Dodds v R

De Simoni v R (1981) 147 CLR 383; 35 ALE 265 Kaliyanda v R [2007] NSWCCA 300 Lowe v R (1984) 154 CLR 606; 54 ALR 193 M v R (1994) 18 1 CLR 487 MFA v R (2002) CLR 606 CASES CITED : Nguyen v The Queen (2007) 173 A Crim R 557 Nicopoulos v Commissioner for Corrective Services (2004) NSWSC 562 R v Drollett [2005] NSWCCA 356 R v Habib [2005] NSWCCA 223 R v Henry 1999 46 NSWLR 346 R v Shamouil [2006] NSWCCA 112

PARTIES: Dwayne Kevin Dodds (Appellant) The Crown

COUNSEL: J L Ghabrial (Appellant) G Rowling (Crown)

SOLICITORS: O'Connor Legal (Appellant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3061

McCLELLAN CJ at CL SIMPSON J HARRISON J

TUESDAY 31 MARCH 2009 DODDS, Dwayne Kevin v R Judgment 1 McCLELLAN CJ at CL: The appellant was tried and convicted of a charge that he conspired to commit an armed robbery between 6 May 2005 and 2 July 2006 with Robert Lee, George Tuifua, Acura Niuqila and other persons. A primary issue at the trial was whether there was the conspiracy as alleged. However, the issue of particular significance in this appeal was whether the Crown had established, to the requisite standard, that the appellant was a party to the alleged conspiracy. 2 The Crown case against the alleged conspirators was primarily comprised of the record of multiple intercepted telephone conversations, DNA from balaclavas and other items and the observations, in particular of police officers, who intercepted the conspirators as they travelled to their target, alleged to be the Commonwealth Bank branch at Seven Hills. The appellant was not identified by the police as being present when the motor vehicles were intercepted but there was other evidence to connect him with the events of that morning.

Relevant facts 3 In the middle of May 2005, the police commenced lawfully intercepting telephone conversations between the alleged conspirators, including the appellant and his co-accused. Over 7000 conversations were intercepted out of which 108 contained conversations which the Crown alleged could only be construed as including conversations which revealed the formation of a plan to rob the Commonwealth Bank of Australia on Tucks Road in Seven Hills NSW ("the Bank"). 4 At about 9 am on 1 July 2005 the Crown alleged that the appellant, Lee, Niuqila, Tuifua, Robinson and Sinamoni gathered outside Sinamoni's house in Blacktown. From there they travelled in a convoy of three cars. Sinamoni and Lee in a stolen black Porsche four-wheel drive; Tuifua and Niuqila in a red Toyota Corolla, owned by Niuqila; and the appellant and Robinson in a blue Ford Laser. These three vehicles were being monitored by undercover surveillance police who were driving in cars and another police officer who was in a helicopter. 5 From Sinamoni's house the cars travelled to an area behind some shops in McCoy Street, Toongabbie. At that location a blue sport's bag containing a sawn-off shotgun, a crowbar and other items was moved from the blue Ford Laser to the black Porsche. 6 The three cars then drove in the direction of the Commonwealth Bank on Tucks Road Seven Hills. When the cars were about to turn right into Tucks Road the police intercepted the convoy so as to prevent the robbery from occurring. As a result the Porsche collided with one of the cars driven by the police. 7 It was alleged that Sinamoni then drove the black Porsche away at high speed, managing to evade the police on the ground. However, it could still be seen by the officer who was in the helicopter. The other two cars also managed to evade the police. 8 A few kilometres away, Sinamoni and Lee parked the black Porsche in the car port of a house in Simmonds Street and ran away. They dumped the blue sport's bag in a laneway. This bag was found shortly afterwards by a resident of the area and handed to the police. It contained a loaded sawn-off shotgun and a crowbar, amongst other items. 9 Sinamoni, Lee and another person were located by police on a main road close by. Tuifua and Niuqila were also arrested a short time later. They were driving in the red Toyota Corolla at the time of arrest. The appellant and Robinson were arrested a week later, on 8 July 2005. 10 Lee and Niuqila had purchased three balaclavas a few days earlier from a shop on George Street in the city. The shop owner identified them both and a receipt for the purchase was also found. 11 Two balaclavas, some gloves and other clothing were found in the red Toyota Corolla. Another balaclava was found in the street nearby to the Toyota. 12 DNA testing was conducted on a number of the items seized by police. A profile consistent with the appellant's DNA was found on some of them being:

