wigney in the robbery, as he had pleaded guilty to an offence of armed robbery arising from the incident. However it was his case that Wigney was not telling the truth as to the appellant’s involvement with the pistol and he argued that the jury could not be satisfied beyond reasonable doubt that the appellant had any knowledge that the weapon was loaded. The appellant did not give evidence at the trial nor had he participated in an interview with police. Therefore there was no account given by the appellant of his involvement in the robbery or his knowledge or otherwise of the fact that Wigney was in possession of a loaded firearm.
In light of the grounds of appeal relied upon by the appellant it is not necessary to review the evidence of the witnesses called by the Crown in any detail. The Crown relied upon the head of murder that used to be called “felony murder” and now sometimes called “constructive murder”. The case for the Crown was based upon an allegation that the act of the accused causing death of the deceased was done by him during or immediately after the commission by the accused, or by some accomplice with him, of a crime punishable by imprisonment for life or 25 years: s 18(1) of the Crimes Act 1900. Here the offence relied upon was armed robbery with a dangerous weapon and in company contrary to s 97(2) of the Crimes Act. There was no dispute that both Wigney and the appellant were committing that offence at the time that the victim was killed.
A “dangerous weapon” for the purposes of s 97(2) of the Crimes Act is defined relevantly as being “a firearm (within the meaning of the Firearms Act 1996)”. “Firearm” is defined in the Firearms Act as follows:
“firearm” means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm.
The Judge during the summing up set out the elements of the offence that the Crown had to prove as follows:
“….(1) it is incumbent on the Crown to prove beyond reasonable doubt that the accused, in company with Mr Wigney , committed a robbery at the Tavener's Hill Hotel; (2) that Mr Wigney was armed with a dangerous weapon, namely a gun, to the knowledge of the accused. That is an element of the offence which carries a penalty of imprisonment for 25 years. For that purpose, and only for that purpose, it does not matter whether the gun was loaded or not; (3) that the death of Mr Jackson was caused by the gun discharged by Mr Wigney; (4), that the discharge of a gun occurred during or immediately after the commission of the armed robbery, and; (5), that the accused had in mind the contingency that the gun might discharge, whether or not it was fired intentionally or whether or not it was fired in furtherance of the common unlawful purpose.”
The trial judge’s statement of the elements of the offence of murder based upon the accused’s participation in a relevant offence that resulted in the death of the deceased was in accordance with the decision of this Court in R v Sharah (1992) 30 NSWLR 292 where at 297E Carruthers J, with the concurrence of the other members of the Court, stated:
As to felony-murder (upon the assumption that the foundational crime was the offence under s98) it was incumbent upon the Crown to prove beyond reasonable doubt:
(i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;
(ii) that during the course of the armed robbery Attard wounded John and during the course of such armed robbery with wounding or immediately thereafter, Attard discharged the gun causing the death of Nick;
(iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose.
The only element in issue at the trial of the appellant was element 5 set out above in the summing up, that is element (iii) in Sharah. To prove that element the Crown substantially relied upon the evidence of Wigney as to the involvement of the accused with the weapon in preparation for the robbery.
In light of the issues raised it is convenient to consider the grounds of appeal in a different order to the way they have been numbered. There is some overlap between the grounds which generally raise two matters said to have caused the trial of the appellant to miscarry: firstly, the appellant’s bad character was directly, or by implication, impermissibly raised beyond that necessary for the jury to determine the issues before it and, secondly, the trial judge misdirected the jury as to the nature of the prosecution case.
Although the first two grounds of appeal are based upon the prosecutor’s address, it seems to me to be appropriate first to deal with the grounds relating to the raising of the appellant’s bad character. This is because the complaint in respect of the prosecutor’s address is that, at least by implication, it asserted that he was a professional armed robber. The full impact of the prosecutor’s address has to be viewed in the context of the evidence, if any, permissibly before the jury that implicated the appellant in criminal conduct other than that which arose from the charge in the indictment and in the context of directions and warnings given by the trial judge in relation to the character of the appellant.
Before considering any of the grounds it is necessary to set out in summary the account given by Wigney of the appellant’s involvement with the weapon used in the robbery and the robbery itself.
Evidence of Wigney
In brief Wigney’s evidence was that the pistol used in the robbery had been purchased from a person named Dushka to whom he and the appellant would sell stolen goods. The appellant and another person were present at the time of the purchase that was made using stolen gold ingots. The weapon came with two bullets, one in the chamber and one in the clip. They were shown that the gun was loaded. Some time later Wigney was staying at the appellant’s flat when he picked the weapon off a dresser in the bedroom of the appellant’s flatmate. As he did so, the pistol discharged. The appellant was present in the flat at the time and heard the discharge.
On 19 July 2001 Wigney was staying at the appellant’s flat. He, the appellant and a man name Riach were driving in the appellant’s vehicle when they decided to rob the Burwood Hotel. The appellant went to steal a vehicle and took with him tools including a slide hammer and screwdriver. He was absent for about 30 minutes and returned with a vehicle. They drove to the hotel but it was closed. They dumped the stolen vehicle and went in the appellant’s vehicle to premises of an acquaintance in Petersham. On their way they saw a hotel open and decided to rob it. When they arrived at Petersham, Riach complained of feeling ill and remained there.
The appellant and Wigney left in the appellant’s vehicle. They parked in a street in order to steal another vehicle to use as a getaway vehicle. There was a bag in the appellant’s Land Rover in which were tools. The pistol was in a compartment used to change the tyres. The clip was separate from the pistol and had bullets inside it. They put the weapon in the bag that also contained a kitchen carving knife. They took the bag, balaclavas, a beanie and sunglasses. They eventually found a vehicle to steal and drove it to the vicinity of the hotel.
After they parked the vehicle, the appellant and Wigney donned their disguises. The following then took place:
“Gary [the appellant] just said that we should wipe down the gun because most of us that had handled it handled it that night and beforehand just to make sure there were no prints on it and the same with the bullets and the magazine.”
The appellant took a rag and wiped the gun. He then put the magazine clip in the pistol. It was decided that Wigney would carry the weapon and the appellant would take the money. The appellant was armed with the kitchen knife in one hand and a garbage bag in the other.
Issues at the trial
As the appellant never gave a version of the events of the robbery to police or the jury, it is necessary to have regard to the course of the trial to understand what facts were in dispute. The Crown in opening its case to the jury in effect recounted the evidence that it expected would be given by Wigney about the appellant’s involvement with the gun, including his presence at the time of purchase, the discharge of the weapon by Wigney in his unit and the appellant wiping the gun and bullets to remove fingerprints. Defence counsel did not open to the jury.
Wigney was cross-examined at length by defence counsel. There were three areas of his evidence that were significant as to the relationship of the appellant and the weapon: firstly that the appellant was co-owner of the weapon and present when it was purchased; secondly, that the pistol was discharged in the appellant’s flat; and, thirdly, that the appellant loaded the weapon shortly before the robbery after wiping it of fingerprints. It was put to Wigney that the appellant was not present when the weapon was purchased but he maintained that he was. Wigney was questioned about the discharge of the weapon in the flat but it was never suggested that the appellant was not present or had no knowledge about that incident. Wigney said that the appellant had been angry with him after the weapon’s discharge. It was of course hotly contested that the appellant had loaded the weapon in the vehicle before the robbery.
During his address to the jury the Crown Prosecutor said the following:
“Now there does not appear to be any issue in relation to the accused having knowledge that Mr Wigney had the pistol because you will remember the examination and cross-examination of Mr Wigney and it was never suggested that the accused was not aware of the pistol. The only thing that was put to him in that regard was in relation to whether or not he knew anything about the bullets and whether or not he was the one who loaded the bullets, otherwise there was no other cross-examination to suggest that he did not know about the weapon.”
Later in the address, having taken the jury through the statement made by Mr Wigney to police, the prosecutor said:
“………..When you go through all the other evidence it is [not ?] going to assist you a great deal because most of the evidence is not in dispute and the only evidence in my submission of significance which is in dispute is who loaded the bullets. Because if the accused loaded the bullets or knew the bullets were there, then he must have contemplated that this thing could be used. If that is the case, then he must be guilty. In my submission there is no alternative.”
The final statement made by the prosecutor to the jury was as follows:
“In my submission when you look at all the evidence you will be satisfied that when Mr Smale went to this place he knew the gun was loaded and he had to have contemplated that it was going to go off and therefore he is guilty of the murder of Mr Jackson.”
Defence counsel in his address said:
“This case is divided equally between Mr Wigney, without whom there is no case, and the balance of the witnesses. The balance of the witnesses you would accept, even if the terror of that night distorts their evidence a little. It has not distorted Mr Wigney’s evidence and he comes before you with the intention of making sure that you would understand that he never intended any harm to Mr Jackson or to any body else and that intention [was] as false then as it is now.”
After addressing on the reliability of Wigney, he said:
“……….there are, in this case, two crimes. The first crime is painfully obvious. There is an armed robbery. My client, on the evidence that you have heard, it would be difficult to assume that he did not know that Mr Wigney didn’t (sic) hold the gun. But, did he know that it was loaded? Where is the evidence? It only comes from Mr Wigney: the only person in this entire show.”
And later:
“Mr Wigney is not a man that you could believe, unless his word is corroborated by some other independent source. Remember, that is the only evidence there is against my client.”
As there is a ground of appeal concerned with the manner in which the Judge left the Crown case to the jury, I will deal with that part of the summing up when considering that ground of appeal.
Prejudicial evidence
Ground 3
There was a miscarriage of justice because inadmissible and unfairly prejudicial matters were revealed to the jury during the course of the trial.
