Terrance Roy Lawrie v R Nos. SCCRM 92/731 and 92/732 Judgment No. 3879 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 3879

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(1) AND MATHESON(2) JJ

CWDS
Criminal law and procedure - Appeal against conviction - necessity of identification direction - whether direct and circumstantial evidence provided a rational explanation consistent with the appellant's innocence?
Appeal against sentence - structure of multiple sentences - where sentences should be concurrent or cumulative sentences - whether totality of sentences is manifestly excessive.
Sentencing Act s.18a.
R v Arthur D,mitropoulos (unreported) 19/1/92 Judgment No 3625 and R v Leslie David Court (1960) Cr App R 242, distinguished.
R v Suckling (1983) 33 SASR 133 and R v Todd (1982) 2 NSWLR 517, discussed.

HRNG ADELAIDE, 15 February 1993 #DATE 25:3:93
Counsel for appellant:         Mr G F Barrett
Solicitors for appellant:     Aboriginal Legal Rights Movement
Counsel for respondent:         Mr B J Jennings
Solicitors for respondent:     Director Of Public Prosecutions

ORDER
Appeal allowed; sentences substituted.

JUDGE1 LEGOE J In this appeal against conviction and sentence I agree with my brother Matheson J that the appeal against conviction has not been made out. In my opinion the direct and circumstantial evidence was as a whole devoid of any rational explanation consistent with the appellant's innocence Peacock v. R. (1911) 13 CLR 619 and Shepherd v. R. (1990) 170 CLR 573. There was other evidence apart from the one fingerprint on the beer bottle upon which the jury were invited by the prosecution to act and clearly did act before excluding the possibility that the accused left the beer bottle on the beach and it was picked up there by someone else and taken to the house where the offences took place. I agree that the authorities relied upon by the appellant R. v. Arthur Dimitropoulos, Unreported decision of the CCA delivered on 19th September 1992, Judgment No. S3625, and R. v. Leslie David Court (1960) Cr App R 242 are distinguishable and do not assist the appellant on the point in question. In these circumstances an identification direction was not appropriate and the appellant's claim that such a direction should have been given should likewise be rejected. SENTENCE
2. The appellant claims that the multiple sentencing package resulted in a total sentence that was manifestly excessive. The sentencing Judge was faced with the problem of arriving at sentences which were appropriate to two counts of Robbery with Violence (maximum imprisonment for life) and one count of unlawful wounding (maximum five years imprisonment), all such offences being committed on the same night 9 December 1989, and at the same premises, but two different victims who lived at those premises. 3. The existing law and practice relating to the structure of multiple sentences as explained in Mackenzie v. Betts (1980) 23 SASR 307, at 308 approved in The Queen v. Dorning (1981) 27 SASR 481, at 483 and applied in Lowick and Crawford v. McDonald (1988) 46 SASR 537, at 539 clearly called for the exercise of the discretion of the sentencing Judge to make those sentences concurrent. When viewed on that basis it is easier to apply the totality principle which was argued by the appellant. 4. The learned sentencing Judge referred to another principle namely sentencing for "a stale crime long after committing the offence...." Reference was made to R. v. Todd (1982) 2 NSWLR 517, at 519 per Street CJ which this Court applied in R. v. Suckling (1983) 33 SASR 133, at 136. But in both of those cases the offender had been in custody interstate before being returned to the court of the sentencing State and the totality of the sentences served elsewhere in addition to the sentences in the state where a further sentence for other offences committed about the same time were being reviewed. In Todd's case the offender was sentenced on 4th December 1974 in Queensland to eight years with a non-parole period of three years. On 18th May 1979 he was sentenced to ten years on two counts and two years on a third count, all to be served concurrently, with a specified expiry date for the non-parole period. Street CJ said it was not possible to lay down any general principle on these matters. In Suckling's case the prisoner had been sentenced in Victoria in 1977 for offences committed at that time in Victoria. Shortly before he was arrested in Victoria the prisoner had committed a series of offences in this State, but he was not sentenced for the South Australian offences until he was extradited to Mount Gambier in 1983, where he was sentenced for the South Australian offences. This Court had to consider whether the sentencing Judge had "adopted a sufficient 'measure of understanding and flexibility of approach' in the sentencing". The principles in Todd supra were applied. But as the sentences were not made cumulative this Court held that the totality of sentences was not manifestly excessive. 