a. a grey cloth found in the red Toyota Corolla that Tuifua and Niuqila were arrested in; b. left hand glove found within the red Toyota Corolla; and c. the balaclava which was located on the street. 13 A profile consistent with the DNA of Sinamoni was also found on the passenger seat of the black Porsche. 14 The Crown case specifically relating to the appellant consisted of the following evidence:

a. the intercepted conversations in which the Crown said he took part and which it was alleged demonstrated the appellant's knowledge of and involvement in the agreement to rob the Bank. b. the relevant DNA results. c. the fact that the appellant was arrested in the company of the co-accused Robinson on 8 July 2005. 15 As I have indicated there was no evidence from any of the surveillance officers that the applicant was present in the convoy of cars on 1 July 2005. The appellant is apparently Aboriginal and none of the officers were able to say that they observed a person of Aboriginal appearance. He was not present for the hearing of the appeal.

The telephone conversations 16 Some of the telephone conversation between the alleged conspirators was spoken in code identified by the Crown as "Pig Latin." The evident purpose was to avoid any intercepted conversation being understood by the police. Pig Latin is commonly used by persons seeking to mask their true conversation and, so the evidence indicated at the trial, is commonly used by persons intent upon criminal activity. 17 In order to assist the jury in understanding relevant passages in the intercepted conversations the Crown called a police officer, Officer Murray who gave evidence that, although he had no formal training in understanding Pig Latin, he had acquired a knowledge of it since joining the robbery squad. He said that he had been with the squad for about 4½ years and in that role had monitored conversations recorded in over 40 telephone intercept warrants and that in about 85 to 90 percent of those conversations variations of Pig Latin were used. Of course, each warrant authorised the interception of many conversations. He said that he was familiar with the fact that users of Pig Latin commonly removed the first letter of a word and placed in at the end adding "ay" or "ecans" after it. The word "pump" becomes "umpay". Sometimes "sn" is placed at the start of a word turning "pump" into "snumpay" or "snumpecans." Other variants are also employed. 18 The Crown relied on 101 of the intercepted conversations of the alleged conspirators. During a voir dire hearing Officer Murray said that he used his knowledge of the language to translate about 20 to 30 Pig Latin words. The appellant objected to this evidence being adduced and submitted that Officer Murray should not have been accepted as a person with the requisite specialised knowledge and accordingly entitled to give the evidence.

The appeal - Ground 1 19 The appellant advanced four arguments in support of the submission that the evidence of Officer Murray was wrongly admitted. They are found in Ground 1 of the appeal.