Ground 7
There was a miscarriage of justice because the trial judge should have excluded the evidence of the purchase of the gun used in the offence.
Ground 3 relates to a number of pieces of evidence said to have been irrelevant or unduly prejudicial to the appellant. When considering these grounds of appeal it is important to note that the appellant at his trial was faced with the fact that, from his plea of guilty to the armed robbery offence and the conduct of his case, the jury were aware that he had voluntarily participated in an armed robbery knowing that Wigney had a gun and the appellant being in possession of items of disguise and tools that permitted him to steal a vehicle to be used in the robbery. It is also important to note that the only issue before the jury was whether the Crown could prove that the appellant had in contemplation that the gun, which he knew was in the possession of Wigney, might be discharged; that is that he contemplated that it might be loaded.
In my opinion the fact that evidence was improperly before the jury as to the appellant’s bad character could, in the circumstances of this case, only lead to a miscarriage of justice if there were a reasonable possibility that the jury might have used that evidence to reason that the appellant must have contemplated that the gun might be discharged. It cannot be the case that any prejudicial evidence of whatever nature could possibly have led to a miscarriage simply because it might have indicated that the appellant had committed other offences than those charged against him. It was an admitted fact that he was a person who was prepared to embark on a planned armed robbery, to steal cars for that purpose, and had in his vehicle items such as tools and balaclavas that could be used to commit such an offence.
The appellant complains about the following evidence being before the jury from the examination or cross-examination of Wigney: the gun used in the robbery was purchased with stolen gold ingots belonging to the appellant and others; the gun was purchased by Wigney in the presence of the appellant from “our fence”; the appellant had been involved in “other occasions” involving the gun; the gun had been purchased for protection in “Marrickville and Lebsville”; and that the appellant sold heroin. There is also complaint that Wigney indicated in answering questions that there was information that he was not permitted to reveal and that the jury would have inferred that this information related to other criminal activity of the appellant.
Objection was taken to the evidence of the purchase of the gun on the basis that it was overly prejudicial because that conduct was itself illegal. The Crown wished to lead the evidence to show the connection of the accused to the weapon prior to the robbery. The judge permitted the evidence to be given. The evidence of Wigney was that the appellant was present when the gun was purchased and was a part owner in it.

The evidence of the appellant as a joint owner of the weapon and present when it was inspected and purchased was in my opinion clearly relevant to the jury’s assessment of the evidence of Wigney that the appellant wiped the gun and bullets shortly before the robbery. The jury could also use the fact that he was a part owner of the weapon as one of the circumstances relevant to whether he had in contemplation that the weapon might be loaded at the time of the robbery. If he had no proprietary or other interest in the weapon, it may have been more likely that he would not have been in the position to have any view about whether the weapon was loaded or not.
The fact that the weapon had been in the appellant’s premises prior to the robbery was also relevant and was not the subject of objection. But that evidence alone, while showing some connection of the appellant with the weapon, lacked the significance of the evidence as to his involvement in its purchase. It was not inconsistent with the appellant having no involvement with the weapon before the robbery that it happened to be in his flat at the time that Wigney was also present.
In my opinion the evidence of the purchase of the weapon was of significant probative value. It was well open to the Judge to refuse to reject it by determining, as he did, that in all the facts and circumstances of this particular case its probative value was not outweighed by unfair prejudice: cf s 137 of the Evidence Act 1995. Minds might reasonably differ as to whether evidence should be rejected under s 137 and this Court will not hold that the discretionary judgment that the application of the section involves has been wrongly determined in favour of the Crown unless it was not reasonably open for the trial judge to admit the evidence.
It is clear that, simply because evidence reveals incidentally that an accused has committed some other criminal activity than that arising from the charge, it does not follow that the evidence is thereby rendered inadmissible under s 137 or otherwise. The evidence here was not led to prove any propensity on the part of the appellant and was not to be used for that purpose. I do not see how the jury could use the fact that the appellant was involved in the purchase of the weapon to reason improperly that he knew, or had in contemplation, that the weapon was loaded on the evening of the robbery. Nor, in light of the appellant’s voluntary involvement in an armed robbery, knowing that his co-offender had a weapon and being prepared to steal one or more motor vehicles on that evening, could it be said that the evidence might simply prejudice the jury against the appellant because the purchase of the weapon was illegal. There was no error in the admission of the evidence of the appellant’s involvement in the purchase of the pistol used in the robbery.
Next it is submitted that the evidence that the weapon was purchased with stolen gold ingots indicated that the appellant had been involved in other criminality and, therefore, unduly prejudiced him. This evidence was not the subject of specific objection. Although defence counsel objected to the evidence of the appellant’s involvement in the purchase of the weapon, it did not follow that he should be taken to have objected to every aspect of that evidence. If he saw particular prejudice in the mention of the gold ingots, he should have objected to that particular part of the evidence. The fact that the gold ingots were stolen was a matter introduced by defence counsel in questioning Wigney. The simple fact that this evidence tended to suggest that the appellant may have been involved in some other illegal activity with Wigney, could not itself have resulted in a miscarriage of justice. There being no objection to the evidence, there was no error of law in it being before the jury.
A complaint is now made about Wigney’s evidence of the reason for the purchase of the weapon: for protection “in the southern districts of Marrickville and Lebsville”. It is asserted that the jury would have understood that the appellant was so involved in crime that he needed protection. I do not accept that this is the implication of the evidence that a jury might have adopted. In any event no objection was taken to the evidence and no remedy was sought by discharge of the jury, direction or otherwise. Again there was no error of law involved in the evidence being before the jury and no miscarriage of justice arises.
Similarly there was no objection to the fact that Wigney referred to the weapon being purchased from “our fence”. Nor was any direction sought in relation to the evidence. The obvious reason for the failure of defence counsel to raise any of these matters is that he did not see these details as having any impact at all upon the fairness of the appellant’s trial in light of the issues before the jury and the facts that had been conceded by the appellant by his plea of guilty to the armed robbery offence. With respect that was a sensible, reasonable and appropriate stance to adopt.
These complaints also have to be seen in light of the fact that the jury were being asked by the appellant to reject the evidence of Wigney in respect of accounts given by him that suggested that the appellant would have contemplated that the weapon was loaded. The questioning of Wigney was on the basis that he was not telling the truth in relation to the appellant’s involvement with the weapon. So to some degree it did not matter what Wigney said about the circumstances surrounding the purchase of the weapon because the jury was being asked to disbelieve that evidence. If the jury did not accept that the appellant had been present when the gun was purchased, it did not matter whether stolen gold ingots were used to buy it or not.
The appellant was asserting that Wigney was trying to paint him in a bad light in respect of his involvement in the robbery in order to obtain his sentencing discount. Hence it was alleged that he was tellingly lies about the fact that the appellant was armed with a knife during the robbery. Accordingly the jury would have understood that the defence was asserting that Wigney would falsely implicate the appellant in other criminal activity to the extent that he was permitted to do so in order to carry out his part of the bargain for which he was rewarded by a reduction in the sentences imposed upon him.
This was a matter to which the trial judge referred in the summing up in his warning to the jury as to the evidence of Mr Wigney as a person criminally involved in the offence about which he was giving evidence: see s 165 of the Evidence Act. The warning included the following:
“There are no doubt many reasons why such evidence may be unreliable. Possible reasons include, it is only natural you might think that a witness who might be thought might reasonably have been criminally concerned with events giving rise to the proceedings might want to shift the blame from himself onto others and, to justify his conduct in the process he may construct untruthful stories which may tend to play down his part in the crime and play up the part of others, even going so far as to blame quite innocent people.
Persons reasonably suppose to be involved in the commission of an offence may make false claims as to the involvement of others out of motives of revenge or feeling of dislike or hostility. One motive for giving false evidence is to qualify for a reduction of sentence and there has been some evidence about that in this case and submissions were made to you upon it by [defence counsel].”
And later:
“So you can understand, as [defence counsel] submitted to you, that he did have at least a motive for giving false evidence. Whether he gave false evidence or not is a matter for you to judge. There may be other reasons why false evidence has been given and it is not for the accused to establish the reason or reasons why the witness was lying. Experience has shown that once such a witness has given a version to the police incorporating an accused person, he may feel locked in to that version even if it contained in accuracies or even if it were substantially and true stop
It is entirely a matter for you but in considering the reliability of Mr Wigney’s important evidence regarding the accused’s involvement with the gun and the bullets, you could take into account that these matters were not mentioned in the record of interview of 15 August 2001. Some motives for Mr Wigney lying have been identified in the evidence, such as, perhaps his perception that the accused fled the scene leaving him on his own: the accused lied to him as to the proceeds of the robbery, and, of course, the motive to obtain a discounted sentence.”
A further complaint about the wrongful reception of evidence of the appellant’s bad character is in a somewhat different position. During re-examination of Wigney, the Crown read part of the witness’s interview with police including the following:
“And then you were asked: ‘Do you know who that car is registered to?’ And you said: ‘No it is a drug debt car because Gary sells heroin’.”
Defence counsel sought a discharge of the jury and the Crown indicated that he had not meant to read that part of the interview and had agreed earlier that he would not do so.
The Judge refused to discharge the jury on the basis that, having regard to the issues in the trial and the evidence before the jury, the trial had not been rendered so unfair by the Crown’s mistake that it could not be cured by a direction. Immediately after rejecting the application for a discharge of the jury, the Judge directed the jury as to the purpose of the Crown reading portions of the witness’s statement in answer to questions put to Wigney about the way the statement was taken from him and the inadvertence of the Crown reading out a question and answer that “raised a question of heroin”. The jury were told that “heroin…….has nothing whatsoever to do with this case”. They were also instructed to put out of their minds ”any question of heroin or drug use or otherwise in this case………it has nothing whatever to do with it”.
