The Queen v Garrett

[1993] QCA 13

IN THE COURT OF APPEAL  [1993] QCA 13

SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1992

C.A. No. 58 of 1992
C.A. No. 70 of 1992
C.A. No. 92 of 1992
C.A. No. 55 of 1992

THE QUEEN

v.

LEE JAMES GARRETT,

MICHAEL JAMES JAMIESON,
MARCUS CRAIG MAAT,
JASON JOHN NIXON and
KYLIE LEE PARR
(Appellants)

JOINT JUDGMENT - PINCUS AND McPHERSON JJ.A.

Delivered the Fifteenth day of February 1993

These are appeals against conviction and applications for leave to appeal against sentence in a bank robbery case.  Each of the five appellants was charged with and convicted of armed robbery in company.  Three of them, Garrett, Jamieson and Maat, were charged with and convicted of unlawful use of a motor vehicle with a circumstance of aggravation.  The nature of the Crown case is explained in a chronological fashion in the reasons of Demack J., which we have had the advantage of reading.  Counsel took a considerable number of points by way of challenge to the propriety of the convictions, but some of the matters raised in the notices of appeal were abandoned and others were discussed but not pressed.  It appears to be convenient to deal separately with the questions argued on behalf of each appellant, with the exception of some which do not appear to have enough substance to require mention.  The cases will be dealt with in the order in which they were argued.

Maat

Ms Dick argued that the trial judge had not adequately dealt with the question of identification, in relation to the case against Maat.  The judge said that the Crown relied against Maat on identification evidence from two witnesses, Ms McBride and Mr. Miller.  Of these, Ms McBride gave evidence of having seen four males running towards a cream Ford sedan parked in the car park at the rear of the bowling alley mentioned in the reasons of Demack J.  She "only really saw one ..." of the four and she described him as being "blond, sort of medium build, fair skin".  She also said he was "between 18 and 21".  Ms McBride said that person occupied the front passenger seat and that she identified him as Maat at the Southport Magistrates Court on the following day, 13 February 1992.  She later (on 9 March 1991) selected a photo from a photo board as one which "could have been the person she saw, but it wasn't".  The judge gave a fairly elaborate direction concerning the difficulties of identification and urged the jury, in a number of ways, to approach the problem with caution.  His Honour told the jury that they should not attempt to act on identification evidence -

"... unless there is other evidence in the case acceptable to you which implicates that person in the commission of the crime".

His Honour also said, specifically in relation to the case of Maat and that of Jamieson, that the jury should look to see whether -

"... there is other evidence which satisfies you beyond a reasonable doubt that he is implicated in the crime".

If the jury were so satisfied, then the identification evidence would have been otiose.  In that sense, the judge's direction was too favourable to the appellant.

Domican (1992) 66 A.L.J.R. 285 is authority for the view that in this type of case the judge must warn the jury as to the dangers of convicting on identification evidence where its reliability is disputed (287, 288). There can be no serious dispute about compliance with that aspect of Domican; his Honour's direction on that point was strong.  Ms Dick's real complaint was that the judge had not done what she said Domican (decided some months after the summing up was delivered) requires, in that his Honour failed to draw attention, with the authority of his office, to specific weaknesses in the identification evidence (288).  In our opinion, a judge is not necessarily required to express to the jury the opinion that the identification evidence is, in fact, weak, merely because it is capable of being criticised in certain respects.  What the judge has to do is to draw the jury's attention to aspects of the evidence which they might reasonably think affect the reliability of the identification; whether those aspects do in fact undermine it is, of course, a matter for the jury.  Here, in the course of a full and detailed analysis of the identification evidence, the judge did not direct the jury that any aspect of that evidence, with respect to Maat, was in his opinion suspect or especially unreliable.  But his Honour did give the jury the details of evidence of that kind and reminded them what the defence had said about it.  It would, in the circumstances, have been preferable if the judge had not merely have indicated, in this way, the possible weaknesses in the identification evidence, but himself urged the jury to scrutinise those aspects.  The absence of the latter exhortation did not vitiate the summing up; at the least, it seems impossible to say that this supposed deficiency in the summing up could have had any bearing upon the result of the trial.

Ms Dick also argued that the judge erred in permitting a photograph of Maat taken at 110 Moree Street, Stafford between 11 January and 12 February 1991 to be admitted.  The argument was that, while the photograph was not irrelevant, it was insufficiently probative and should have been excluded.

The Crown case was that the Moree Street house was the operational base for the robbery and there was evidence to support that.  Evidence of Maat's presence at that alleged base during the period we have mentioned, while not in itself of much significance, was part of the evidence which the Crown had put forward to include Maat in the group which effected the robbery and, in our opinion, was admissible.

The third submission on behalf of Maat which requires to be dealt with is a complaint that the judge erroneously admitted certain bank bags and deposit slips which were found in the Moree Street house.  It was said, and accurately, that it was not proved that the items admitted were missing from the bank; all that was shown was that the material carried the Commonwealth Bank insignia.  It was the Commonwealth Bank branch at Stafford Road, Stafford which was robbed.

In our opinion, the evidence in question was irrelevant.  The judge told the jury in his summing up that the items had not been demonstrated to be relevant in any particular way and that he could not "see just how they connect".  However, his Honour did not, as he might have done, reverse his initial ruling as to admissibility and exclude the material from the jury's consideration.

The Crown did not, in its counsel's address to the jury, rely on the presence of the bank bags and slips at 110 Moree Street to show that those premises were connected with the robbery.  There was no need to do so; that connection was, as it appears to us, amply proved by other means.  In our opinion, the wrongful admission of the material in question could not have had any effect upon the verdict.

The fourth submission on behalf of Maat with which it is necessary to deal is that the judge should have ordered a separate trial of Maat and, associated with that, that his Honour did not adequately separate out for the jury the evidence against Maat.

These points require some consideration of the nature of the Crown case.  The Crown set out to show that Garrett, Jamieson and Maat were all participants in the robbery itself - Garrett and Maat as having entered the bank and Jamieson as being the driver of a red Commodore sedan in which the robbers made their escape from the bank.  Nixon's alleged connection with the crime, of which more is said below, was not precisely defined.  That of Parr was alleged to have been that she assisted in the acquisition of weapons to carry out the robbery.  It was held in Tripodi (1961) 104 C.L.R. 1 that where a number of people act in pre-concert in the commission of a crime, evidence of acts or words of one of them in furtherance of a common purpose which constitutes or forms an element of the crime becomes admissible against all; the combination or pre-concert to commit the crime implies authority to each to act or speak in furtherance of a common purpose on behalf of the others (7). The principle was reaffirmed in Ahern (1988) 165 C.L.R. 87, in which it was explained that it is for the judge and not the jury to determine whether there is "reasonable independent evidence" of an illegal combination so that "anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others" (95). Had this concept been used in the present case and the necessary ruling obtained from the judge, then the evidence of Parr's participation in the theft of weapons for use in the robbery, for example, could have been admissible on the Tripodi principle, not only as showing her complicity, but as against the other four.  As well, some of the evidence of what was done at the bank, allegedly by Garrett, Jamieson and Maat, could have been admissible against Parr on the same principle, although it was not suggested that she was present there.