5. In my opinion Todd and Suckling supra, do not really assist this appellant. The sentencing structure in this appeal is set out in the reasons of my brother Matheson J. However, I am clearly of the opinion that in accordance with ordinary principles the sentences should properly have been concurrent sentences. It then becomes a question as to whether the nine years, 2 months total is manifestly excessive. In my opinion it is, and that this Court should interfere, and fix a fresh sentence. 6. In my opinion, the appropriate sentence is 7 years and 2 months which can be fixed by applying Section 18a of the Sentencing Act to the three sentences to be served concurrently without having to fix a separate sentence to each of the concurrent sentences. Applying the usual principles for fixing the non-parole period I am of the opinion that the proper non-parole period for a sentence of 7 years and 2 months would be a minimum of 4 years. I am conscious of the fact that the learned sentencing Judge fixed 48 calendar months non-parole period. That period was presumably fixed in relation to the 62 calendar months head sentence for the separate cumulative sentence for the robbery with violence upon Mr Dawson. By substituting one sentence for all three sentences on a concurrent basis I consider that this Court must fix a non-parole period appropriate to the Section 18a sentence. This court should not increase the period of non-parole in all the circumstances of this case, where there is no Crown appeal. 7. I would order that one head sentence of seven years 2 months be fixed for all three concurrent sentences and that a period of 4 years non-parole be fixed in relation to that one sentence.

JUDGE2 MATHESON J This is an appeal by leave against convictions in the District Court at Adelaide of two counts of robbery with violence and one count of unlawful wounding. The appellant was actually charged with four counts, and it is necessary to set them out:
    "First Count
    Statement of Offence
    Robbery with Violence. (Section 158 of the Criminal Law
    Consolidation Act, 1935).
    Particulars of Offence
    Terence Roy Lawrie on the 9th December, 1989 at Semaphore,
    together with another person, robbed Gerald Cadd of a wallet, 2
    combs, a pair of spectacles and keys, together of the value of
    about $165 and at the time of, or immediately before or
    immediately after such robbery, used personal violence to the
    said Gerald Cadd.
    Second Count
    Statement of Offence
    Robbery with Violence. (Ibid.)
    Particulars of Offence
    Terence Roy Lawrie on the 9th December, 1989 at Semaphore,
    together with another person, robbed Harold Wellington Ellis of
    money in the amount of $7, and a wristwatch of the value of
    about $25 and at the time of, or immediately before or
    immediately after such robbery, used personal violence to the
    said Harold Wellington Ellis
    Third Count
    Statement of Offence
    Unlawful Wounding. (Section 23 of the Criminal Law
    Consolidation Act, 1935).
    Particulars of Offence Terence Roy Lawrie on the 9th December,
    1989 at Semaphore, together with another person, unlawfully and
    maliciously wounded Harold Wellington Ellis.
    Fourth Count
    Statement of Offence
    Robbery with Violence. (Section 158 of the Criminal Law
    Consolidation Act, 1935).
    Particulars of Offence Terence Roy Lawrie on the 9th December,
    1989 at Semaphore, together with another person, robbed Peter
    Lloyd Dawson of money in the amount of $45 and a wristwatch of
    the value of $100 and at the time of, or immediately before or
    immediately after such robbery, used personal violence to the
    said Peter Lloyd Dawson." 2. The appellant was acquitted on the first count, and convicted of the other three counts. On the second count he was sentenced to imprisonment for twelve months. On the third count, he was sentenced to imprisonment for four years, both sentences to be served concurrently with one another and to commence on and from 1 May, 1992 being the date from which he had been in custody on a continuous basis in relation to the matters before the sentencing Judge. On the fourth count, he was sentenced to imprisonment for five years and two months, to be served cumulatively on the sentences imposed on the second and third counts, making a total head sentence of nine years and two months. A non-parole period of four years was fixed to commence on and from l May, 1992. 3. The appeal against conviction is limited to two grounds, namely:
    "(l) the verdicts of the jury are unsafe and unsatisfactory
    and should not be allowed to stand.