It was very unfortunate indeed that the Crown read out the question and answer. In many trials such an error would have caused the trial to miscarry. But in my opinion there was no irremediable prejudice to the appellant from this material coming before the jury in the circumstances of this case. As I have already noted, the only issue was whether the appellant contemplated that the pistol might be discharged during the robbery and the jury were being asked to disbelieve Wigney in relation to his allegations against the appellant. In my opinion the jury could not have been affected in determining that question by any suggestion that the appellant might have been a drug supplier. Had the issue, for example, been whether the appellant was involved in the robbery, the evidence would have been highly prejudicial because the jury might have used the evidence to reason that it was more likely that he was involved in that offence. But that material could not have made it more likely that he contemplated that the weapon was loaded and, provided that the judge warned the jury about using the evidence to the general prejudice of the appellant, there was no unfairness resulting from the fact that Wigney alleged he was a drug dealer. I will shortly refer to what the Judge said about the appellant’s character to the jury during the summing up and in my opinion that direction was perfectly adequate to ensure that the jury did not misuse any suggestion of the appellant’s bad character.
Complaint is raised that Wigney indicated during his evidence that there were matters about which he was not allowed to give evidence or that he was limited in what he could say in answer to questions asked of him by defence counsel. The appellant asserts that, from the occasions when Wigney expressed difficulty in answering questions or showed frustration because he was not allowed to talk about certain topics, the jury would have inferred that the information which Wigney was not permitted to reveal was other criminal offences committed by the appellant.
There were numerous occasions when Wigney indicated during cross-examination that he would want to answer the question or allegation put to him in a certain way but felt constrained by what he was permitted to say. Not all of these instances have been the subject of a ground of appeal. It is important therefore to consider the particular instances about which complaint is made not as isolated instances or by giving them greater significance than they might otherwise have received by taking them out of context. As will be explained shortly, the difficulty for the witness arose because of a decision of the trial judge to exclude certain evidence, that decision being extremely favourable to the appellant. The result of the ruling however was to give an air of unreality to the resolution of the issue as to the appellant’s contemplation of whether the weapon might be discharged and the evidence of Wigney that might touch on that issue.
So complaint is made about that part of Wigney’s answer that was struck out by the trial judge in the following exchange:
Q. And did he say anything at the time the bullets were cleaned?
A. Basically that you get fingerprints off bullets and make sure the gun is clean ~~because of other occasions. But I am not allowed to speak about those~~.
Although defence counsel applied for a discharge in respect of that answer, he added,”……….I don’t make the application terribly strongly.” He asked the judge to warn the witness to “answer only the questions”.
It is submitted that the jury would necessarily have taken that answer to imply that the appellant had been involved on other occasions in armed robbery offences where the gun had been used. I do not accept that submission. Had trial counsel thought that was a reasonable interpretation of the words, he would be expected to have taken his objection and his request for a discharge much more strenuously than he did. It seems to me that the jury would have understood that Wigney was not answering the question asked about what the appellant said about cleaning the bullets, but was explaining why the bullets were being cleaned. The answer is not suggesting past activity of the appellant but past activity of the witness. That this would be the interpretation to be given to the answer is confirmed by later cross-examination when Wigney explained that he was taught the necessity of wiping the gun and bullets of fingerprints from persons he had met when “living on the street”.
A difficulty for counsel and for the witness was that the trial judge had ruled as inadmissible evidence that the Crown sought to lead to the effect that a week before this robbery the appellant and Wigney had been involved in another armed robbery with the same weapon and when Wigney had discharged it. As a consequence of that ruling Wigney had been warned not to refer to that matter. Although he was permitted to refer to the discharge of the weapon “in the street”, he was not allowed to give an account of the circumstances in which the weapon discharged on that occasion. Counsel, therefore, had to tread with some caution in questioning the witness about matters that were so closely associated with the prior robbery such as the appellant’s involvement with the gun and bullets. A wide or open-ended question about the appellant’s involvement with the weapon was always going to be fraught with danger. It would have been clear to the jury that there was some restriction imposed upon Wigney in relation to divulging certain information, but they would not in my view have been able to ascertain what that information was or that it pertained to the appellant, let alone that it concerned other criminal offences committed by him.
An example of the difficulty Wigney had in answering questions because of restrictions imposed upon him is the subject of further complaint. When he was being cross-examined about the discount he received as a result of his co-operation, the following took place (T112):
Q. You were told, were you not, that you would get a discount for the plea?
A. For a plea of guilty, yes.
Q. And you were told that you would get a further discount for giving evidence against Mr Smale?
A. Possibly, yes.
Q. What do you mean possibly?
A. You said I got a 40 per cent discount and I never got the 40 per cent discount. I got 29 years with 16.
Q. Please don’t volunteer anything?
A. Yes.
Q. You know you under an obligation not to volunteer information?
A. About certain issues.
With respect the last question asked by counsel was incautious.
No complaint was raised about this answer at the trial and no request was made for a discharge of the jury. Although the appellant now asserts that the jury might have inferred that the information that the witness could not volunteer was other criminal activity of the appellant, I do not believe that there is any reasonable possibility that the jury would draw that conclusion. The exchange came in relation to a reprimand to the witness that he had volunteered information about himself. I do not understand why the jury should think that the information that he was not to volunteer related to the appellant, let alone his criminal activity.
With respect this is an example of counsel on appeal drawing assumptions or inferences about what a jury might conclude outside the atmosphere of the trial and with the benefit of knowledge that the jury did not have. In any event, realistically it would not have been surprising if the jury concluded that the appellant was likely to have been a criminal or at least had committed other criminal offences simply from the admitted facts before them of the appellant’s willingness to be involved in serious criminal conduct on the day in question and his possession of items in his vehicle to carry out that conduct.
In those circumstances what was required was a warning to the jury to concentrate on the issue before them and not to be distracted by evidence of the accused’s character. This is exactly what the trial judge did in the summing up. He directed the jury as follows:
“Evidence has been given in this case which you may think, and it is a matter for you as the judges of the facts, reflects on the accused character. You know that he has formally admitted being involved in armed robberies (sic) at the Tavener's Hill Hotel. If you accept the evidence of Mr Wigney, you also might have accepted that he was prepared to steal cars, that he was present when the pistol was purchased illegally and that he allowed that pistol to be kept in his flat.
If you think that the accused is a man of bad character, there is a danger about which I must warn you and that is, the danger that such evidence will set off in your mind the following prohibited line of reasoning, namely, the evidence shows the accused to be a person of bad character, crimes are more often committed by the bad rather than the good, therefore the accused is like to be guilty of the crime of which he is charged.
The jury is never permitted to use such evidence for the purposes of concluding that the accused person is guilty of the crime with which he is charged simply because he is the sort of person who might be likely to commit that crime. As I say that is a prohibited line of reasoning and my firm direction to you is that you must not allow it enter into your deliberations. This is not a trial about the accused’s character. You must keep firmly in mind that the only issue for you to decide is, are you satisfied beyond reasonable doubt the Crown has proved the accused murdered Mr Jackson according to the principles I will explain.”
No complaint was made about the adequacy of this direction and no further direction was sought at the trial. In the context of the evidence and issues before the jury that direction cured the difficulties that arose in the nature of the evidence that Wigney was to give and the somewhat unrealistic restriction that was placed upon him by the trial judge’s ruling as to the admissibility of the evidence of the other robbery.

I am not persuaded that there was a miscarriage of justice in the circumstances of this particular trial by reason of suggested prejudice arising from Wigney’s evidence in light of the issues before the jury and the Judge’s directions. To the extent that there was no complaint about this material by defence counsel, I would refuse leave under rule 4 of the Criminal Appeal Rules to the appellant to now rely upon them. They were not of such a nature or extent to result in a fundamental defect in the trial and no other miscarriage of justice arose.
Prosecutor’s address
Ground 1
There was a miscarriage of justice because of some impermissible things said to the jury by the Crown Prosecutor in his closing address.
Ground 2
There was a miscarriage of justice because the jury should have been discharged after the Crown Prosecutor made some impermissible statements to the jury in his closing address.
It is trite to observe that the contents of the final address by the Crown Prosecutor may result in a miscarriage of justice. In Livermore v R [2006] NSWCCA 334 this Court considered a number of authorities on the proper role of a prosecutor in addressing a jury. McClelland CJ at CL stated:
[31] This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:
(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor's personal opinions.
[32] In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.
Two matters may also be noted. Firstly, it will rarely be necessary to consider the facts of any decided case to determine whether in the particular case before the Court a miscarriage of justice has occurred. Secondly, it is clear that, simply because the Court may deprecate the conduct of the prosecutor, it does not follow that the conviction should be set aside: see for example Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309. Ultimately the question of whether a miscarriage of justice occurred may depend upon the strength of the prosecution evidence and the risk of the address unfairly tipping the balance in favour of the Crown.
In this case the contention is that the Crown Prosecutor’s address raised material prejudicial to the appellant by suggesting that he was of bad character in general and that he had committed other offences of armed robbery in particular. The Court is asked to consider the contents of the address in light of the complaints made about inadmissible or unduly prejudicial material being placed before the jury that were subject to the grounds of appeal dealt with above.