The trial judge erred: (a) in allowing the Crown to call evidence about the meaning of words in Pig Latin (used in the recorded conversations) from Officer Murray as a person with specialised knowledge in that area; (b) in allowing the Crown to call evidence from Officer Murray that the word "snankos" in Pig Latin means "bank" in the absence of evidence from the Officer as to how it was he formed that opinion; (c) by not assessing how it was that the Officer formed his opinion wholly or substantially based on his specialised knowledge in that language; and (d) by not excluding the evidence of Officer Murray with regard to his interpretation of the words in Pig Latin, particularly the word "snankos." 20 The trial judge considered the appellant's objection at a hearing on the voir dire. Her Honour concluded: "I accept from the evidence given on the voir dire that the officer, Detective Murray, has considerable experience in reviewing intercepted telephone conversations, listening to and deciphering code used by those whose conversations are being intercepted and recognising that code as pig Latin when it is being used and being able to decipher and translate that into English. This is almost, it seems to me, in the category of common knowledge to the extent that arguably expert evidence might not be entitled to be called of it. However, it has not quite come to that stage it seems to me that it could be said that pig Latin and the way in which it is used in common knowledge. It must be noted that it is a system well known to many and a definition of it appears in an on-line encyclopaedia easily obtainable by undertaking a Google search. It is easily understood by looking at the entry in that on-line encyclopaedia. It is not a novel, unique, unusual or difficult form of code. I accept that the officer has seen it in use over the last five years during the course of his work and that he has specialised knowledge of its use as a result of his experience in the robbery squad. I do not accept that his translation of the words is likely to be have been influenced adversely or prejudicially against the accused because he already believed, at all times, that he was monitoring the conversations of those who were involved in a conspiracy to commit an armed robbery. Ultimately it will be a matter for the jury to decide whether or not their opinion coincides with that of the officer and they will be directed to that effect at the end of the trial. In the circumstances I propose to allow the opinion evidence to be given of the translations of these words from pig Latin into English as they appear in the intercepted conversations." 21 The appellant accepted that her Honour was obliged to and had made her decision to admit the evidence having regard to s 79 of the Evidence Act 1995. The identified basis for its admission was the finding that the officer had specialised knowledge based on his experience with Pig Latin. 22 Section 79 is in the following terms: "(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences." 23 It was submitted that her Honour's decision to admit Officer Murray's evidence was manifestly unjust there being little evidence that the Officer had sufficient specialised knowledge in this area. It was further submitted that there being no express finding that the officer's opinion was "wholly or substantially based" on specialised knowledge, the second limb of s 79, the reasoning process leading to the formation of the opinion was not exposed or made transparent. 24 It is apparent from the trial judge's decision in relation to the objection that the challenge made by the appellant to the admissibility of the evidence was directed to the question of the officer's alleged specialised knowledge. There was no suggestion that the proffered opinion was not based on that knowledge (if there was such knowledge) or that the reasoning process was not exposed. In my judgment the finding that the officer had the requisite knowledge was both open and appropriate having regard to the officer's evidence. I have summarised the relevant evidence in [17]. Furthermore, he explained in some detail the structure of the language known as Pig Latin and thereby exposed the reasoning process by which he identified the meaning of particular words: Nguyen v The Queen (2007) 173 A Crim R 557 at [53]-[43]. 25 Particular complaint is made by the appellant about the fact that the officer was permitted to give evidence as to the meaning of the word "snankos." The officer said it meant "bank." 26 When the recording of the relevant telephone conversation was played to the jury there were some difficulties with its clarity. However, no issue was raised by defence counsel that if the word which was recorded was "snankos" it meant "bank". Counsel accepted that it had this meaning "on the basis of his code" (using the trial judge's words) being a reference to Officer Murray's "code". The relevant exchange between counsel and her Honour included an acceptance that in the officer's opinion a user of Pig Latin would commonly place a "sn" sound at the front of a word so that "pump" becomes "snumpay". On the same principle "Bank" becomes "snankos." No particular explanation was given for the addition of the letters "os" at the end of the word. However, no issue was taken about that matter at the trial which was not surprising. The officer explained that it was common for individual speakers to add a variation of their own to the generally accepted manner of speaking. Once it is understood that "sn" was commonly used to commence a word the letter "os" had little significance. Her Honour was correct to admit into evidence the officer's opinion that it meant "bank." 27 I reject ground 1 of the appeal.

Ground 2 - The trial judge erred in allowing evidence to go before the jury that the applicant was reporting on bail.