The judge explained to the jury that the appellants were jointly charged and in elucidating the operation of s.7 of the Code referred by way of example to an offence committed by people who formed a joint plan or common intention to commit an offence.  During the trial, on a number of occasions, the judge gave rulings designed to restrict the use of evidence so that the jury could consider it as probative against one or some, but not all, of the appellants.

When Sielaff gave evidence in support of the Crown case that Parr assisted in the theft of the weapons which were used in the robbery, the prosecutor said that the evidence was adduced against all the appellants, but (as we understand the passage) insofar as the evidence consisted of Sielaff's conversation with Parr, it was adduced against her alone.  If the Crown had sought to rely on the Tripodi principle, then the conversation might well have been put forward as being relevant against all the appellants.  The prosecution's statement was consistent with the theory on which the trial was run, namely that each appellant was entitled to a "separate trial".  In the course of his summing up, the judge said that -

"... each accused is entitled to a separate trial and you must make a supreme effort to separate the evidence as best you can, with the assistance of counsel and myself, the evidence which pertains to a particular accused".

A little later, his Honour went on to explain this further:

"It is a difficult task, but I think it should be fairly obvious to you what evidence particularly relates to a particular accused and what evidence is of more general character.  Although the accused are jointly charged, each accused is having a separate trial and you must have regard to the evidence relevant to his or her case when coming to a decision of guilt or no guilt ...".

An example of this approach is to be found when, towards the end of the Crown case, reference was made to the two pairs of shoes which were alleged to have been worn by two of the robbers.  Referring to a pair of Reebok shoes, Ms Dick, for Maat, said:

"The shoes were tendered I think in the trial of Maat.  This is as your Honour is aware a separate trial and I object to the prosecutor putting exhibits tenderable in the trial of Jamieson with exhibits tenderable in the trial of Maat ... if the purpose is to make comparisons the two cases are being overlapped.  It cannot happen in a separate trial".

When the Crown prosecutor finished his address to the jury, counsel for Jamieson objected to its content and asked for a "mistrial", on the ground that it had not been made clear in the address "that the trials in which we are involved are separate trials".

In our view, it never became clear which of the numerous items of evidence constituting the Crown case were intended by the judge to be regarded as relevant in relation to, for example, the case against Parr; the respondent's counsel did not before us seriously suggest otherwise.  In the respondent's written submission with respect to Maat it was said that "it was not necessary to specifically identify the items of evidence and exhibits said to be admissible against the appellant".  What the judge appears to have contemplated, when speaking of separate trials, was that so far as practicable each of the accused should have that advantage a separate trial would have brought to him or her, namely that the jury would consider against each accused only that evidence which was legally admissible against him or her.  The question then is whether Maat was entitled to have that which was apparently intended to be done, namely a comprehensive judicial identification of the evidence against him, with the purpose of causing the jury not to consider against him items of evidence admissible only against others.

In our opinion, the case was one in which the judge should have followed the procedure set out in Ahern, since the Crown case was that there was a combination in pursuit of an unlawful object, and that it began with the theft from Sielaff, in which only Parr was shown to have been directly implicated.  The judge should, if satisfied that there was reasonable evidence of that combination, have let in evidence of things done and said by each in pursuit of the unlawful object, against all of the accused.  It was suggested by two of the judges who decided Pektas [1989] V.R. 239 that Ahern is difficult to apply, but attempting to conduct a joint enterprise case without regard to what Ahern has to say also has its difficulties, as the present proceedings show.

In Ahern, the judge let the jury decide whether there was a prima facie case of conspiracy.  This case has in common with Ahern that the judge did not give the ruling with respect to the existence of reasonable evidence which Ahern contemplates; but it differs from that case in that here the judge told the jury that the appellants were each entitled to a "separate trial" and encouraged them, without explaining precisely what that task involved, to ignore in respect of each accused evidence which did not relate to the case against that accused.  In Danieli & Brizzi (1989) 49 A.Crim.R. at 49, the Victorian Court of Criminal Appeal said that:

"As at present advised, although the matter was not argued other than by implication, we are not persuaded that the High Court intended to lay down in Ahern that a trial judge is obliged in every case of pre-concert, whether asked for a ruling or not, to give a formal ruling of his own motion in the absence of some circumstance calling for a ruling".

In Ahern, the Court remarked:

"There can be no question that there was reasonable independent evidence upon which it could be concluded that the applicant participated in the illegal combination, the subject of the charge against him" (105).

In our opinion, the same may be said here.  Had the trial been conducted along Ahern lines, then the judge should have ruled, not that each accused was entitled to a "separate trial", but that the jury might properly consider against each evidence of things done by any of them in pursuit of the common unlawful purpose.  For example, the jury should then have been directed that it might consider evidence directed to show what Maat allegedly did in the bank, when considering the case against Jamieson, and evidence of what both were alleged to have done at the bank, when considering the case against Nixon.

The result was that, in our opinion, the case against Maat was conducted in a way which was rather more favourable to him than the law required.  The suggestion that what others did separately, to further the common purpose, was irrelevant as against Maat was in our opinion incorrect, but could not have damaged Maat's chances of acquittal.

It should be added that there was some evidence of conversations between the accused and the police.  An example is a statement alleged to have been made by Garrett to Whitbread about the clothing he had been wearing on the day of the robbery.  No particular complaint is made on behalf of Maat about evidence of that kind and there is no reason to think that the jury failed to understand that it could be used only against the person alleged to have made the admission.

The subsidiary point with respect to the question of separate trials which was made on behalf of Maat was that, so counsel said, a separate trial would have enabled him to call from other accused evidence favourable to his case. There was, separate trial or not, no impossibility about that. An accused person may call a co-accused; but the co-accused may decline to give evidence: s.8(1), Evidence Act.  The suggestion was that had the appellant Maat obtained a separate trial, he would have obtained a right to call Parr, Jamieson and Nixon to give evidence in his defence and could have forced favourable answers from them.  The details of the evidence which was, according to Ms Dick's instructions, available need not be set out in full.  It is enough to mention, as an example, that Parr was supposedly prepared to say that shoes other than those attributed to Maat were found in the unit (No. 70) in which the police located Maat.  It was accepted that ordinarily where a joint enterprise is sought to be proved there should be a joint trial.  In our opinion, there is no basis for thinking that in deciding to order a separate trial his Honour erred.

The last submission on behalf of Maat was that a direction as to confessional evidence should have been given, of the kind explained by the High Court in McKinney (1991) 171 C.L.R. 468. The Crown case included an oral statement said to have been made by Maat that a pair of shoes linked to the robbery were his. The answer counsel for the respondent made to this submission was that the Crown did not rely wholly or substantially on the evidence of that statement: see McKinney at 476 and the reference there to the condition that -

"... the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody ...".

The trial judge took the view that for that reason, and because the statement attributed to Maat was not a confession in the relevant sense, no McKinney direction was necessary.  There is no need to determine the correctness of the latter ground, for there was substantial evidence implicating Maat apart from the statement in question.

It should be added, however, that during discussion with counsel the judge said, of his summing up as to the conversation in question, that it:

"... contained a number of trenchant remarks about the interview which, in my opinion, were tantamount to warning the jury to scrutinise the interview evidence with care".