However, in my opinion the address, although much of it was irrelevant to any issue before the jury, could not have had a detrimental impact upon the fair trial of the appellant. This is so even without having regard to the evidence of the appellant’s bad character legitimately before the jury or what the trial judge said to the jury regarding it. Quite frankly and with all respect to the prosecutor, I do not understand what point the prosecutor was seeking to make in the passages about which complaint is made, and I doubt that the jury would have been in any better position. This was a very simple case with one issue for the jury to consider: did the appellant contemplate that the firearm, which he knew was in the possession of Wigney at the time of the robbery, might be discharged during the course of the robbery? The flourishes of advocacy set out in the following passages were hardly to the point and were liable to distract, rather than assist, the jury.
Having indicated to the jury what was the issue that was in dispute and having noted that members of the jury were not and could not be lawyers, the prosecutor went on:
“But, let's assume you are a lawyer and you are coming to do a case - not in [this] case, any case. Before you went to do that case, you would have learned some law, but probably more importantly you would come to the court with some folders, with some papers in it. You would come with various law books. You would come with a pen, a pad of paper and, most importantly, you would come with yellow Post–It notes and yellow highlighter, because these are the two most important things you need. Because, if I run out of them, Mr McCrudden [defence counsel] would even loan me some of his and if he would run out I would loan him - I would actually give him mine. That is not surprisingly because these are the things you need to be a lawyer.
What do you need to be a robber? I'm not going to compare robbers and lawyers, but it is a profession of some sort and in order to carry out whatever work you do - whether you are a robber, whether you are a lawyer - there are plenty of jokes that combine them, but whatever they are, they are certainly things you need to do your job.
If you are a robber, you need those things of your trade that you use to carry it out. What do you need to be a successful robber? It is good to have a disguise of some sort. It is good to have gloves so you do not leave fingerprints. It is good to have dark clothing to hide you a bit, it is very useful to get a getaway car that cannot be traced to you. If you are going to get a getaway car, you have to have the tools in order to obtain it, such as a slide hammer and screwdriver. If you think there are going to be people involved who are going to be robbed, then you may want something to protect yourself, such as a knife and a gun.
Now, a knife itself is able to be used by itself because it is sharp and, in itself, is intimidating and will protect you if you have it. If you have a gun, then a gun is not going to be of any use to you ultimately if you have to use it for more than just a threat, unless it has bullets in it. So, you might think if you are going to carry out a robbery and you have given it some thought, then you would carry out that robbery with various tools of the trade that you would need.
This is the first passage of the address about which complaint is made. The complaint is not as to the dubious logic of the prosecutor's argument that relies upon the proposition that, for a firearm to be of any use to a robber, it needs to be loaded. Rather the complaint is that the prosecutor has in that passage asserted that the appellant was at the time in the profession of a robber and, therefore, needed, as one of his tools of trade a loaded weapon. The asserted vice is that the prosecutor was implying to the jury that the appellant had a history of committing armed robbery offences and was a professional who knew what was essential to commit such an offence, a loaded pistol.
This part of the address has to be seen in the context of what immediately follows it. The prosecutor went on:
“What do we have in this case? We have Mr Wigney and the accused, Mr Smale. They decide on 18 July, together with a fellow by the name of Andrew Riach, that they are going to do a robbery. They think that a hotel in Burwood is a nice place to do it. So, they go and do the first thing; they get into Mr Smale's car and in Mr Smale's car they have all their tools. They don't have a Post-It note and they don't have the yellow highlighter, but they have beanies, gloves, screwdrivers, slide hammers, a gun, some bullets and the knife. They do not have a getaway car. So, what they do is say, in effect, to Mr Smale; get the getaway car. So, Mr Smale goes off and he takes his tools with him and ultimately he finds himself some sort of getaway car. He brings it back to Mr Riach and Mr Wigney and off they go to their robbery.”
The prosecutor then narrated the facts including that the first hotel chosen was closed, that Mr Riach became sick and had to be left behind and that the appellant was unable to start the getaway car so that Wigney had to start it for him. He then stated:
“Now as to the robbery itself, if you are a person who is a robber and you know that a person has a pistol, I would suggest to you that you would have to contemplate that this pistol might be discharged, because that is why you are taking it, in case you might need it.”
It seems to me that in the passage about which complaint is made the prosecutor was neither intentionally nor inadvertently suggesting that the appellant was a professional robber. He was merely indicating to the jury what items a professional robber would need to carry out successfully a robbery and that these items were in the possession of the accused and Wigney when they decided to do a robbery on the evening in question. In other words, the Crown’s argument was that they had all that was necessary to carry out the robbery in a professional manner and this included a weapon with bullets. As I understand the prosecutor’s argument, it was as follows: to commit a robbery in a professional manner, the robber would need a loaded weapon; the appellant and Wigney were committing the offence in a professional manner and hence they would need a loaded weapon; ergo the appellant must have known the weapon was loaded. The logic may hardly be compelling but the argument says nothing about the character of the appellant.
The prosecutor then reviewed the witnesses and in particular the evidence of Wigney in relation to the obtaining of the gun and his accidentally discharging it in the appellant’s flat. Eventually he arrived at the second passage about which complaint is made. It is as follows:
“Members of the jury, you have to decide the facts. His Honour will give you directions on law. He will tell you are the sole judges of the fact. His Honour won't decide any of the facts for you. When you look at the whole of the case you have to look at this as a business enterprise, that they were out to steal money not because they were altruistic. It wasn't Robin Hood going to collect money for Maid Marion or whoever it might be.
Why? It does not matter. They wanted it for themselves. They did everything you might expect a professional person to do to carry out his professional robbery obligations. That is he had his disguise. He had the gloves. They had the weapons. They have the tools particularly the gun, the bullet and the knife. They had the getaway car which they planned. They then went to the joint and cased the joint and they carried out the robbery as one might expect. They went in and had their jobs allocated.”
The complaint is that, when this passage is considered in light of what the prosecutor had said earlier comparing the profession of robber with that of lawyer, the jury would have understood that the Crown was asserting that the appellant was in the business of committing robberies and undertook that activity as a skilled tradesman. With respect to the prosecutor, I do not understand the relevance of whether the professional robber was altruistic or not, but it seems to me that the prosecutor was merely returning to his thesis that to commit a robbery in a professional manner it was necessary to have a loaded weapon and this robbery was carried out in a professional manner.
Immediately after the Crown address and in the absence of the jury, defence counsel foreshadowed that, after obtaining a copy of the transcript, he might make an application for a discharge of the jury “about whether my client was involved in a trade of committing robberies”.
The next morning the following exchange occurred between defence counsel and the trial judge in the absence of the jury.
“McCrudden:      Your Honour, I foreshadowed yesterday that I would be making an application for the discharge of the jury and if I could direct your Honour to page 3 of my friend’s address to the jury, about line 30.
If I may, with my friends consent, I hand up to your Honour the section I refer to. I have marked it with a blue pen. That is the only reference that I could find in the address to the ‘tools of trade’.
I concede immediately that by itself it does not amount to much, but my notes was that my learned friend used the expression, ‘tools of trade’, when referring to my client and he did, I think, use it on more than one occasion, and that is recorded, and in my submission the jury would have been left with no doubt that my client was in the trade of being an armed robber. It is unfortunate that the final address omitted that, but it is no criticism of the court reporting - -
His Honour:         I'm sorry, Mr McCrudden?
McCrudden:         It is unfortunate that the transcript of my friend's final address omits the other references to the ‘tools of trade’ but they were there.
His Honour:         What is the authority for that? Your notes?
McCrudden:         Yes, it your Honour, nothing more. As I understand it, by itself it does not amount to a great deal, but in conjunction with the others, I make the application.
His Honour:         I decline your application Mr McCrudden.
The application for the discharge of the jury was based upon the belief of defence counsel that the prosecutor had used the term “tools of trade” more than once. He admitted that as recorded in the transcript, there was but one such reference and that “by itself it does not amount to much”. Apparently there was nothing else in the address that caused counsel concern. Simply because the prosecutor might have referred to the appellant having a robber’s “tools of trade” in his possession would not to my mind imply to a jury that the appellant was by profession a robber. On the application as made, it was obviously correct for the trial judge to summarily reject it.
It is unfortunate in the extreme that, if defence counsel thought that there was anything about the address of the prosecutor that suggested that the appellant was a professional armed robber, it was not addressed once the discharge application was refused. It would have been easy for the matter to have been corrected because the simple fact was that the appellant was not a professional armed robber. He had no conviction for robbery either armed or otherwise. The Crown could simply have been asked to concede that fact or to withdraw any suggestion to the contrary that might have arisen from the address. But no step was taken once the discharge application was refused. In any event I do not believe that the address did imply that the appellant had a record for armed robbery offences or that he was a professional robber.
Whether or not the argument of the prosecutor was persuasive or whether it needed to be aided by some of the prosecutor’s adversarial flourishes, such as the reference to Robin Hood and Maid Marion, is a matter for debate. With respect the address was confused and confusing. The overall impression from the manner in which the trial proceeded and the greater part of the address is that the central issue for the jury to determine was whether Wigney was to be believed in his evidence that the appellant wiped the gun and bullets. The reference to professional robbers and their requirements added little or nothing to that question. But I do not believe that the jury would have received any implication from it that the accused was in the profession of an armed robber at the time and, therefore, would have contemplated that the gun in the possession of Wigney at the time of the robbery was loaded. I do not believe that the address of the prosecutor resulted in a miscarriage of justice and I would reject these grounds of appeal. I am of the same view even if the address is considered in light of the complaints made in Ground 3.