Ground 3 - The trial judge erred in allowing evidence to go before the jury which revealed that the applicant was submitting to urine testing at the time of the intercepted conversations. 28 These grounds may be conveniently dealt with together. 29 At the time of the alleged commission of the offence the appellant was on bail for an offence allegedly committed in Queensland. This matter was referred to at least indirectly in the telephone conversations. There was an issue at the trial as to whether the portions of the transcript of the telephone calls containing these references should have been excluded from the evidence. The Crown sought to tender this portion of the telephone calls to support the allegation that it was the appellant who was speaking on the relevant occasions. 30 In her judgment on this issue her Honour said: "It is certainly prejudicial to the accused but it is probative. It is probative to the issue of whether or not the accused is the person speaking and to allow the jury to compare the voice in that conversation with other voices in other conversations in which it is asserted that the accused is the speaker, and to determine whether or not Detective Murray's opinion evidence in relation to the identity of the speaker ought be relied on by them. It is circumstantial evidence which is capable of linking an event that surrounds the accused, on the basis of the content of the conversation, with the speaker who is alleged to be the accused Dodds. It is prejudicial because it raises in the jury's mind the fact that he is a person who has been charged at least with another criminal offence. However, the issue is whether or not it is unfairly prejudicial and to that extent the question is whether or not the risk of prejudice can be cured by a direction to the jury. It seems to me that that is capable of occurring. The jury can be directed that it is not relevant to the issue of the accused's guilt for this offence. It is limited in its use, only as a circumstance which they are entitled to take into account in determining whether or not it is the voice of the accused that they can hear on the intercepted telephone conversation and they can be directed further about the fact that they are not entitled to speculate. The jury is assumed and taken to follow the directions given to them by a judge. It seems to me that that prejudice, such as it is, is capable of being cured by such a direction and I propose to allow that to be called." 31 The appellant criticised her Honour's decision and submitted that the tests in s 135 and s 137 of the Evidence Act 1995 were not considered and that her Honour failed to balance the issues of unfair prejudice and the probative value of the evidence. 32 To my mind the criticism has no substance. Although the trial judge did not refer expressly to either s 135 or s 137 there can be no doubt that she considered the questions required by both sections. Her ultimate conclusion that any unfair prejudice could be dealt with by an appropriate direction was open and in my opinion correct. 33 The appellant submitted that because there was other evidence which indicated that it was the appellant who was speaking during the telephone conversations the particular part of the conversation should have been rejected. I do not accept the submission. The probative value of the disputed evidence was not diminished by the fact that other evidence may have been available. The other evidence did not make it indisputable that the speaker in the telephone conversation was in fact the appellant. "Evidence has 'probative value', if it is capable of supporting a verdict of guilty" (R v Shamouil [2006] NSWCCA 112 at [61]). 34 A similar controversy arose with respect to remarks in the telephone calls where the speaker revealed that he was required to undergo urine testing which was one of his bail conditions. There was no application to reject this evidence before the transcript of it was provided to the jury. However, when objection was taken her Honour ruled that it should be admitted. She said: "The argument is that the reference to urine testing, also in this conversation, increases the risk of unfair prejudice because of the fact that the jury might speculate or reason that he is a person given to using illegal drugs and, therefore, providing a motive for him to commit this offence. It seems to me that similarly to references to his being on bail, and in circumstances where the evidence is relied on for the very limited purpose that I have outlined, that risk of prejudice is capable of being cured by a direction, and as a such is not unfair. It is regrettable that his matter has come to light after the evidence has gone to the jury in circumstances where there would appear to be a misunderstanding between the Crown and counsel for Mr Dodds about that particular portion of the conversation. It was never a matter raised in voir dire argument before the trial proper commenced before the jury. I accept that the evidence is probative, because as the identification of the speaker is in issue, it is capable of being used by the jury, so that its content assists them to identify the speaker at the time. That, coupled with the other evidence of the actual bail condition, would be able to be used by the jury to assist them to determine the identity of the speaker on this occasion. The prejudice can be cured by a direction, and that is what I propose to do now once I get the jury back, before sending them home." 