Although no criticism was made of that comment, we are obliged to say that the circumstances were such that something at least as strong as the remarks which the judge made, pointing to the risk of fabrication, would have been appropriate.  The police officers' evidence was that there was a very short recorded interview with Maat, shortly after which one of them, Weightman, questioned Maat about shoes which were close by Maat.  It was obvious that this was an important conversation and no reasonable excuse was advanced for the failure electronically to record it.

However, in our opinion, which accords with that of Demack J., Maat's appeal against conviction must fail.

Jamieson

Mr. S. Herbert for Jamieson raised a number of points in his written submission, but pressed only certain of them orally.

First, it was contended that the judge's summing up on the question of identification of Jamieson was inadequate.  An important part of the Crown case against Jamieson was that he was identified by an off-duty police officer, one Flegg, as the driver of the get-away vehicle, the red Commodore referred to above.  What happened, according to the Crown case, was that Flegg saw the robbers enter the bank and for not more than a couple of minutes had the driver, whom he did not previously know, under observation and gave a description of him, in rather general terms.  Two days later, at the Southport Magistrates Court, he recognised the driver as an occupant of the dock and on 8 March 1991, picked out a photograph of Jamieson from a photo board as being the driver.

The judge, as we have pointed out above, gave the jury substantial warnings about the dangers of identification evidence, but Mr. Herbert said they were inadequate.  In our view, in one important respect, the judge's direction was too favourable to Jamieson.  The judge directed the jury, as we understand his Honour's remarks, that identification evidence could only be considered if they were otherwise satisfied that the person in question was implicated in the commission of the crime; we have commented on that above.  Mr. Herbert put forward a number of matters which he said should have been the subject of specific directions; it was said that Flegg did not know Jamieson prior to the occasion on which he supposedly saw him in the get-away car, that the conditions for observation were poor, that Flegg could not recall to whom he reported his identification of the person in the dock with the driver of the get-away vehicle and that there was a considerable gap in time between the identification in Court and the use of the photo board.  Without dealing with the whole list, some of the points taken against the identification appear to us not to have strength.  An example is the suggestion that the conditions for observation were, on the Crown case, poor; Flegg, according to him, had the driver of the get-away vehicle under his observation for a substantial time, and in daylight, across the road and then as the vehicle was driven off, Flegg concentrated on looking at the driver.

The most cogent arguments against the accuracy of Flegg's alleged observations were that the man Flegg identified on 14 February as being the driver of the get-away vehicle was in the dock at that time and that on cross-examination, Flegg gave answers which, it was argued, suggested that he had picked out the photo which was in fact that of Jamieson from the photo board as being the same person as he had seen in the dock.  Mr. Herbert suggested that the process of identification was contrived and that the identification by Flegg was entirely unreliable.

It is necessary to reiterate that the judge gave a general warning about the dangers of identification evidence which was of adequate strength and, indeed, in one important respect went too far, as explained above.  He urged "extreme caution" and "scepticism".  His Honour gave a great deal of detail, with appropriate quotations, of the attack on Flegg's evidence.  He specifically drew attention to some matters which, according to the argument for Jamieson, needed to be considered in respect of the Flegg identification.  It is true that the judge did not say to the jury that perhaps Flegg tended to think that the person in the dock was the driver of the get-away vehicle simply because he was in the dock, but his Honour did make reference to the dangers of dock identification.  Further, his Honour did not say in so many words to the jury that they should consider the likelihood of Flegg's having mistakenly picked Jamieson off the photo board owing to the lapse of time, but what the judge in fact said about photo boards sufficiently, in our opinion, drew attention to the possibility of error.  It may be that if the judge had had the advantage of the decision in Domican, he would have used different language on the question of identification, but his summing up on the point was, in our view, more than fair to Jamieson and should not be held to have vitiated Jamieson's trial.

The second point which Mr. Herbert argued, connected with the first, is that the judge sent the case against Jamieson to the jury on the basis that there was a body of evidence, apart from identification, upon which it could be concluded that Jamieson was guilty.  That supposition seizes upon the direction referred to above, which we have said was too favourable to Jamieson.  It is our opinion that the judge's summing up could not have given the jury the impression that his Honour was of opinion that there was sufficient evidence on which to convict Jamieson, absent of the identification evidence.  There was, in truth, other evidence tending to implicate Jamieson, but no member of the jury who attended to the summing up could have thought that the judge intended to tell them that such evidence was, in itself, enough to convict him.

The third point taken by Mr. Herbert was that there was no attempt made to isolate the case against Jamieson.  In addition to what was said on this point with respect to Maat's appeal, Mr. Herbert contended that the judge put matters to the jury in Jamieson's case which relied on evidence admissible only against his co-accused.  It has to be said that the matters of which complaint was made were identified only by page references.  It appears to us that a fair example is the following passage in the summing up, which appears to be one of those intended to be relied on.

"I should say here and now that in respect of the various units where property was found, including money - in unit 70, is evidence relevant and admissible in relation to the occupants of that particular unit.  Property, including money, found in unit 72 is admissible and relevant in relation to the occupants of that unit.  Do you understand that?  The conversation with Garrett is peculiar to Garrett and is evidence in his case only.  What I want to emphasise is that you cannot use the evidence of property found in unit 70 in relation to unit 72, and vice versa - keep it exclusive to the occupants of the particular unit, if you want to make any use of it at all".

Insofar as this implied that the finding of money identified with the robbery in unit 70 could not be evidence against the occupants of unit 72 - Jamieson having been found in the latter - it was, in our opinion, incorrect and too favourable to Jamieson.  As to the statement that the conversation with Garrett - meaning the police conversation with Garrett - was irrelevant to the case against the other accused, what his Honour said is unobjectionable.

In our opinion, Jamieson's appeal against conviction should fail.

Garrett

Mr. Rafter, for Garrett, discussed a number of points which were not, in the end, pressed.  The matters requiring consideration are three.

Firstly, Mr. Rafter criticised the judge's treatment of the question of identification of Garrett.  The Crown alleged that among the matters implicating Garrett were that he had on a distinctive shirt of an unusual type shown in photographs of the robbery taken by the bank's camera, that Garrett was similar in build to the person depicted as wearing that shirt and that such a shirt was found at the Talisman Units and Garrett admitted it was his.  What Mr. Rafter suggested was that there should have been a Domican direction given with respect of an aspect of this part of the case, namely that Flegg also claimed to have identified a shirt as being one he saw worn in Court.

In our opinion, the giving of such a direction was unnecessary.  It is not the law that whenever a witness, as a subsidiary part of an aspect of the Crown case, says that one object he has seen on one occasion looks the same as another object he has seen on another occasion, special warnings are necessary.  The task of a judge summing up in a case of this sort is indeed a difficult one and it does not appear to us that this Court should be astute to uphold what might be described as an academic or theoretical objection to the directions given.