Summing Up
Ground 5
There was a miscarriage of justice because proof of one of the elements of the offence depended upon the uncorroborated evidence of the witness Wigney and the trial judge did not give a “Murray” direction.
The evidence of Wigney that the appellant had wiped the gun and the bullet to remove fingerprints was uncorroborated. The argument is that it was essential for the jury to find that the accused knew that the weapon was loaded before he could be found to have in contemplation that it might be discharged. The only evidence that he knew it was loaded came from Wigney. Therefore, so the argument runs, the evidence of Wigney, being essential to the Crown case and uncorroborated, should have been the subject of a Murray direction. I will assume for the purpose of this ground of appeal that the evidence of Wigney was essential to the Crown case.
In Thorne v R [2007] NSWCCA 10 at [43] I described a Murray direction as follows:
“……….This is a direction given where the Crown case is substantially comprised of the evidence of a single witness unsupported by any other evidence. The direction stresses that, before the jury could convict upon the evidence of that witness, they must be satisfied beyond reasonable doubt that the witness is reliable. The direction requires the jury to scrutinise the evidence with care before convicting upon it: R v Murray (1987) 11 NSWLR 12.”
It has never to my knowledge been held that the absence of a Murray direction will necessarily result in a miscarriage of justice. The failure of a judge to give such a direction does not result in a fundamental defect in the trial that goes to the root of the proceedings as the appellant contends. The direction merely emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt.
In the present case the jury were given a warning under s 165 of the Evidence Act as to the potential unreliability of the evidence of Wigney. Nothing more was asked for by defence counsel. This was acknowledged in the written submissions of the appellant, even though in oral argument counsel sought unsuccessfully to construe a request made by defence counsel at the trial, to which I will refer shortly when dealing with the next ground of appeal, into a request for a Murray direction. Under the pressure of argument that submission appears to have been withdrawn.
In my view the directions and warnings given by the trial judge to the jury about the evidence of Wigney generally and its potential unreliability were more than adequate to emphasis the necessity for the jury to scrutinize the evidence of Wigney to ensure that they were satisfied of his reliability before convicting upon his evidence. This was no requirement to give a Murray direction especially as defence counsel did not seek one. The ground should be rejected.
Ground 6
There was a miscarriage of justice because the trial judge did not tell the jury that, before they could find the accused “guilty” of murder, the Crown must prove beyond reasonable doubt that the accused knew that the gun was loaded.
The appellant contends that, before the jury could find that the accused contemplated that the gun might discharge, they had to be satisfied beyond reasonable doubt that he knew the gun was loaded. This it is said was an essential link in the chain of reasoning that allowed the jury to infer that the appellant contemplated the gun might discharge and, therefore, had to be proved beyond reasonable doubt.

I do not accept that it was essential that the jury be satisfied beyond reasonable doubt that the appellant knew the gun was loaded. If the jury were satisfied that he contemplated that the gun might be loaded, they could infer that he contemplated that it might be discharged. In any event, although this was a circumstantial case based upon the jury inferring a contemplation on the part of the appellant of the possibility of the weapon discharging, if that contemplation was based upon the evidence of the appellant cleaning the weapon and the bullets, then there was no necessity for any direction to be given about a circumstantial case. It was inconceivable that, if the appellant loaded the weapon, as Wigney described, he could not have contemplated the possibility of the weapon discharging. That was the whole purpose of him cleaning the bullets to remove fingerprints. This ground should be rejected.
Ground 4
There was a miscarriage of justice because the trial judge told the jury “Mr Wigney was obviously an important witness in the Crown case but the Crown would not accept that Mr Wigney was essential to the Crown case. Indeed the Crown put to you that you could reject every word of what Mr Wigney said and you could still find the accused guilty. To do that you would have to draw some inferences from other evidence and I remind you of what I said earlier to you about drawing inferences”.
The Judge twice told the jury in effect that the Crown case was that they could convict the accused even though they did not accept the evidence of Wigney. The first was at page 44 of the Summing Up in the passage quoted in the ground of appeal. The second occasion occurred toward the end of the Summing Up at page 71 when his Honour said:
“All the Crown must prove is that he contemplated the possibility that the gun might be discharged during or immediately after the armed robbery. The Crown said to you that you can infer from all the evidence, including the evidence of Mr Wigney, but not necessarily in reliance upon the evidence of Mr Wigney, that you would be satisfied beyond reasonable doubt that it must have been the contemplation of the accused otherwise why have the gun.”
At the end of the Summing Up but before the jury retired to consider its verdict defence counsel raised a number of matters with the trial judge. One was as follows:
“…………If the jury find that they cannot accept, or they uncertain, on the evidence of Mr Wigney about the cleaning of the bullets, they would be obliged to acquit, because without that evidence no other inference can be drawn against Mr Smale against (sic) his knowledge………..”
This direction was declined.
As this ground of appeal was argued at the hearing it was to the effect that the Judge had left the Crown case to the jury on a basis that was not argued by the Crown and answered by the appellant. Shortly the point is that it was never the Crown case that the jury could convict the appellant absent the evidence of Wigney. It was submitted that the Crown case was that the accused knew that the weapon was loaded and, therefore, that it might be discharged and for this proposition it relied upon the evidence of Wigney.
It is plain that a miscarriage of justice may occur if a trial judge allows the jury to convict the accused on a case that was not relied upon by the Crown during the course of the trial. In effect to do so may deny the accused procedural fairness by failing to provide him with an opportunity to meet a case upon which the jury might have convicted him.
The classic case where such a miscarriage occurred is R v Solomon [1980] 1 NSWLR 321. There the trial judge left to the jury murder on the basis of reckless indifference to human life whereas the parties had conducted the trial on an understanding that this head of murder did not apply. A majority of this Court held that a miscarriage of justice had arisen in the circumstances of that case. Street CJ, who formed the majority with Moffit P, stated at 327-328:
The Court has been referred to a number of statements regarding the obligation on a trial judge to put to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by counsel for the defence. This is no more and no less than a recognition of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction, and the appellant contends that if the judge takes this upon himself then of necessity he falls into error.
I do not assent to so limited a scope of the judge's function when dealing with the strength, nature and significance of the evidence adduced by the Crown in support of the charge against the accused. Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his duty to ensure a fair trial according to law, considers it necessary to put to the jury, even though not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the trial judge and will be to the forefront in his deciding how far, if at all, to put new considerations to the jury. It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing.
The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused.
Moffit P stated at 332:
Questions can only arise, as they do here, where the Crown has confined its case in some way. The question which then arises is whether it is fair to leave to the jury an issue not raised by, or abandoned by, the Crown. The Crown may confine the issue by defining its case in opening. One way of doing this is by stating that the Crown relies on one only of several alternate ways in law in which the offence may be committed. If the judge then directs the jury on an alternative, not part of the Crown case or abandoned by the Crown, while this will be a direction on the legal issue raised on the pleadings, ie arising from the charge and plea of not guilty, a question may arise whether there has been a miscarriage of justice by reason of the conduct of the trial.
Having considered a number of authorities, the President went on at 334-336 (citations not reproduced):
There is no authority, to which we have been referred, or of which I am aware, which requires the judge to leave to the jury an alternative basis of guilt, not part of the Crown case, or abandoned by it. To do so without the judge being satisfied that there will thereby be no unfairness to the accused would be contrary to the philosophy upon which the administration of the criminal law is based. With respect, the view apparently taken by his Honour, as his rhetorical question indicates, that it was his responsibility to sum up in accordance with the law on the facts as they come out “however … the Crown has conducted its case” is not correct. That a decision open on the crimes pleaded, and upon the evidence led, may be vitiated by unfairness, by reason of the issue open not being properly raised and submitted to the jury is supported by the authority of R v Lincoln. Of course, what I have said depends on the Crown having confined its case in some respect, a conclusion not to be come to merely because only some aspect of the applicable law is referred to in address. In the present case, no such difficulty arises because of the concessions of the Crown.
The most recent example of the problem arising is Robinson v R [2006] NSWCCA 192; 162 A Crim R 88. There the trial judge had left a factual scenario to the jury arising from the evidence that neither of the parties had put forward in their addresses. Johnson J who gave the principal judgment of the Court set out the principles to be applied in considering this issue as follows:
[137] Where a ground of appeal against conviction asserts that a miscarriage of justice has occurred arising from the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown, a number of principles arise for consideration and application.
[138] Firstly, a criminal trial is conducted as adversarial litigation: Whitehorn v R (1983) 152 CLR 657 at 682; Nudd v R (2006) 80 ALJR 614 at 618 [9]. An accusatorial process is involved in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and in which the prosecution must put its case fully and fairly before the accused is called on: R v Carroll (2002) 213 CLR 635 at 643 [21]; R v Ronen (2004) 62 NSWLR 707 at 722–3 [67]; Weiss v R (2005) 80 ALJR 444 at 455 [43].
[139] A cardinal principle of adversarial litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: Nudd at 618 [9].
[140] Secondly, the judge’s role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at para 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case — first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paras 87–93.
[141] Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v R (2000) 105 FCR 182 at 203 [133].
[142] If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148].
[143] Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327–328, 336.
[144] A trial judge who is considering instructing the jury concerning a basis for conviction which is not relied upon by the Crown must consider the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused: Solomon at 328, 333–334, 336; R v Pureau (1990) 19 NSWLR 372 at 377.