    (2) His Honour failed adequately to direct the jury on the
    danger of acting on identification evidence - in this case, the
    evidence of the fingerprint." 4. The appellant has also appealed against the severity of the sentences. 5. At all relevant times, Gerald Cadd, the person named in the first count, lived at a boarding house at 81 The Esplanade, Semaphore, and Harold Wellington Ellis, the person named in the second and third counts lived at a boarding house at 108 The Esplanade, Semaphore. During the afternoon and evening, they had been drinking together at the Semaphore Hotel. They left together at about 11 pm, Ellis taking some stubbies of beer with him. Their accounts differ as to what then happened. Ellis says he sat on a bench near the jetty, and Cadd went on to the shelter on the beach. Cadd says they both went to the shelter where they were set upon by two aboriginal men, one of whom, the prosecution alleged, was the accused. Cadd says that he was "karate-chopped", that he fell to the ground and lost consciousness. When he came to, he had been robbed of the articles referred to in the first count, and Ellis was nowhere to be seen. It was very dark. He hurried home and that was the end of his involvement. Ellis says that two aboriginal men, one of whom, the prosecution alleged was the accused, approached him. He was grabbed and taken down by the hirdy-girdy where it was very dark. They asked him for money, one of them punched him in the right cheek, and they robbed him of the articles referred to in the second count. Ellis told them he had some more money at home and he led them back along the footpath to the house at 108 The Esplanade. They went to the front door and found it locked. They followed Ellis to the back door, entered through a porch and followed him through the lounge and the kitchen to his bedroom. They then proceeded to ransack his bedroom, and attack him with knives with which they cut him badly on his head, arms and legs, necessitating about 100 stitches. One of them tried to strangle him with a sock, and he was hit on the knee with a beer bottle. Salt was tipped over his head. A metal calendar was thrown at him and struck his forehead. The wounds he received were the subject of the third count. An empty Victorian Bitter beer bottle was later found in his room by the police, and it had the finger print of the accused's right index finger on the stem. Ellis said that the two aboriginal men were the same men who attacked him on the foreshore, and that they did not bring any bottles with them to the house. The prosecution case, which the jury must have accepted, was that the accused must have picked up the bottle in the lounge or kitchen of the house. Ellis said he did not keep beer bottles in his room. A trail of blood spots was located by the police running along the footpath of the Esplanade for three blocks to the front gate of No. 108, then to the front door, then down the northern side of the house to and through the rear porch. The police did not test these blood spots, but it seems likely that they were left by Ellis, and resulted from some injury he sustained in the first assault. 6. After assaulting and robbing Ellis, the prosecution alleged that the two aboriginal men went to a room in the same house occupied by Peter Dawson, who was still dressed, but asleep on his bed. He was hit over the head a number of times with a beer bottle and was made to turn over, whereupon he was robbed of the articles referred to in the fourth count. Dawson said his assailants looked like aboriginals. 7. The occupant of another room in the house, Mr. David Hickling, also gave evidence. He was awakened by Dawson knocking on his door and ultimately he opened it. The lights were on and he saw two aboriginal men. He retreated and locked himself in his room. 8. The appellant was not questioned by the police until 19 April, 1991 when he was arrested for drunkenness at Ceduna. He denied the subject offences. He said that he had never seen Cadd or Ellis or Dawson, and had never been to 108 The Esplanade. He said at the time and date alleged, he was with his sister at Taperoo. He was finger printed. The appellant did not dispute that his finger print was on the beer bottle found in Ellis' room. Constable Wright, in his expert evidence about fingerprints, said no two finger prints are identical unless they are made by the same finger. The prosecution asked the jury to infer that the appellant's fingerprint got on the bottle whilst he was in the boarding house. 9. The witnesses Cadd, Ellis, Dawson and Hickling were not asked to identify the accused's photograph in a cardboard folder of photographs until several months after the appellant had been arrested in April, 1991, and understandably the Crown did not seek to rely on any such identification which, when made at all, was unconvincing. 10. The appellant said in evidence that he had come to Adelaide shortly after his wife became pregnant, and he stayed in the Taperoo/Semaphore area until his child was born on 13 December, 1989. The trial Judge summarised his evidence thus:
    "One of his sisters is Donna Morrison. She lives at Taperoo.