Mr. Rafter also contended in his careful submissions that what has come to be described as a Sheppard direction should have been given with respect to evidence of identification of shoes and a shirt which, on the Crown case, were associated with Garrett and with one of the robbers; the shirt is of course that already mentioned.  Mr. Rafter's contention was that the evidence on these points was analogous to links in a chain, not strands in a cable and it is, in our opinion, on that point that the argument fails.  The case against Garrett had a number of independent aspects.  There was evidence capable of satisfying the jury that the "hub", to use an expression which counsel on occasions adopted, of the whole affair was the house at Moree Street and there was evidence connecting Garrett with that house.  If one were to treat the evidence relating to the shirt, for example, as a link in a chain, it is not clear what aspect of that part of the case would on the submission for Garrett be required to be proved beyond reasonable doubt.  One might fasten upon Flegg's opinion that the shirt he saw was the same as that later observed in the Magistrates Court or upon the evidence as to the rarity of shirts of that type, based upon the testimony of the witness Molyneux, or upon the evidence associating a shirt of that type with Garrett at the Talisman Units.  In our opinion, the jury was entitled to take all these pieces of evidence into account and the judge should not have told them that their entertaining a doubt as to any one of them necessitated a verdict in favour of Garrett.

Lastly, Mr. Rafter argued, as counsel preceding him had done, that the judge had failed properly to identify the evidence relevant to Garrett's case.  It is unnecessary to say anything further about this point, on which no re-direction was sought before the trial judge, other than that it appeared to be conceded by Mr. Rafter that the judge's direction that money found in unit 72 was admissible against the occupants of unit 72 only was too favourable to Garrett.

Lastly, Mr. Rafter contended that Garrett's conviction was unsafe.  He did not elaborate that orally and, in our view, little can be said in favour of it.  The robber who was, on the Crown case Garrett, had stocking material over his head and was not able to be facially identified at the robbery.  There was, however, plainly evidence upon which the jury could, if they saw fit, act to satisfy themselves to the requisite standard that one of the robbers who went into the bank was Garrett.

In our opinion, Garrett's appeal against conviction should be dismissed.

Nixon

The main point taken by Mr. Long in attacking Nixon's conviction was that it was unsafe.  Mr. Long pointed to the fact that the Crown counsel at the trial described the case against Nixon as "very weak", apparently being prompted by a statement made by one Clayton concerning the sale of a motor car.  On the second day of the trial, the prosecutor explained that Clayton, who sold the second get-away vehicle (a Ford Falcon) had identified the buyer as Nixon.  The prosecutor described the identification as seriously flawed and it was subsequently accepted that it could not be relied on.

In his address, the prosecutor set out the following propositions as relevant to the case against Nixon: that 110 Moree Street was the hub of the robbery, that Nixon was at the Talisman Units after the robbery, that persons and property connected with the robbery were there at the same time and that a palm print of Nixon was found on a bag in which incriminating material was located after the robbery.

In our opinion, the evidence was sufficient to convict Nixon and further the conviction was not unsafe.

The house at 110 Moree Street was the place where Nixon lived at the time of the robbery.  It had connections with the robbery: the Ford Falcon 492-ACG, which was the second get-away car, purchased on 11 February 1991, was bought by two people, one of whom gave her name and address as Kylie Nixon, 110 Moree Street, Stafford.  On the morning of the robbery, the Falcon was parked opposite that house and after the robbery, following an unsuccessful attempt to sell it, was again parked there.  The limousine trip to the Gold Coast started from 110 Moree Street.  Further, the photographs which were tendered showed that in the few weeks before the robbery, participants in it were present at that house.

After the robbery, on 13 February, money which the jury was entitled to find was derived from the robbery was located at 110 Moree Street and, perhaps more importantly, firearms stolen from Sielaff, one of which was shown to have been used in the commission of the offence, were found at 110 Moree Street.

There was ample evidence on which a jury could be satisfied that Nixon's home, 110 Moree Street, was the base from which the robbery was conducted.  This could, of course, occur without Nixon's actually participating in the robbery.  There were, however, two categories of evidence capable of satisfying a rational jury that that possibility should be excluded.  There was an unchallenged finding of a palm print of Nixon in a plastic bag hidden in the ceiling of the 110 Moree Street.  That plastic bag, which contained ammunition, was inside a larger vinyl bag in the ceiling.  The larger bag contained a gun which the jury was, it is not disputed, entitled to find was used in the robbery.  Money found by the police at 110 Moree Street on 13 February, the day after the robbery, included eight bills with serial numbers corresponding to bills delivered to the Stafford bank on 8 February.

The second category of evidence which was capable of being used by the jury to determine whether Nixon was a participant in the robbery was his presence with others of the appellants, found to have taken part in it, at the Talisman Units.  The jury was entitled to be satisfied that shortly after the robbery, Nixon travelled with participants in it from 110 Moree Street to those units and that he was found in unit 70 together with Maat and Parr and thousands of dollars in cash.

It was pointed out to the jury that the argument was available to Nixon that if articles used in the robbery were placed in the ceiling after it was over, then those who placed them there could not, for that act alone, have been guilty of assisting the robbers.  The question which the jury had to determine, if satisfied that Nixon handled the bag we have mentioned and that he took part in what appears to have been a celebratory trip to the Gold Coast, was whether his connection with the robbery was that of a participant or something less.  In our view, the jury was entitled to conclude, to the requisite standard, that he was not only a member of the group which participated in the benefits of the robbery and assisted in concealment of incriminating objects in the ceiling of 110 Moree Street, but was a member of the group which effected the robbery.

It was also argued on behalf of Nixon that he should have been tried separately from Parr because matters emerged in Parr's case which tended to incriminate him, but were not admissible against him.  The argument for Nixon drew attention to the fact that when Sielaff was cross-examined, the suggestion appeared to be made that Nixon was involved in the robbery of the weapons from his house; Sielaff admitted that he had given Nixon's name to the police as somebody they might want to interview in that connection.  Then it was pointed out that Parr's counsel addressed the jury on the basis that there was evidence connecting Nixon with the robbery.  In our opinion, these circumstances are not sufficient to show that the judge's view that there should be a joint trial was incorrect.

In our view, Nixon's appeal against conviction should be dismissed.

Parr

Counsel for Parr contended on the authority of Ancuta [1991] 2 Qd.R. 413 that the Crown had to show not merely that Parr participated in the theft from Sielaff, but that she did so with a view to the commission of an offence of a kind which was in fact committed.

In Director of Public Prosecutions for Northern Ireland v. Maxwell [1978] 1 W.L.R. 1350, the appellant guided a car at night to a place at which occupants of the guided car threw a bomb. The appellant was convicted of doing an act with intent to cause an explosion by a bomb and in possession of a bomb, on the basis that he was an accomplice. The appellant argued that he did not know a bomb was to be used. The appeal was dismissed, but the judges tended to eschew the task of determining whether what the appellant thought might have been done by those he was assisting was in the same category as that which was in fact done - throwing a bomb. Lord Halisham's opinion on the point is perhaps sufficiently representative:

"I would consider that bullet, bomb or incendiary device, indeed most if not all types of terrorist violence, would all constitute offences of the same 'type' within the meaning of R. v. Banbridge [1960] 1 Q.B. 129 ... if an alleged accessory is perfectly well aware that he is participating in one of a limited number of serious crimes and one of these is in fact committed he is liable under the general law as one who aids, abets, counsels or procures that crime ..." (1359).