[145] Relevant unfairness will ordinarily be looked for in procedural considerations. The judge will be appreciative of the tactical considerations which have governed counsel in the conduct of the case for the accused, including objections to evidence, lines of cross-examination, decisions concerning the tender of material and the content of the final address to the jury on behalf of the accused: Solomon at 328. Where it appears to a presiding judge that the evidence in the case leaves open a finding of guilt on a basis not opened by the Crown, the better course is to raise the matter with counsel prior to final addresses and then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. If it is to be given, the jury will have the benefit of the submissions of both counsel upon the question: Solomon at 336. The accused then will not be deprived of the opportunity of having submissions made on his behalf on that issue: Solomon at 336; GAS at 863, 877–8; R v King at 187; King v R at 432–3; Carr at 285 [49]; R v Whitfield [2002] NSWCCA 501 at para 67.
[146] Unfairness to the accused in the conduct of the trial resulting from the trial judge’s direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paras 55–61; Meher at paras 113–116, 130; Carr at 285 [49].
[147] A miscarriage of justice may arise where the Crown elects to confine the basis for conviction to acceptance of critical Crown witnesses with no alternative and inconsistent factual scenario being advanced by the Crown. In such circumstances, defence counsel will address the jury to answer the Crown’s case theory advanced in the closing address. If then, for the first time, the trial judge advances an alternative factual scenario based upon rejection of significant parts of critical Crown witnesses, the conduct of the trial may have altered. The Crown has been saved from the need to advance bases for conviction which are inconsistent. The defence counsel is deprived of the opportunity of addressing the jury upon the basis that the Crown is advancing inconsistent bases for conviction. The participants in the trial, including the Crown, the accused and the jury will hear, for the first time, the alternative basis for conviction being advanced by the trial judge in the summing up. Unfairness of this type leading to a miscarriage of justice was found to exist in Carr at 285 [49].
[148] Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paras 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393.
[149] Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court’s intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49].
There was a degree of confusion in the Crown’s final address to the jury as to just what the Crown case was, if any, once the major allegation in Wigney’s evidence as to the appellant cleaning the weapon and the bullets just prior to the robbery was put to one side. The Crown never plainly asserted that, if the jury disbelieved the evidence of Wigney about the appellant cleaning the gun and bullets, it could nevertheless convict him of the offence of murder. The reliance upon the submissions about the conduct of a professional robber, as far as I understand the argument, was that the jury would find the appellant and Wigney had what they required to carry out the robbery in a professional manner and this included a loaded gun. The prosecutor’s argument was that a gun was of no use to a robber acting professionally unless the gun was loaded.
The Crown did not in opening to the jury make it clear, other than by reference to the evidence of Wigney, how it intended to prove that the appellant had the necessary contemplation that the weapon might be discharged. The Crown’s opening was nothing more than a recitation of the account that Wigney would give and then an indication to the jury that they would have to determine whether the appellant contemplated that the weapon might be discharged. As recorded, the prosecutor was confused about who it was that loaded the weapon, informing the jury that Wigney had done so while telling the appellant that he was polishing the bullets to get rid of fingerprints. That of course was not Wigney’s evidence.
On one view the prosecutor’s opening failed to identify the basis upon which the Crown was going to seek to prove the appellant’s guilt. The jury, the trial judge and defence counsel could only reasonably infer that the Crown case was based solely upon the totality of the evidence of Wigney. There was not the slightest suggestion that there was a case independent of his evidence. Certainly there was no indication by the Crown that it would be asking the jury to infer the contemplation of the appellant that the weapon might be discharged other than from the fact that he knew it was loaded.

I cannot ascertain from the prosecutor’s address any clear submission that the jury might reject, or fail to accept, the evidence of Wigney that the appellant cleaned the weapon and bullets and yet find the offence proved. The whole of the address is based upon an assumption that the jury will find that the appellant knew that the weapon was loaded. True it is that the prosecutor at one stage made a statement to the jury indicating that, if the appellant knew that the co-offender had a weapon, he would have contemplated that it might be discharged. But this was in the context of having a weapon with bullets because “you would want to use it as a threat” and because Wigney “knew that he had the availability of these bullets in case he would be assailed”. This passage of the address ends with this submission,
“……….if you decide that [the appellant] knew that the bullets were there, then you would have no difficulty whatsoever in determining that he contemplated that this gun might go off and somebody might get hurt.”
If the Crown was seeking to make out a case independent of the evidence of Wigney, it would be expected that it would be made clear to the jury the line of reasoning that it would follow to find that the accused contemplated that the gun might discharge notwithstanding that they were not prepared to accept the fact that the appellant wiped the gun and the bullets. The Crown would be expected to identify with clarity to the jury what evidence they should accept and how that evidence could lead to a finding that the appellant contemplated that the weapon might be loaded and, therefore, might be discharged. But that was a line of reasoning never explained to the jury by the Crown Prosecutor.
The jury might have reasoned that any person who was going to commit an armed robbery on a hotel with a co-offender knowing that this person was armed with a real weapon capable of being discharged must have contemplated the possibility that the weapon might be discharged unless the person had made inquiries to satisfy himself that this was not a real possibility. The jury was entitled to look at the facts that were not disputed by reason of the appellant’s plea of guilty to the robbery offence in a common sense view of the criminal activity in which the appellant was engaged with Wigney. But again this was not an argument placed in any lucid way, if at all, before the jury.
Although the trial judge told the jury twice that the Crown was not necessarily relying upon the evidence of Wigney, I do not with respect understand how he obtained that impression from anything said by the prosecutor unless, as is quite possible, he was confused by the prosecutor’s address. But it was necessary for the Judge to explain to the jury the basis upon which the jury might find the accused guilty on the Crown’s submission if it rejected all or part of Wigney’s evidence.
The Judge told the jury that they could find from the concessions made by defence counsel and the way the trial was conducted the following two facts: firstly, that the appellant participated in the relevant robbery and, secondly, that Wigney had the pistol that was in evidence and the appellant knew this fact. The Judge did not indicate what inferences, if any, might flow from these two accepted facts.
Just before he came to review the evidence of Wigney the Judge told the jury that the Crown did not accept that his evidence was essential. The judge said:
“The Crown put to you that you could reject every word of what Mr Wigney said and you could still find the accused guilty”.
With respect, there was no positive assertion by the Crown in either of his addresses that the jury could take this approach, and I am unable to see that it arose inferentially. It could not literally be correct, because without the evidence of Wigney, the Crown could not prove the knowledge of the appellant that the weapon could be discharged. In any event in my opinion it behoved the Judge to explain to the jury how they could convict the accused even if they disregarded the evidence of Wigney in its entirety. But the Judge never attempted to do this.
He told them that, in order to convict the appellant without the evidence of Wigney, they would have to draw certain inferences and reminded them that they could only draw an inference in a criminal trial if it were the only rational inference to draw. But, with respect, the Judge ought to have indicated to the jury what inferences they were required to draw and from what evidence, if Wigney’s evidence was to be disregarded. This was not a matter that the Crown ever canvassed with the jury. Further, in my opinion, if the jury rejected the evidence of Wigney, it was then truly a circumstantial case and the Judge should have directed the jury in more detail about the circumstances relied upon by the Crown and from which they were asked to draw the inference beyond reasonable doubt that the appellant contemplated that the weapon might discharge.
In reviewing the Crown’s address the Judge said:
“The Crown submitted to you that the critical question is, do you accept that the accused loaded the gun or knew it was loaded, because if he did he must have contemplated that it might be discharged………”
Nowhere does the Judge indicate to the jury how that critical question might be answered if Wigney’s evidence were disregarded.
In reviewing defence counsel’s address, the Judge said:
“Mr McCrudden directed for the most part his submissions to the proposition that you would not believe, in effect you would not believe a word of what Mr Wigney said where he was not corroborated by independent evidence and he submitted that without Mr Wigney’s evidence you would not draw the inference that the Crown would seek you to draw, that is, it would have been in the accused’s contemplation that the gun might be discharged during the course of the robbery”.
But with respect this statement of defence’s counsel’s submission has to be seen against the fact that neither the Crown Prosecutor nor the Judge explained to the jury the basis upon which the inference was to be drawn in the absence of Wigney’s evidence.
As I have indicated, almost the last thing said by the Judge to the jury was to the effect that the Crown was not necessarily relying upon the evidence of Wigney to ask the jury to convict the appellant but nowhere in the summing up indicated the basis upon which the Crown was making that submission. In my opinion the summing up was defective in that it put to the jury a proposition that had never been clearly stated by the Crown: that the jury could reject the evidence of Wigney in its entirety and yet still convict the accused. Further the summing up failed to explain how the jury could convict the accused, if they rejected the evidence of Wigney.
The proviso
It is plain from the principles set out by Johnson J and what was said in the passages quoted from Solomon that, simply because a trial judge leaves to the jury a case or arguments not relied upon by the Crown, it does not follow that there has of necessity been a miscarriage of justice. Nor is it such a defect in the trial that rule 4 cannot apply. Counsel might conceivably overlook a misstatement of the law or some erroneous recital of fact made in a lengthy summing up. But if by putting an argument or a case to the jury that was not put by the Crown some real unfairness has arisen to the accused, it is difficult to imagine that defence counsel would not object. In both Solomon and Robinson complaint was made at the trial.
Here defence counsel never raised any objection about this part of the summing up notwithstanding that he asked the Judge to tell the jury that they could not convict without accepting at least in part the evidence of Wigney. As the Crown Prosecutor at the hearing of this appeal submitted, it is difficult for counsel for the appellant now to assert that the summing up deprived the appellant of a fair trial when defence counsel made no such complaint. Nowhere did defence counsel assert that in some way the appellant had been prejudiced by the Judge putting to the jury that the Crown was contending that they could convict the appellant even if they rejected the evidence of Wigney. Yet he had made a submission to the jury to the contrary and asked the Judge for a direction to the contrary. In those circumstances it is difficult to understand how defence counsel could have let the situation go without any complaint that this was not the Crown’s case or that he had been deprived of the opportunity to meet that case if he truly believed that in some way the appellant was being prejudiced by the manner in which the Crown case was being left to the jury.