35 Complaint was made by the appellant that by tendering this evidence the Crown Prosecutor breached an undertaking given during the course of a prior discussion between counsel that it would not be tendered without first advising the appellant's counsel. The respondent denies that such an undertaking was given. It is unnecessary to explore the detail of this dispute. Even if such an undertaking was given the prosecutor made plain at an appropriate time that he proposed to tender the content of the conversation, which included the reference to the urine testing. The circumstances of its tender were not such that for this reason prejudice was occasioned to the appellant which would have weighed in favour of rejecting the evidence. The question of its admissibility was required to be determined, as her Honour did, by consideration of both the probative value and the possibility of unfair prejudice to the appellant. 36 With respect to the question of potential prejudice her Honour, as she indicated she would, was careful to instruct the jury that they should not draw any inference, other than in relation to whether the appellant was the speaker, from the reference to bail or the obligation to provide urine samples. 37 Her Honour said: "You no doubt heard during that last conversation that was played a reference by one of the speakers to - he said something like 'My solicitor rang the house last night and said if I don't get a urine in by Friday up to Queensland they're going to pull my bail' - something along those lines. The Crown alleges that the person who was speaking on that occasion was the accused Mr Dodds. You will, as I understand it, in a later conversation in this series of telephone calls, hear another reference by a person who the Crown alleges is Mr Dodds, referring to being on bail. Normally in trials, if in fact a person who is charged with something happens to be on bail, you wouldn't hear a reference to that because it's not relevant. When I told you at the beginning of the trial that an accused person is innocent until they are proved guilty beyond reasonable doubt by the Crown, that's not just a platitude. It means what it says, and that is that an accused person has the presumption of innocence, and the mere fact that they are on bail just means that they have been charged with an offence; it doesn't mean they have been convicted. The other thing that I have to direct you is that you're not entitled to speculate about anything. As will become clear, I hope, in this trial, the Crown is going to be calling some evidence that the accused Mr Dodds was in fact on bail at the time and that there were some conditions of that bail. That will be called later on. The Crown, as I understand it, relies on that, and in fact I've ruled in relation to this that this is the only basis on which it is relevant in the trial, and that is to assist you to determine whether or not the person who is speaking about that is in fact, as they allege, Mr Dodds. In other words, it's the context of what is said that is relevant, and you'd be entitled to take it into account only on that basis - that is, that it assists you to work out that it was Mr Dodds, if in fact, after all of the evidence is called, you are satisfied that in fact he was on bail at the time and there was a condition. You will hear some more evidence about that, and it will be up to you, at the end of the day, to decide whether or not you are satisfied that he was on bail and the extent to which, if at all, that influences your decision about whether or not in fact the person who is speaking on those occasions is the accused Mr Dodds. It is only relevant for that purpose, however. It is certainly not relevant in any prejudicial way to the accused. You are not entitled to, and I direct you that you must not, form any adverse view of the accused simply because you know or will know that he is a man who is on bail at the time. That is not relevant. You're not entitled to use it to reason, for example, 'Well, if he is a person who was on bail, therefore he is a person who's likely to commit the crime that the Crown says he committed in this trial.' That is not a permissible reasoning on your part. It is not led by the Crown for those purposes. And if you were to do such a thing, you would have ignored the direction I've already given you and that I will reinforce later in the trial. That is, that he remains innocent unless the Crown can prove by admissible evidence beyond reasonable doubt that he is guilty of the charge that he is facing in this trial, not something that he might have been facing on another occasion that he got bail for. Further, you're not entitled to speculate about what any reference to urine testing might be. No doubt, you've already thought about it, but it's simply not relevant in this trial. It is only connected with other evidence that is anticipated will be called, relevant for you to use to assist you to determine whether or not you're satisfied that the person speaking about these things was, in fact, the accused Mr Dodds." 38 Directions to similar effect were given during the summing up. 39 Her Honour was of the opinion that by giving these directions any prejudice which might have been occasioned to the appellant by reference to matters of which complaint was made could be adequately addressed. In my opinion her Honour was correct in taking that view. The submission that by admitting this evidence her Honour erred should be rejected.