In Giorgianni (1985) 156 C.L.R. 473, Gibbs C.J. appeared to approve (482) the principle that "... a person can be convicted as a secondary party only if he had knowledge of the essential circumstances" and that was, in substance, the view of Mason J. (as his Honour then was) at 494. The other members of the Court said that:

"There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient ..." (505).

Here, the rifle which was used during the robbery was stolen only five days beforehand.  Further, the appellant was proved to have associated with Nixon and to have been with him and other persons involved in the robbery on the very day it occurred.  She was also, of course, in the Talisman Units.  There was no direct evidence that the theft from Sielaff was carried out with a view to robbing the Stafford Road branch of the Commonwealth Bank, nor indeed for any particular purpose. But in our opinion the inference that Parr assisted in the theft from Sielaff for the purpose of the commission of such a crime as was in fact committed was well open.

Mr. Carmody also contended that the judge made an error in summing up, in that his Honour did not give Parr the benefit of Sheppard directions.  Counsel argued that there were three intermediate conclusions, each which had to be proved beyond reasonable doubt: that the appellant's co-accused were responsible for the theft from Sielaff and also for the robbery; that at the time of the theft they intended to use the rifles to commit the robbery; and last, that the appellant knew of the intended use of the rifles.

At the trial, counsel asked the judge to re-direct by telling the jury that the Crown had to prove that the rifle found at 110 Moree Street was used in the robbery and that Parr had a criminal connection with the burglar and the burglar with the robbery.  The judge refused the application, apparently on the basis that his Honour had sufficiently indicated to the jury what their task was.

The Crown relied, as against Parr, not merely on the events involving Sielaff, but upon Parr's connection with the Moree Street house, her participation in the trip from Moree Street to the Talisman Units on the night of the robbery, her having given a false name at the units and paid a substantial sum in cash for accommodation there and that a large amount of cash was found close by her bed.  The judge took the view that it was not appropriate to try to identify for the jury intermediate facts which had to be proved beyond reasonable doubt and, in our opinion, his Honour was correct.

The appeal by Parr against conviction should be dismissed.

With respect to sentence, we find it necessary to add nothing to what has been said in Demack J.'s reasons.

In our opinion, the appeals against conviction and applications for leave to appeal against sentence should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1992

C.A. No. 58 of 1992
C.A. No. 70 of 1992
C.A. No. 92 of 1992
C.A. No. 55 of 1992

THE QUEEN

v.

LEE JAMES GARRETT,

MICHAEL JAMES JAMIESON,
MARCUS CRAIG MAAT,

JASON JOHN NIXON and
KYLIE LEE PARR
(Appellants)

JUDGMENT - DEMACK J.

Delivered the Fifteenth day of February 1993

Sometime between 12.45 pm and 1.15 pm on 12 February 1991, a red Commodore sedan 094-OKV was stolen from the Brookside Shopping Centre Car Park.  At about 2.30 pm that day, the same red Commodore parked outside the Stafford Branch of the Commonwealth Bank ("the Bank").  Three men with stocking masks over their faces alighted from the car and entered the Bank.  A fourth man remained in the car in the driver's seat.  After robbing the Bank staff of more than $20,000, the men drove off in the red Commodore.

On 13 February 1991, each of the appellants was charged with that robbery, and Garrett, Jamieson and Maat were charged with the unlawful use of the red Commodore.

On 22 January 1992, the five appellants were put into the charge of a jury.  The trial judge, McGuire D.C.J. had previously heard legal argument extending over 2 days.  The summing-up commenced at 4.17 pm on 13 February 1992, the eighteenth day of the trial.  The jury retired to consider its verdict at 3.10 pm on 17 February 1992, the twentieth day of the trial, and returned verdicts of guilty in respect of all charges at 4.18 pm on 18 February 1992.  The appellants appeal against their convictions.

The Crown case was a circumstantial one and it is helpful to set out a chronology which, on the evidence, the jury could have accepted.

Chronology
Late January-

Early February:           Three rifles including a Parker Hale .270, together with ammunition, and other items were stolen from a house owned by Neville Bevan Sielaff ("Sielaff") (T.94-112)

8 February 1991:         $20,000 in new $20 notes received at the Bank.

11 February 1991:      A young man and a young woman purchase a second-hand, yellow Ford Falcon 492-ACG, from Clayton's Cars, Woodridge; the young woman's name an address is given as Kylie Nixon, 110 Moree Street, Stafford (T.345-9)

12 February 1991

7.26 am:Falcon 492-ACG parked in Moree Street opposite the house at 110.  (T.409)

12.45 - 1.15 pm:         Red Commodore 094-OKV stolen.

2.30 - 2.35 pm:           094-OKV outside Bank, three masked men enter Bank, one armed with sawn-off Parker Hale rifle, money taken, drive away in 094-OKV.

2.40 pm:094-OKV stopped in Niepee Street behind Kedron Bowling Alley, four men alight from 094-OKV and enter a beige or cream Ford Falcon.

2.50 pm:Police take possession of 094-OKV.

3.00 pm:A woman calls Best Deal Car Co. wanting to sell a Ford Falcon.

4.30 pm:Two women attend Best Deal Car Co. and offer to sell or trade 492-ACG.  Offer declined.

6.44 pm:492-ACG driven from Best Deal Car Co. to MacDonalds Kelvin Grove.

7.30 pm:492-ACG arrives 110 Moree Street from MacDonalds.

Time unspecified:         A woman calls "Superior Tours" and books a stretch limousine to take 7 people from 110 Moree Street at 11.15 pm to Jupiters Casino.

After 11 pm:               Seven people from 110 Moree Street enter white stretch limousine and are driven to Talisman Units opposite Jupiters Casino.

13 February 1991

12.45 am:A woman giving her name as Sheridan completes registration form for Unit 70, Talisman Units, for three adults, till 19 February 1991, $600.00 paid in cash; another woman giving her name as Simpson makes similar booking for Unit 72, three adults, $300 cash.

11 am:Police Officers simultaneously enter Units 70 and 72 and the premises at 110 Moree Street.  Nixon, Parr and Maat are found in Unit 70.  Jamieson and Garrett are found in Unit 72, together with two women, Ryan and McKay.

The search of Units 70 and 72 located a pair of Reebok shoes and a pair of Nike shoes the sole prints of which matched prints left by two of the robbers on a counter at the Bank.  Over $2,000 was found in Unit 70 and $3,000 in Unit 72.

The search of 110 Moree Street located a sawn-off Parker Hale .27 rifle in a black vinyl bag in the ceiling.  The portion of the barrel and butt which had been sawn-off was found in the back yard.  Sielaff identified the rifle as the one stolen from his home.  Two other rifles, one sawn-off, were also found at 110 Moree Street and identified by Sielaff as his.  The sawn-off barrel and butt from that second rifle were also in the back yard.  Almost $1,000 was found in the premises and 8 $20 notes bore serial numbers from the consignment of notes received at the Bank on 8 February 1991.

From this terse chronology, the inference can be drawn beyond reasonable doubt that some of the people found in Units 70 and 72 were involved in the robbery.  The persistent presence of 492-ACG at 110 Moree Street before and after the time of the robbery, the Parker Hale rifle and the identifiable money from the Bank are cogent evidence that 110 Moree Street was an operations centre for the robbery.  At 110 Moree Street, the weapon used in the robbery prepared and then hidden, the getaway car was seen and identifiable money was found.  The link between 110 Moree Street and Units 70 and 72 is fixed by the journey in the stretch limousine.