The Crown before this Court submitted that there was a tactical advantage in defence counsel not asking the Judge to specify those facts that the jury could rely upon in the absence of the evidence of Wigney because it suited him to run the case on the basis of the evidence of Wigney, bearing in mind the warning that the Judge was required to give under s 165, rather than to meet a case arising from the circumstances and facts other than those arising from Wigney’s evidence.
One of the difficulties in the present case was that on the evidence of Wigney there were only two rounds obtained with the weapon. One round was discharged in the appellant’s unit and the other in the incident the week earlier about which the jury knew only that the round had been discharged in the street. Wigney’s evidence was that he obtained the other rounds from an offence that he committed and in respect of which the appellant was not involved. Therefore, it was the appellant’s case in cross-examination of Wigney that he believed that the rounds in Wigney’s possession had been used. There was some issue about when Wigney obtained the other rounds.
In any event, if the evidence of Wigney were disregarded, the only evidence before the jury was that the appellant was involved in the robbery and knew that Wigney had the weapon that was in evidence at the trial. There was, however, no evidence as to what the appellant knew about that weapon, for example whether it was capable of discharging a live cartridge. There was certainly no evidence that the appellant knew that there was ammunition in the weapon or even available for the weapon. Without the evidence of the appellant’s knowledge of the weapon given by Wigney, it was impossible, in my view, for the jury to conclude beyond reasonable doubt that the appellant contemplated that it might be discharged.
It follows that, in my opinion, it was not open to the jury to convict the appellant in the absence of Wigney’s evidence and, as I have indicated, the Crown never submitted to the jury that it could. The Judge was in error in rejecting defence counsel’s submission requesting such a direction and further in error in directing the jury to the contrary.
But in my opinion these errors are not so fundamental that the proviso could not be applied. This is so even accepting that the proviso might not be applicable where there has been “a significant denial of procedural fairness”: Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [45]. So, if this Court itself concluded from an examination of the whole of the record of the trial, that the appellant was guilty of the offence of murder there would be no miscarriage of justice occasioned by the error of the trial judge: Weiss at [41]. The Court is to take into account both the “natural limitations” that attend such an examination and the fact that the jury did convict the appellant. The purpose of the proviso is “to avoid the needless retrial of criminal proceedings”: Weiss at [47].
I am prepared to approach this matter on the basis that any conviction founded upon the evidence excluding that of Wigney would be unsupportable. I cannot accept, and I do not believe the jury would have accepted, the prosecutor’s submission that the appellant would have known that the weapon was loaded because he would have understood that a loaded firearm was necessary to carry out an offence of this nature, whether it be classed as a professional armed robbery or not. As I have already indicated, without some at least of the evidence of Wigney the Crown could not prove that the appellant knew that the weapon was even capable of discharging: it could have been a replica.
I would be prepared to accept in full the evidence of Wigney notwithstanding the caution with which his evidence was to be approached. Clearly he was himself a criminal who had committed at least two armed robberies to the jury’s knowledge. There is no suggestion that he did not know the firearm was loaded at the time of the robbery and he cocked it in order to discharge it when finding himself in difficulties. Generally, therefore, he was not a witness of credit. Further, he had a reason to fabricate evidence to assist the police in order to secure a discount of his sentences.
But otherwise his evidence appeared to me to be credible and on the transcript at least he was a convincing witness. Apart from the reward of a discount in sentence there was no reason for him to fabricate his evidence and a large part of it was not in dispute. His disputed evidence that the appellant had a knife was supported by accounts of the witnesses at the robbery who gave evidence that the appellant appeared to be armed and made threats to the witnesses of death. In light of the fact that he admitted to taking the weapon, cocking it and firing it, this was hardly a case of him playing down his part in the offence at the expense of the appellant. The appellant gave no account to be placed along side that of Wigney and that might have raised a reasonable doubt about Wigney’s account.
There were minor variances between the account in the witness box and what Wigney had said on other occasions, but they did not to my mind indicate that he was not what he appeared to be so far as his credibility was concerned, a person prepared honestly to give evidence about the involvement of a co-offender in his offence notwithstanding that it was for reward. It was significant to my mind that he had volunteered his participation in the robbery and the killing to police when he was in custody for another offence. The fact that he did not then reveal the identity of the appellant as his co-offender does not seem to me to be of significance in light of the fact that the information he gave them as to a co-offender named Garry was generally consistent with his later account of the involvement of the appellant. There was no dispute as to the presence of the appellant at the robbery or his role generally but only those matters that implicated the appellant as having knowledge that the weapon was loaded. It is not apparent from his evidence that he was down playing any of his criminal activity that he was asked about.
Although I would be satisfied beyond reasonable doubt on the evidence of Wigney that the appellant loaded the weapon before the robbery, I am prepared to put aside those parts of his evidence that were in dispute. If that is so, the appellant knew a relatively short time before the robbery that Wigney had a weapon that was capable of discharging a round because of the accidental discharge of the weapon at the flat. He took part in an armed robbery on commercial premises knowing that Wigney had that weapon but not knowing whether or not he had any ammunition for it on that evening. In those circumstances I am satisfied beyond reasonable doubt that the appellant must have contemplated that the weapon might be loaded and, therefore, might have been discharged during the course of the robbery.
I would dismiss the appeal against conviction.
SENTENCE
Fresh Evidence
In relation to the application for leave to appeal against both the sentence for murder and for armed robbery the appellant sought to rely in this Court upon a report of a psychologist, Mr Watson-Munro, dated 8 October 2007. The report was obviously obtained after the appellant had been sentenced for both offences. The Court rejected the tender of the report indicating that it would give reasons later.
There is no doubt that this Court has power to receive fresh or new evidence in order to show that there has been a miscarriage of justice. The circumstances in which the Court will receive such evidence were recently considered in R v Deng [2007] NSWCCA 216 and there is no need to review them for the purposes of this judgment. But a miscarriage of justice will not arise simply because the legal representatives appearing for the appellant before this Court have a different view as to what evidence should have been placed before the sentencing judge than had those then appearing for the offender or simply because evidence sought to be placed before this Court might have affected the sentencing judge’s discretion: see generally R v Fordham (1997) 98 A Crim R 359 applied in Deng.
The basis upon which the Court was asked to receive the report was that, in light of evidence given by the appellant before the Judge in the sentencing proceedings, it was incompetent of defence counsel to fail to obtain a report of a psychologist, even if it meant that the Judge should have been asked to adjourn the sentencing proceedings pending the receipt of such a report. The issue revolves around whether there should have been expert evidence placed before the sentencing court that the appellant was suffering from a disability for the purposes of s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999. That section relevantly provides:
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
The relevant part of the appellant’s evidence before the Judge was as follows:
Q. I want to take you back to the events which resulted in the death of Mr Jackson; what was your position in relation to drugs at the time?
A. I was on drugs fully,
Q. What does that mean in terms of dosage?
A. I was using drugs every day.
Q. What kind of drugs?
A. Heroin and cocaine.
Q. What effect did this have upon you in appreciating the ordinary things around you?
A. It blurred my visions.
Q. What did that mean in relation to your attitude to ordinary responsibility for yourself and others?
A. I never gave any thought to anything, what it means. I never thought through things and looked at consequences or anything like that.
Q. When you were taking drugs, were you addicted at the time?
A. I was.
Q. How many doses of heroin would you have taken per day?
A. Sometimes 2, sometimes 3.
Q. What effect did this have on you physically and mentally?
A. Tore me apart. Run me into the ground.
Q. In relation to the other drug that you said you were taking?
A. That was the first time I had ever taken cocaine and it just scattered my mind.
The appellant later gave evidence that he had been consuming heroin seriously since 1985. He had at times experienced withdrawal symptoms that led him requiring heroin to the extent of committing crimes to obtain it.
On the basis of this evidence the submission is made that the legal representative for the appellant was incompetent in not seeking to obtain evidence of a psychologist as to the effects of illegal drug usage upon the appellant at the time of the shooting. There is no evidence before the Court from the appellant or the legal representatives acting for him at the time of sentence as to whether there was any discussion about obtaining such a report or why such a report was not obtained. The Court is merely asked to infer incompetence from the asserted fact that there could be no justification in not seeking to put expert evidence before the sentencing judge on the issue of the appellant’s drug use and his consequential criminal responsibility for his actions.
On the face of it there was nothing remarkable in the evidence of the appellant given before the sentencing judge. In effect he was simply stating what any experienced judge would understand to be the consequences of the abuse of illegal drugs: that it clouds a person’s judgment and moral resolve, if any, because of the overwhelming compulsion to obtain the drug. An understanding of the relationship between the abuse of illegal drugs and dishonesty offences is not a matter requiring expert evidence. The relevance of drug abuse as a factor in sentencing is well understood: see for example the discussion in R v Henry (1999) 46 NSWLR 346. Generally speaking, the fact that an offence was committed as a result of the need for illegal drugs is not a matter of mitigation but may in an appropriate case be relevant to the prospects of rehabilitation. In some cases it may be a circumstance of aggravation or indicate that there is a need to protect the community from an offender.