    That is where she lived also back in 1989. His mother is named
    Norma Lawrie ... was also in Adelaide at that time back in 1989.
    He told you that she lived anywhere. She had no house of her
    own. She camped around. She stayed at and lived on the beach.
    She drank a lot. She was always looking for a drink, he told
    you. Whilst in Adelaide, the accused stayed mainly with his
    sister at Taperoo but was in the habit of visiting and staying
    with his mother and other relations on the beach at Semaphore.
    They all congregated in that big green shed with a
    slippery-slide thing or roundabout. He attended there always
    with his wife. He did so, on average once or twice a week. He
    never stayed overnight, he told you. He always left at about
    sunset, having been there since about ten or eleven in the
    morning. They all drank and drank a lot, he told you. They
    were drinking down near the shed. They drunk anything and
    everything, including wine and beer, and especially West End
    Export and VB, but really anything. They, of course, had no
    glasses. They were in the habit of drinking straight out from
    bottles. Those bottles would be passed around from person to
    person and, naturally, from hand to hand. He, of course, was
    one of those drinking from shared bottles, he told you, from
    time to time. He knows nothing about the matters for which he is
    now before the court. He did not know and had never seen any of
    the men concerned before his committal, he told you. He had
    never been at the boarding house in question. He was not
    involved with the commission of any of the offences with which
    he now stands charged either directly or indirectly, and either
by himself or together with any other person." 11. I think perhaps his Honour should have mentioned the curious fact that the appellant could remember that he had been drinking on the beach at Semaphore on Friday, 8 December, 1989, on the evening of which day Ellis and Cadd went to the beach. The date of the offences, according to the information, was Saturday, 9 December, 1989. 12. I propose to comment on the second ground first. The appellant's counsel sought to rely upon Domican v. The Queen (1992) 173 CLR 555, but that was an entirely different case where the evidence of the wife of the victim purporting to identify the appellant represented a significant part of the proof of guilt. In allowing the appeal, the High Court in a joint judgment said at pp.561-562:
    "Whatever the defence and however the case is conducted, where
    evidence as to identification represents any significant part of
    the proof of guilt of an offence, the judge must warn the jury
    as to the dangers of convicting on such evidence where its
    reliability is disputed. The terms of the warning need not
    follow any particular formula. But it must be cogent and
    effective. It must be appropriate to the circumstances of the
    case. Consequently, the jury must be instructed 'as to the
    factors which may affect the consideration of (the
    identification) evidence in the circumstances of the particular
    case'. A warning in general terms is insufficient. The
    attention of the jury 'should be drawn to any weaknesses in the
    identification evidence'. Reference to counsel's arguments is
    insufficient. The jury must have the benefit of a direction
    which has the authority of the judge's office behind it. It
    follows that the trial judge should isolate and identify for the
    benefit of the jury any matter of significance which may
    reasonably be regarded as undermining the reliability of the
identification evidence." 13. The prosecutor did not seek to rely in the case under appeal on the sort of positive visual identification evidence under discussion in Domican's case, and did not ask the jury to rely on the descriptions given by Cadd, Ellis, Dawson or Hickling, but merely stressed that they all agreed that two aboriginal men were involved. The trial Judge summarised what identification evidence there was, and said, "You make what you will of that evidence". He might perhaps have gone further and said the prosecution derived no assistance from it, but in that event it might be said that he was usurping the function of the jury. The jury could not possibly have concluded that any of these four witnesses were saying: "Yes, this accused is one of the assailants". His Honour made it abundantly clear several times that if the jury thought it was a reasonable possibility that the appellant's fingerprint got on the bottle in question when drinking from it on the beach, and that someone else took it to the house, they should acquit. I think this ground is misconceived. 14. I consider now the appellant's argument that the verdicts were unsafe and unsatisfactory. His counsel did not pursue an argument on inconsistency, the accused having been acquitted on the first count. The evidence of the witness Cadd did not sit comfortably with that of Ellis, and the prosecutor virtually conceded in his final address that the jury might reasonably entertain a doubt about that count. 15. The Court was referred to Morris v. R. (1987) 163 CLR 454, especially at p 473, and to Palmer v. R. (1992) 106 ALR l, where Mason CJ, Dawson and Gaudron JJ said at p 2 in a joint judgment, and after referring to the case of Morris:

    "That case held that upon some occasions, perhaps relatively
    infrequent, the quality of the prosecution evidence may be such
    that no reasonable jury could have failed to entertain a doubt.