The significant question at the trial was which of the occupants of Units 70 and 72 were involved.  Only five were charged, and the Crown did not allege that the robber armed with the Parker Hale was one of the accused.

The specific evidence of the appellants' involvement

During the search at 110 Moree Street an undeveloped roll of film was found.  When developed it showed snap-shots of people including each of the accused except Garrett.  The photos were taken at 110 Moree Street between 11 January and 13 February 1991.  110 Moree Street was Nixon's family home.  The photographs did not reveal any criminal behaviour, but showed that Jamieson, Maat, Nixon and Parr had some association with 110 Moree Street during the period when the Parker Hale rifle was cut down and the getaway car was purchased and brought at 110 Moree Street.  Each of these events is of a kind to excite interest and attention among those frequenting 110 Moree Street.

In addition to that specific evidence, the jury had to consider the following evidence in respect of the appellants.

Garrett
In the course of an interview with police officers Garrett said that he had been wearing a shirt on 12 February 1991 which bore the initials XTG.  The photos taken by the Bank video camera showed that one of the robbers wore such a shirt.  Garrett also said he had worn the Reebok shoes.
Jamieson

An off-duty police officer, Flegg, was parked opposite the Bank at 2.35 pm on 12 February 1991 and observed the robbery.  He identified the driver who remained in the red Commodore as Jamieson.
Maat
Police evidence linked Maat with the Nike shoes and he was identified as one of the men behind the Kedron Bowling Alley.

Nixon
A Thrifty Hardware plastic bag containing rounds of ammunition was found in the black vinyl bag that also contained the Parker Hale rifle, another sawn-off rifle, a police scanner, a Toyworld plastic bag containing ammunition and a screwdriver.  The Thrifty Hardware bag bore a palm print of Nixon.
Parr

On the night that Sielaff's house was burgled and the rifles stolen, Parr came to his house and said she wanted to talk to him, but did not feel right talking at his house.  They rode off in the rain on Sielaff's motor cycle and went to a hotel.  When they returned to Sielaff's house over an hour and a half later, Parr asked him to drive slowly past the house and then to drop her off a kilometre and a half away.  When Sielaff returned home he found the three rifles, including the Parker Hale, had been stolen.
The grounds of appeal
Separate Trials
The question of separate trials was argued before the jury was empanelled.  McGuire D.C.J. rejected the applications.  The issue was raised again from time to time during the trial, specifically, on behalf of Maat, at the close of the Crown case.  On appeal, the arguments, except on behalf of Maat, centred on alleged deficiencies in the summing-up.  Particular complaint was made about the following passage (p.1151):-

"The five accused are jointly charged with robbery.  I am deliberately deferring the unlawful use charge until later in the summing-up, so my remarks generally refer to the robbery.  The five accused are charged with armed robbery in company.  The fact that they are jointly charged does not mean that each accused is not entitled to a separate trial - indeed, each accused is entitled to a separate trial and you must make a supreme effort to separate the evidence as best you can, with the assistance of counsel and myself, the evidence which pertains to a particular accused.  Some of the evidence in the case is general.  It is common to all.  There is background evidence.  It is necessary to have that in a circumstantial case like this.  Some of the evidence relates particularly to a particular accused.  In the course of my narration of the evidence I would hope to be able to separate the evidence, as best I can.  It is a difficult task, but I think it should be fairly obvious to you what evidence particularly relates to a particular accused and what evidence is of a more general character.  Although the accused are jointly charged, each accused is having a separate trial and you must have regard to the evidence relevant to his or her case when coming to a decision of guilt or no guilt, because, as I say you are required to consider the evidence relevant to each case separately".

If that were all that the experienced District Court Judge had said then there might be substance in the submission that he failed to distinguish between the evidence which was only admissible against the appellants individually.  A reading of the summing-up shows that in the following 200 pages clear reference was frequently made to the pieces of evidence which could only be used against the appellants individually.

At p.1161, he began to give what he called a general overview of the evidence which isolated some thirty-four pieces of evidence.  He said at the beginning that each did not necessarily apply to each accused and as he dealt with each piece, he specified the pieces that related only to a particular accused.

After that overview, he referred in detail to the evidence, frequently reading passages from both evidence in chief and cross examination, keeping before the jury the issues enlivened by defence counsel.  There is frequent reference to pieces of evidence admissible only against particular accused.  At the end of that, he said (at p.1296):

"I did at the beginning of this long summing-up try to state in summary form what the Crown case was in its entirety.  I called it an overview of the Crown case - you will remember that - and I warned you that that was the totality of the Crown case and that it had to be broken up into those parts which were relevant to particular accused.  And, in the course of evidence, I have made every reasonable endeavour - it is very difficult but I have made every reasonable endeavour - to inform you of what evidence is relevant to a particular accused.  Some is general to all parties and some is relevant and admissible only in the case of a particular accused".

By those remarks, McGuire D.C.J. has not suggested to the jury that he has failed to give them adequate directions about the evidence which is only admissible in the case of an individual accused person.  Rather he has reminded them that there was much evidence that he had not referred to and that they should consider it in the way he had done in respect of the specific matters he dealt with.

He then proceeded to summarise counsels' addresses.

This was a case of a joint enterprise and the participants alleged to have been involved should have been tried together.  Once that decision was made, McGuire D.C.J. addressed the jury before the Crown opening in these words (at p.92):-

"Ladies and gentlemen, before I invite the Crown prosecutor to open the Crown case to you there are one or two things I should tell you about it.  As you are already aware, this case involves five accused persons.  This is a joint trial, but notwithstanding that it is a joint trial each accused is entitled to a separate trial within that joint trial.  Some of the evidence which the Crown will be leading will be common to all five cases, some will be relevant to one or several cases only.  Evidence admissible against a particular accused and not admissible against the other accused is evidence in the case of that accused only.  These are fairly complicated rules of evidence I am trying to inform you about, but as the evidence unravels, and with the assistance of counsel, particularly the Crown Prosecutor, I think it will become apparent to you over a period of time just how this rule works.  Now, you will be required to consider the case of each accused as a separate case and to render a separate verdict in respect of it".

Thereafter, both the trial judge and all counsel made considerable efforts to keep before the jury its duty to try each accused separately.  For example, on the fifteenth day of the trial, Mr Feeney, the prosecutor, began to tender the photographs which had been developed from the roll of film found at 110 Moree Street.  Specific photos were tendered against specific accused until an objection was taken by Miss Dick, for Maat, to "putting exhibits tenderable in the trial of Jamieson with exhibits tenderable in the trial of Maat" (T.954).  After a little debate, the jury was asked to withdraw, but that incident, by no means a solitary one, must have reinforced what had been happening during the trial and what was dealt with so fully in the summing-up, namely that the case against each accused must be considered separately.  There is no substance in these grounds of appeal.