Ground 4 - Reference to killing Pam 40 This ground was expressed as follows:

The trial judge erred: (a) in allowing evidence to be called before the jury of a conversation about wanting to kill "Pam" and (b) permitting the Crown to invite the jury to draw an inference from that conversation that it relates to wanting to burn the Porsche. 41 This ground of appeal relates to a conversation which took place on 27 June 2005. On that day a telephone call between Tuifua, the appellant, Robinson and Niugila was intercepted. It is necessary to relate the whole of that conversation in order to understand the nature of the dispute. Date of call: 27/06/2005 Time of call 22:14:54 Legend: V1: = Cliff V2: = Niuqila V3: = Tuifua V4: = Dodds V1: Hello V2: What are you doing? (Untranscribed background conversation) (Pause) V3: Hello. V2: What are you doing? V3: What are you doing, lad? V2: Hey, what are you doing? V3: No fuck all what are you up to? V2: No, shit all. What are youse doing? V3: No nothing, this cunt's come to pick me up. V2: Huh? V3: This, ah, (unintellible) just come and pick me up. (Speaking to person in background - Go right) V2: Oh. V3: What are you? Where are you? V2: No, just here at home. V3: Do you want me to meet upikens tonight? V2: With who? V3: Oh, I'm just with Doddsy and fuckin' Clifford. V2: Clifford. V3: Clifford. (Pause) V3: (Speaking in background - Tell him I'm just tryin' and fuckin' sort Pam out, the fuckin' …) V3: Yeah, fuckin' … V2: Where are youse going to? V3: … we got to fuckin' take fuckin' Pam out man and get fuckin' … V2: What? V3: … and, and fuckin' cut her throat, yeah. Cut her throat, lad. V2: Who? V3: You know Pam, Pamela? V2: Yeah. V3: That bitch. Yeah. Ah Doddsy wants to knock her. Yeah, we got to take her out of the whole state so we all start fresh, mate. V2: (Laughs) V3: You know what I mean? Every cunt's fuckin'… V2: Mm. V3: I don't know what's going on, man. Everyone's firing off at each other. V2: (Laughs) Okay, ah … V3: So, just go and take it off this cunt, man … V2: Oh. V3: … so no one gets I, you know what I mean? V2: Yeah. V3: Well ah, what do you call it? V2: Oh well. V3: Um, are youse out tonight or, going … V2: Me? I'm at home. I'm just … V3: Are youse gunna do anything or are youse just … V2: I don't' know. Ask, ask him. V3: All right then, hold on. (Speaking to person in background - Here talk to him). V4: Oy. V2: Oy. V4: Yeah I'm just fuckin', I'm going out to sort Pam out, the fuckin' mill. V2: What'd she do? V4: She, she's been talking shit behind my back, so I'm, I'm just gunna go. I'm gunna go fuckin' burn her hair man if she keeps, you know what I mean? V2: (Laughs) V4: … she's pissing me off, the cunt. V2: All right … V4: Know what I mean? V2: Yeah. V4: Hey? V2: Yeah. V4: 'Cause that shit plays on my conscience, man, you know, she fuckin' saying this and that, she's pregnant and this and blah, blah … V2: Bullshit. V4: … blah. Yeah I'm gunna fuckin', I'm gunna kill her. V2: Did she, did she say she's gunna tell your missus? V4: Yeah, yeah, you know what I mean? That's what … V2: Yeah. V4: … I'm saying, you know, she ends up turning, telling my missus and that, start a big drama, so, um, I'm just out here sorting Pam out. V2: Yeah, you don't need it hey? V4: What? V2: You don't need that shit. V4: Yeah I know, I don't need that shit. V2: Mm. V4: So, I'll just, whatsaname, I'll fuckin', I'll ring you on, when I'm on my way back. V2: All right, bro. V4: It shouldn't be too long, all right? V2: All right. V4: All right, bye. V2: Bye. (Call concluded)." 42 The Crown called evidence from Officer Murray in which he indicated that in his opinion the reference to Pam in the conversation was the reference to the Porsche four-wheel drive vehicle which had been allegedly stolen to commit the armed robbery. As it happens there was also evidence from Sinamoni that the references to Pam were references to a motorcar. There was also evidence before the jury that motorcars were sometimes referred to by the participants in the enterprise by female names. 43 Her Honour determined to admit the evidence in the telephone conversations. She gave as her reasons: "This is a voir dire in relation to the admissibility of the whole of a conversation recorded between two of the accused, Mr Dodds and Mr Robinson, and two others on 27th of June 2005 at 10.14 pm, sequence number 3574. It is argued that it would be unfairly prejudicial to the accused to allow the conversation into evidence because during the course of that conversation Mr Dodds, speaking to Mr Robinson and others, makes reference to a person called Pam or Pamela and the intention he expresses to kill that person, specifically to set fire to her hair, to take her out and words to that effect. The Crown seeks to lead this evidence