I accept that it is notable that a psychological report was not obtained in this case, but that is only because it seems, from my experience, that almost as a matter of routine a psychological report is placed before a sentencing court regardless of the offence or the personal circumstances of the offender. In many cases the only relevance of such a report is to place before the court material that should more appropriately have been the subject of evidence from the offender. This Court has warned about the uncritical use of such material where an offender has not given evidence.
In this case the offender gave evidence and was in a position to supply the court with any material as to his background and the history of his drug addiction as might have been relevant. There was also a report from a parole officer dealing with the same topics. True it is that a psychologist might have been able to explain the dynamics of the dependence of the appellant on illegal drugs but that was a matter of little significance particularly where, as here, the offender is of middle-age with a lengthy criminal history as a result of a long-standing drug addiction and who was being sentenced for very serious criminal offences.
In order to determine whether to receive the report of the psychologist the Court was invited to consider its contents. The psychologist stated that he was asked to give his opinion as to whether the offender suffered a “disability” for the purpose of s 23A(3)(j) and whether there were special circumstances to reduce the non-parole period. In my view it was not open to the psychologist to express his opinion on either of these matters: whether a particular condition amounts to a disability under s 23A is a question of mixed fact and law and whether there are special circumstances is an issue to be resolved by the sentencing judge.
In any event there is little in the report that addresses the question of whether, even if the appellant may be said to have suffered from a relevant disability, the disability resulted in any diminution of the appellant’s awareness of the consequences of his actions. On the facts in this case and considering the appellant’s participation in the offence, it is difficult to see how the appellant could not have been fully aware of his involvement in an armed robbery and the consequences of that conduct. The report refers only to matters of generality and there is no consideration of this specific issue. Material going to the issue of special circumstances was clearly before the Judge arising from the appellant’s evidence and there was little in the report that would significantly have affected that decision.
The Judge acknowledged in his sentencing remarks that the appellant’s criminal record was related to his drug addiction and, when sentencing for the offence of murder, referred specifically to the evidence given by the appellant as to the effect of his drug usage upon him. He also referred to the appellant’s professed intentions of addressing his drug addiction but, in the light of his record and history of breaches of parole and other orders, his Honour expressed “guarded optimism” as to the appellant’s rehabilitation. In my opinion there is nothing in the psychologist’s report that could impact upon the findings made by the Judge or the sentence imposed.
I was of the opinion there was no basis upon which the Court should receive the report of the psychologist and, therefore, I joined in the order of the Court rejecting the evidence.
It is unnecessary in the light of the rejection of the report to determine whether there was a disability suffered by the appellant within the terms of s 21A(3)(j) because counsel did not seek to support the submission based only upon the evidence before the sentencing judge. But it should not be assumed that the effects of the ingestion of illegal drugs would necessarily give rise to a disability under the section, even if the evidence were that the drug had some permanent or temporary effect upon the offender’s brain or mental processes. Nor does it in any way follow that, simply because the offender does fall within s 21A(3)(j), there must necessarily be a mitigation of the penalty for the offence. In some cases the effect of the voluntary use of an illegal drug upon the offender’s appreciation of the consequences of his conduct may be an aggravating factor where the offender should have anticipated that effect.
Failure to find special circumstances
In sentencing for both the murder and the armed robbery offence the Judge did not find special circumstances. In neither case did he express reasons for making that finding. It was submitted that the Judge was in error in not finding special circumstances in light of the appellant’s drug addiction and his prospects of reform. Reliance was placed upon the decision in R v Bo Too (NSWCCA, unreported, 16 July 1992) to support the submission that the Judge ought to have given reasons for not finding special circumstances. However that decision was disapproved by this Court in R v HQ [2003] NSWCCA 336, in light of what had been decided in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.
In my opinion it was well within the Judge’s discretion to refuse to find special circumstances in order to vary the statutory relationship between the non-parole period and the total term. In any event I would have come to the same conclusion. The simple fact is that, as the overall term of a sentence increases, the less likely is that the presence of facts, which might otherwise amount to special circumstances, will result in an alteration to the statutory proportion between the term and the minimum sentence in order to give the offender the benefit and opportunity for assistance from a longer period of parole supervision. In lengthy sentences, such as those imposed on the appellant, the statutory ratio will almost always result in an adequate period on parole for the offender’s rehabilitation. Unless there is some other reason justifying a reduction of the non-parole period, other than merely as a means of reducing the otherwise appropriate minimum period of custody, there is no reason to find special circumstances.
Sentence manifestly excessive
Apart from seeking to rely upon fresh evidence and the submission about the failure to find special circumstances, there is no other complaint in respect of the sentence for the offence of murder.
It was submitted that the sentence imposed for the armed robbery was manifestly excessive having regard to the objective seriousness of the offence and the legitimate range of sentences for offences of that seriousness.
The appellant had been charged with both the armed robbery offence and the murder. This was notwithstanding that the offence contrary to s 97 of the Crimes Act was an included offence in the charge of murder. The jury would have been entitled to find the accused not guilty of murder but guilty of the s 97 offence on the indictment upon which the appellant was arraigned before them. It would have been open to the appellant to indicate that he was pleading guilty to the armed robbery and invite the jury to bring in a conviction for that offence while finding him not guilty of murder.
The Judge allowed the appellant a discount of 15 per cent for the utilitarian value of the plea of guilty to the armed robbery offence. I find it curious that the appellant should receive a discount for a plea of guilty to an offence that the Crown had to prove in asking the jury to find him guilty of the murder. A specified discount is not generally given on the basis that the appellant is willing to plead guilty to an offence in circumstances where he was convicted after trial of a more serious but related offence. There was never going to be a trial for the armed robbery offence independent of the trial for the offence of murder. The plea of guilty to the armed robbery offence therefore had no utilitarian effect as that concept is normally understood. Usually an offender would receive a discount for the less serious offence only if he were convicted of that offence in circumstances where he had indicated a willingness to plead guilty to that offence but the Crown had not accepted the plea. This has been the approach taken with the offence of manslaughter: see R v Oinonen [1999] NSWCCA 310 and R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510.
Here curiously the appellant also received a discount of the sentence for the offence of murder on the basis that he had indicated his preparedness to plead guilty to the armed robbery offence and hence facilitated the trial for murder. Once again I do not understand that a specific discount is given in a situation where an offender does not contest some aspect of the prosecution case or makes admissions that aid the prosecution. Generally this is a matter that goes to contrition only. However, there were no submissions made before this Court with respect to the quantum or the nature of the discounts and I am prepared to act upon them.
The problem with sentencing for the armed robbery offence in this case was that the appellant had been sentenced for the murder and there were common factual elements between the two offences. This was the situation that was considered in Pearce v The Queen [1998] HCA 57; 194 CLR 610. There the offender had been charged both with an offence of inflicting grievous bodily harm with intent to cause grievous bodily harm and with break and enter a dwelling house and inflicting grievous bodily harm. The victim of the two offences was the same and the grievous bodily harm referred to the same injuries in both charges. Unlike the present case, one of the two offences was not included in the other. Also unlike the present case, in order to punish the whole of the offender’s criminal conduct it was necessary to charge more than one offence.
In Pearce, McHugh, Hayne and Callinan JJ stated:
[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
As I have already pointed out, in the present case there was a complete overlap between the armed robbery offence and the murder. The latter offence could only be proved by proof beyond reasonable doubt of the former. Sentencing for the crime of murder had to take into account that the killing occurred in the commission of the armed robbery offence. That was simply part of the circumstances in which the murder arose. The appellant’s one act, participation in the armed robbery offence, gave rise to both charges: see Pearce at [42].
Neither party during their submissions averted to Pearce or any difficulties to which the charging of both the murder and the armed robbery offence might give rise. It seems to me that the appropriate way now to consider the offence of armed robbery is to sentence for that offence not taking into account any aspect of the offence that resulted in the murder. Therefore, the appellant should be sentenced on the basis that he committed an armed robbery with a dangerous weapon and in company of Wigney but without taking into account that the weapon was loaded, or that the appellant knew that it might be loaded. Certainly the sentence cannot take into account that the weapon was discharged or that as a result the deceased was killed. There was one aspect of the robbery offence that was not relevant on the charge of murder: that as a result of the robbery the appellant stole over $4,000.
Taking into account that the sentence otherwise appropriate for the robbery was reduced by 15 per cent, the Judge must have started with a sentence of about 15 years. In coming to this conclusion the Judge took into account that the firearm was loaded. As I have indicated, this is not a fact that should have been taken into account on the armed robbery offence, as it was fundamental to the charge of murder. A “dangerous weapon” for the purpose of s 97(2) does not have to be loaded and to be guilty of that offence the offender did not have to form any view as to whether the firearm was capable of firing a live round.
The appropriate starting sentence in the circumstances of this particular case and taking into account the overlap with the murder was one of 10 years. A discount of 15 per cent results in a sentence of 8½ years. There are no special circumstances that would warrant reducing the non-parole period.
The orders I propose are as follows:
1.The appeal against conviction of the charge of murder is dismissed.
2. Leave is granted to appeal against sentence in respect of both sentences.
3.The appeal against the sentence for murder is dismissed.
4.(i)           The appeal against the sentence for the armed robbery offence is allowed.
(ii)          The sentence imposed is quashed. In lieu the appellant is sentenced to imprisonment for 8½ years from 18 March 2002.
(iii)         There is to be a non-parole period of 6 years 4 months to expire on 17 July 2008.

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AMENDMENTS:

03/12/2007 - Renumbered paragraphs - Paragraph(s) From para 74

LAST UPDATED: 3 December 2007