The argument advanced on behalf of Maat involved an additional consideration.  Maat sought a separate trial so that he could call some of his co-accused to show that the Nike shoes were not his.  There is no evidence before this Court that such evidence is available.  The evidence which associated Maat with the Nike shoes was closely examined at the trial.  The police officers who entered Unit 70 gave evidence which contained conflicts about the Nike shoes.  A video made by a television news crew, which filmed the arrival of the police and the accused at the Southport Courthouse, was produced and shown to the jury.  On one view, this supported the line of evidence which associated Maat with the Nike shoes.  Further, in the course of her interview with the police, Parr said that Nixon and Maat sometimes swapped shoes.  The jury was told to have regard to that evidence in considering Maat's case.  There was therefore before the jury, a body of evidence which could leave them with a doubt about the reliability of the evidence associating Maat with the Nike shoes.  It cannot be said that the refusal to allow Maat a separate trial denied him the opportunity of adequately defending himself.  While not required to give evidence himself, he was not precluded from doing so.  He has not been the victim of a miscarriage of justice because he was denied a separate trial.

Identification evidence
Two witnesses particularly gave evidence in the nature of identification evidence which was attacked at the trial and on appeal.  Mr Flegg, the off-duty police officer and Miss McBride were both interviewed by police on 12 February.  Mr Flegg saw the robbery and Miss McBride was behind the Kedron Bowling Alley when the four men left the red Commodore and entered the Falcon.  Next day, both people were taken down to the Southport Magistrates Court.  They remained in the courtroom for more than an hour during which time thirty or forty people came and went.  Each purported to identify one of the people they saw in the dock during that period as one of the people they had seen the day before.  Flegg identified Jamieson, and McBride identified Maat.

This was not what is often called a dock identification, where one or more people facing a trial are identified for the first time by a witness.  In the bustle of the Southport Magistrates Court, it was as close to a line up as might reasonably be organised.  No hint was given as to which of the people coming into the courtroom was a suspect.  The identification was made shortly after the event.

A very full direction about the risks inherent in identification evidence was given and the evidence of Flegg and McBride was referred to in detail.  Over 30 pages of the summing-up was involved with this point.  Then McGuire D.C.J. referred to the evidence of the used car salesman Clayton, who had sold 492-ACG on 11 February 1991.  He was convinced he had sold the vehicle to Nixon, an identification the Crown conceded was wrong.  This was used in the summing-up to highlight the dangers inherent in identification evidence.

Two major attacks were made on the identification evidence.  First, it was argued that the identification at the Southport Magistrates Court was in the nature of a dock identification and that it should have been rejected.  This submission cannot be sustained on the facts.  As has been said it was much more akin to an identification parade than a dock identification.  Second, it was submitted that it was a misdirection to say that the jury could take account of other evidence in considering the identification evidence.  An example of such a direction is found at p. 1279:-

"You should not attempt to act on that identification unless there is other evidence in the case acceptable to you which implicates that person in the commission of the crime.

I would suggest to you that you start with a skeptical mind.  Make that the starting point.  Treat it with skepticism.  Then look to see whether in the case of Maat, and the case of Jamieson, there is other evidence which satisfies you beyond a reasonable doubt that he is implicated in the crime."

In one sense that direction is too favourable to the appellants.  However, in the context of the trial it does not amount to an error.  Thus far, no reference has been made to the evidence of Mr Miller, who drove the stretch limousine from 110 Moree Street to the Talisman Units.  He purported to identify Maat as one of the passengers.  He was shown photographs in March 1991.  It would be a pointless exercise to look at that piece of evidence on its own.  Police officers followed the limousine on its journey and supported Miller's evidence that it did not stop during that journey.  Police observed a number of men and women alight from the limousine and enter the foyer of the Talisman Units and the manager of the units booked seven people into Units 70 and 72.  In such circumstances, Miller's purported identification could not be looked at in isolation.  It was just another piece of evidence in the chain of circumstances involving Maat.

The evidence of Flegg and McBride was more weighty, if accepted, but again it was only one of many circumstances tending to prove guilt.  However, when the passage quoted is looked at, the jury is not told to use the other circumstances to bolster doubtful evidence.  Rather they are told to treat the identification evidence with skepticism and to look for other evidence that satisfied them beyond reasonable doubt.  This is too favourable to the appellants and does not amount to a miscarriage of justice.

A McKinney Point

Part of the evidence linking Maat to the Nike shoes was a conversation alleged to have taken place between Maat and two police officers.  It was not recorded by them, although recording facilities were available.  McGuire D.C.J. refused to direct the jury in the terms of McKinney v. R. (1991) 171 C.L.R. 468 on the basis that this was not the only evidence against the appellant.

This ruling was correct.  There was other evidence connecting Maat with the shoes.  There were conflicts in the evidence about this, to which the jury was fully referred.  No McKinney direction was called for.

Bank bags and payroll slips

On 19 February 1991, police officers conducted a further search of 110 Moree Street and three Commonwealth Bank bags and three pay packet were located in the kitchen area.  When these were produced (T.427), objection to their admissibility was made.  Mr Feeney said they told of the activities of a number of people from the Commonwealth Bank (T.429).  They were received in evidence, but their relevance never became clear.  In his summing-up, McGuire D.C.J. said (T.1231):-

"He also said they found on the top of the refrigerator some Commonwealth bags and pay slips.  Well, the real relevance of them has not been clearly demonstrated in the case, and I do not need to refer further to them.  There has been cross-examination.  I suggest they haven't been demonstrated to be relevant to the case in any particular way, but they are in evidence; they are Commonwealth bags and pay slips.  I cannot see just how they connect, but it is a fact in issue and you can make up your own minds on that, having heard the arguments."

His Honour should have told the jury to ignore them, but, in the overall context of the trial no miscarriage has occurred.  The evidence was very slight, and could not add to or detract from the force of the identifiable currency found at 110 Moree Street the morning after the robbery.

A Shepherd direction

One of the re-directions sought by Mr Carmody, for Parr, was expressed in these terms (T.1357):-

"Your Honour, I would ask for a redirection in terms of what was said in the Queen v Shepherd or Shepherd v The Queen with respect to circumstantial cases which might be likened to a chain which involve intermediate facts which are indispensable to the Crown's process of reasoning and which, because of their importance, require proof beyond reasonable doubt...

There are the indispensable facts which the Crown must prove beyond reasonable doubt and that is that the rifle, Exhibit 42, was the rifle used in the robbery and that Parr had a connection, a criminal connection, with the burglar and the burglar had a connection with the robbery.  Thank you.  That's all I have."

The evidence against Parr was not limited to her involvement with Sielaff.  The photographs linked her with 110 Moree Street; the chain of evidence beginning with the departure of the stretch limousine from 110 Moree Street through to her being found in Unit 70 links her with 110 Moree Street on the evening of the robbery; she took a leading role in booking into Talisman Units and in the course of that gave a false name and handed over a significant sum of money.  This evidence could properly be considered, as well as the evidence relating to Sielaff.  When all that evidence is considered it shows Parr acting as a decoy to remove Sielaff from his house where Parr knew he had some rifles.  While they were absent, the rifles were stolen and two were cut down at 110 Moree Street.  One was used in the robbery and on the night of the robbery, Parr, who was said to be absent without leave from the Royal Australian Navy, left 110 Moree Street in a style that would not seem to be in keeping with her station in life.