and seeks that the jury draw an inference that the speakers are referring to an intention to dispose of a motor vehicle, more probably than not a black Porsche motor vehicle that had been stolen earlier in the month on 5th of June and that reference to the disposal in those terms was an attempt on the part of the speakers to speak in code so that their real intention could be hidden. I accept that during the course of the 121 intercepted conversations between various parties, including these three accused, that will form apart of the Crown case between 7th of May 2005 and 30th of June 2005, each of them has either referred to or been party to a conversation in which various motor vehicles have been referred to either by the use of names, namely female names, some nick names, reference to sexual behaviour or ability, and otherwise personified in a way that gives the impression of the use of a code. At least that inference would be available to the jury from those conversations. Clearly enough the calls are in a strict sense ambiguous and on the face of it might well be capable of a meaning, a straightforward meaning, in accordance with what appears on the face of each of the conversations. Taken in context, however, I accept that it would be open to the jury to infer over the course of these conversations that the accused referred to motor vehicles in that coded way. There was also in the conversations reference to what the jury would be entitled to accept was the theft of the black Porsche from Mosman on 5th of June and references to either the use or disposal of that and other vehicles and also reference to the intended use of that or other vehicles in the commission of what is alleged to be this intended armed robbery and for that matter other offences as well. The vehicle, the Crown contends referred to, was referred to as Pam or Pamela. The Crown would call evidence in chief from Detective Murray that during the course of the conversation he had no knowledge of any associate, partner, girlfriend or other acquaintance of any of the accused with the name of Pam or Pamela. Further, there was no indication that any of the accused had, during the course of the investigation, committed any offence of violence against a person known as Pam or Pamela, he did not believe that that was about to occur and he is not aware that any such event has occurred. The Crown, as I understand it, will make it clear to the jury, if this conversation is led, that the Crown does not contend that the words would be capable of being given their face-value meaning by the jury. The argument, as I understand it, on behalf of each of Messrs Dodds and Robinson is that the jury may nonetheless not accept the inference contended for by the Crown but might otherwise accept the words at their face value, which would be prejudicial and which may lead to a view that two of the accused were persons capable of that degree of violence which might then be used impermissibly by them to reason towards their guilt in this trial. It seems to me in the circumstances of the full context of this conversation and the evidence that the Crown seeks to call from the officer about other investigations that the chance of the jury in fact giving these words their face value meaning is very low. In any event, this is not the only conversation in which one or other or all of the accused have referred to, what on the face of it would appear to be, women in a derogatory way, referring to the possibility, on one view of it, of being engaged in some form of group sexual behaviour with one of them and otherwise referring to sexual conduct with these women, if in fact the words can be taken at their face value. There is no objection to the admissibility of any of that additional material. It is going to be necessary to direct the jury in relation to those conversations as well that they cannot be prejudiced against the accused in relation to the words they might use or any views they might have contrary to what on the face it might appear to be views expressed by the accused. And they must be directed in careful terms that no matter what they might think of that, it plays no part in, and can play no part in their reasoning in relation to the offence with which they have been charged in this trial. It seems to me in the circumstances, this particular conversation is in no different category than all of those others references and that while there is a risk of prejudice it seems to be not unfairly prejudicial to the accused. The evidence clearly has a probative value because it is a further reference to, if the jury accepts it, the stolen motor vehicle which the Crown contends the accused proposed to use to commit the armed robbery; that conversation held only three days before the day on which the Crown alleges the armed robbery was to be committed. In those circumstances I propose to allow the conversation to be played in evidence to the jury along with all of the other conversations. But I will be directing the jury in due course in relation to all of the contents of the conversations to ensure the risk of prejudice is reduced. 