    In such a case - and the present case is clearly one - a court
    of criminal appeal is required to make its own assessment of the
    evidence in order to determine whether the verdict can be
    allowed to stand. Obviously in doing so the court does not have
    the advantage of seeing and hearing the relevant witnesses, but
    it is equipped in assessing the evidence to take into account
    those circumstances which may otherwise affect its nature and
quality and is required to do so." 16. The long summing up here was really quite favourable to the appellant. His Honour gave an exemplary direction on circumstantial evidence, and clearly told the jury to remember "that the one and only thing that connects (the appellant) to the scene of the crime is the finding of his right index fingerprint on a bottle...". I would merely add that there is no dispute that his fingerprint was in such a position as one might expect if the bottle was used as a weapon, and that the appellant is aboriginal. 17. Counsel for the appellant referred the Court to two cases where a Court of Criminal Appeal set aside convictions where the prosecution relied principally if not wholly on fingerprint evidence, namely, R. v. Court (1960) 44 CAR 242 and R. v. Dimitropoulos CCA Unrep.Jt. No. S3625 delivered on 19 September, 1992. I have carefully considered those cases, but in my opinion they are clearly distinguishable in that both turned on the complex issue of possession on the charges of receiving there under consideration. 18. I have carefully considered the quality of the evidence here. As Mr. Jennings QC, counsel for the respondent, submitted, the critical question in the case was whether it was a reasonable possibility that the assailant was someone other than the appellant. That necessarily involved the notion that the appellant's fingerprint had got on the bottle in question somewhere else than at the boarding house (presumably at the foreshore), and that the bottle had then been taken up by the assailant and taken to the house. The evidence of Ellis was that neither man took a bottle to the house. It was plainly open to the jury to accept that evidence. The evidence of Ellis about the assault and robbery at the foreshore was strongly suggestive of the fact that neither man had a bottle at that stage. The jury was entitled on the whole of the evidence to reject as fanciful, and not a reasonable possibility, the possibility that some other aborigine fortuitously picked up a bottle bearing a distinct print of the appellant and took it to the house, that occurring at least some hours after the appellant must have discarded the bottle. 19. I do not overlook several curious features which are difficult to explain on the prosecution case, including the forensic evidence that Dawson's blood could have been on the beer bottle, and the evidence of Ellis - surely mistaken - that he did not leave the blood spots that lead to and inside No. 108 The Esplanade. Matters such as these, and alternative or opposing explanations of them, were put to the jury, and I agree with Mr. Jennings that there was nothing about them that really bespoke the innocence of the appellant. 20. Perhaps the strongest attack made on behalf of the appellant was the suggestion that Ellis may have been mistaken in stating that the two aboriginal men that followed him to the house did not have a beer bottle in their possession. It was dark. He was old (he was 76 at the trial), inebriated and frightened. However, in re-examination, Ellis appeared to be clearly of opinion that they did not bring any bottles up to the house, and the jury must have believed him. 21. I am not persuaded that the verdict was unsafe or unsatisfactory. 22. Turning to the appeal against sentence the learned Judge was clearly correct in regarding these offences as vicious and cowardly. The appellant was 22 years of age at the time of their commission. He had a bad record, mostly as a child. His record as an adult included two convictions for assault. His counsel's criticisms included reference to the fact that the penalty for the third count of unlawful wounding of four years was one year short of the maximum of five years. He argued that this was disproportionate to the penalties for the two counts of robbery with violence, the maximum for which is imprisonment for life. His counsel also said that his Honour could not have had regard to the totality principle. 23. I have reached the conclusion that the total head sentence of nine years and two months was manifestly excessive, and that the appeal against sentence should be allowed. It is therefore necessary for this Court to sentence afresh. I would invoke s.18A of the Criminal Law (Sentencing) Act. I think a total head sentence of seven years and two months would be appropriate, particularly having regard to the fact that all the offences took place on the same night and within a comparatively short space of time, and I would substitute that head sentence. I would not reduce the non-parole period of four years. I would not interfere with the commencement dates.