A jury could conclude beyond reasonable doubt that she was a party to the robbery, having provided information about a possible source of firearms and having facilitated their procurement.  The person or persons who performed the burglary cannot be identified, but the possibility that such person or persons was not otherwise involved with 110 Moree Street and the robbery is too improbably to raise a reasonable doubt.

A consideration of the record of the trial shows that the appellants were fairly tried and properly convicted.

Applications for leave to appeal against sentences
His Honour's sentencing remarks include the following (T.1407):-

"You, Garrett, were a prison escapee and therefore on the run when the robbery was committed on 12 February 1991.  You have a very bad criminal record for predominantly offences of dishonesty.  You are currently imprisoned for a breaking and entering offence and attempting to escape offences.  Without the imposition of a further sentence, you could have expected to be released, the Crown Prosecutor informs me, in about January 1994, that is in about two years hence.

The maximum penalty for armed robbery in company is life.  Let that be understood.  The maximum penalty for unlawfully using a motor vehicle for the purpose of facilitating the commission of an indictable offence is 10 years.  Your criminal record, Garrett, seems to suggest that you may be incorrigible.  I hope I am proved wrong.  After careful consideration, in your case, Garrett, the sentence of the Court is that for the armed robbery in company offence, you are to be imprisoned for 12 years, and for the unlawful use of motor vehicle for the purpose of facilitating the commission of an indictable offence, you are to be imprisoned for two years.  The sentences will be served concurrently with the sentence you are now serving and with each other.

Maat, you are 22 years of age.  You have a criminal record, although it is not nearly as bad as Garrett's.  You have been held continuously in custody since your arrest for the robbery offence on 13 February 1991, a little over one year.  It is generally recognised that for sentencing purposes one year in custody is the equivalent of a two years imposed sentence when one considers parole eligibility after serving half the term.  I naturally take that into account.

In your case, Maat, the sentence of the Court is that you be imprisoned for seven years for the robbery and two years for the unlawful use.  The sentences are concurrent.

Jamieson, you are aged 23.  You have a criminal record but, although it is bad, again it is not nearly as bad as Garrett's.  You were the driver of the getaway vehicle.  Since your arrest on 13 February 1991 you have spent some three and a half months in custody.  That will be taken into account.  In your case, I am prepared to accept that you were perhaps marginally less involved than Garrett and Maat in the commission of the robbery.

The sentence of the Court is that you, Jamieson, be imprisoned for seven years on the robbery count and two years on the unlawful use count.  The sentences will be concurrent.

Nixon, you are aged 21.  You have a very bad criminal history.  I am sorry to say that you have spent most of your adult life in prison.  You escaped from prison on 16 March 1991 and you are still to be dealt will for that offence.  I am told you have been in remand seven months over the robbery offence.  I take that into account.  For sentencing purposes I am prepared to accept that your role in the robbery was secondary in a broad sense but nevertheless indispensable to its accomplishment.  On the other hand, your criminal record weighs heavily against you.

The sentence of the Court in your case, Nixon, is that you be imprisoned for the robbery offence for seven years.

Parr, you were born on 13 March 1973.  You were 17 years and 11 months old when the robbery was committed.  You have no previous criminal history.  I am satisfied that, although you materially assisted the others to commit the robbery, you were romantically associated with Nixon, a person with a very bad criminal record, and that you were in all probability influenced by him.  You did have a Naval career.  It is now denied you.  You have spent some six weeks in custody over this offence, so you have had a taste of gaol.  If you dissociate yourself from the criminal element, you have a chance of making good.  I will give you that chance.  You are a young woman and no Court likes to send a young woman to gaol.

In your case, I am going to offer you the benefit of community service and probation."

Garrett was 23 years old when sentenced.  His three page criminal history shows frequent breaking and entering offences as well as two charges of attempting to escape from lawful custody.  The fact that he was an escaped prisoner as at 12 February 1991 is the explanation why the police had 110 Moree Street under surveillance.  This was not evidence at the trial.

Jamieson had a little less than two pages of criminal history and Maat, one and a half pages.  However, they had shown a disturbing degree of lawlessness.

Nixon had a two and a half page criminal history with some crimes of violence as well as crimes of dishonesty.

It was urged that no one was injured in the hold-up.  This ignores the effect that armed masked bandits have upon bank officers and the members of the public lawfully in the bank.  If any lesser sentences had been imposed on young men with such outrageous records, this could properly be regarded as unmerited leniency.

The sentences imposed were proper ones in the circumstances.

The appeals should be dismissed and the applications for leave to appeal against sentence refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1992

C.A. No. 58 of 1992
C.A. No. 70 of 1992
C.A. No. 92 of 1992
C.A. No. 55 of 1992

Before the Court of Appeal

Mr. Justice Pincus

Mr. Justice McPherson

Mr. Justice Demack

T H E   Q U E E N

v.

LEE JAMES GARRETT,

MICHAEL JAMES JAMIESON,
MARCUS CRAIG MAAT,
JASON JOHN NIXON and
KYLIE LEE PARR
(Appellants)

JUDGMENT - DEMACK J.

Delivered the Fifteenth day of February 1993

MINUTE OF ORDER:        The appeals against conviction and applications for leave to appeal against sentence are dismissed.

CATCHWORDS:       CRIMINAL LAW - JOINT OFFENDERS - Appellant convicted of armed robbery in company - whether judge failed to draw attention with the authority of his office to specific weaknesses in identification evidence - whether separate trial ought to have been ordered - whether McKinney direction necessary.  [Appellant Maat]

EVIDENCE - IDENTIFICATION - Appellant convicted of armed robbery in company - whether judge failed to draw attention with the authority of his office to specific weaknesses in identification evidence - whether separate trial ought to have been ordered - whether McKinney direction necessary.  [Appellant Maat]

CRIMINAL LAW - MISDIRECTION AND NON-DIRECTION -  Appellant convicted of armed robbery in company - whether judge failed to draw attention with the authority of his office to specific weaknesses in identification evidence - whether separate trial ought to have been ordered - whether McKinney direction necessary.  [Appellant Maat]

CRIMINAL LAW - KNOWLEDGE - Appellant convicted of armed robbery - whether appellant not merely participated in theft but did so with a view to commission of offence of a kind in fact committed - whether appellant knew of intended use of rifle.  [Appellant Parr]

EVIDENCE - IDENTIFICATION - Appellant convicted of armed robbery - whether inadequate direction on identification - whether direction in fact too favourable to accused - whether summing up put matters to jury relying on evidence admissible only against co-accused and suggesting sufficient evidence apart from identification.  [Appellant Jamieson]

CRIMINAL LAW - MISDIRECTION AND NON-DIRECTION - Appellant convicted of armed robbery - whether inadequate direction given in relation to identification - whether Sheppard direction ought to have been given with respect to identification of accused's shoes and shirt.  [Appellant Garrett]

Counsel:P. Rutledge for the Crown

A.J. Rafter for the Appellant, Garrett

S.E. Herbert for the Appellant, Jamieson

Ms J.M. Dick for the Appellant, Maat

G.P. Long for the Appellant, Nixon

T.F. Carmody for the Appellant, Parr

Solicitors:The Director of Prosecutions for the Crown

The Legal Aid Office for the Appellants

Hearing Date(s):     10, 22 June and 2 November 1992