44 It was submitted that the conversations were equivocal. It was further submitted that because the jury may infer that the conversations referred to an intention to do harm to a female person, which may be understood literally by the jury, prejudice may be occasioned to the appellant and accordingly the evidence should be rejected. That argument was pressed on the appeal. 45 In my opinion the argument is of no substance. Even without the evidence of Sinamoni, but reinforced by that evidence, when it is understood that the participants in the conversation commonly referred to motor vehicles by a female name the inference that the conversation was a reference to a vehicle was available. The inference was supported by evidence from the police officer and from one of the co-accused. In these circumstances the potential for prejudice to the appellant because the jury would assume the reference to Pam was a reference to a person was limited, if it existed at all. 46 The appellant submitted that her Honour made two factual errors in her reasons. Rather than the appellant stating that he wanted to get rid of Pam, as her Honour suggested, it was Tuifua who expressed that intention. Secondly, her Honour understood that Officer Murray was to give evidence to the effect that he had no knowledge of any associate, partner, girlfriend or other acquaintance of any of the accused with the name of Pam or Pamela. In fact his evidence was that he knew the name of the appellant's partner and the partners of the other accused persons and there were no Pams amongst them. 47 It was further submitted that her Honour fell into error because she did not expose a coherent process of reasoning to support her finding that an inference could be drawn that the conversation related to cars. 48 Apart from the evidence that the alleged conspirators would refer to a car by a female name there are a number of matters referred to in the conversation which suggest that the conversation was not about harming a known person. Firstly, the evidence strongly indicated that the accused were conscious of the possibility of their conversation being recorded. In these circumstances it would be extraordinary if they were to discuss on the telephone an intention of cutting a person's throat and otherwise occasioning significant harm to them. Furthermore, although Pamela is referred to on occasions as a person, the reference to "everyone firing off at each other and so, just go and take it off this cunt, man … so no one gets it, you know what I mean" is consistent with there being problems between the alleged conspirators with the stolen car which would be resolved by its destruction. 49 To my mind her Honour's reasons for the admission of this evidence were adequate and appropriate. I am not persuaded that her Honour erred by admitting it into evidence.

Ground 5 - The trial judge erred in permitting surveillance police to give evidence without revealing their real identity.

Ground 6 - The trial judge erred in allowing the Crown to parade such officers in front of the jury panel; and

Ground 7 - The trial judge erred in admitting a sealed document handed up by counsel for the Commissioner of Police which defence counsel was unable to see. 50 It is also convenient to deal with these grounds together. 51 The Crown initially proposed to call 15 surveillance officers who had been involved in the investigation. This was later reduced to 13. The trial judge was required by s 14(1)(b) of the Law Enforcement and National Security (Assumed Identities) Act 1998, unless the interests of justice otherwise required, to make orders to ensure that the identity of police officers in respect of whom there was in force an assumed identity approval not be disclosed. To effect this purpose her Honour was empowered by s 14(2)(a) of that Act to allow the officers to be identified by number. 52 Section 14 is in the following terms: "(1) If, in proceedings before a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of an officer in respect of whom an assumed identity approval is or was in force is in issue or may be disclosed, the court, tribunal, Royal Commission or other commission must, unless it considers that the interests of justice otherwise require: (a) ensure that such parts of the proceedings as relate to the identity of the officer are held in private, and (b) make such orders as to the suppression of evidence given before it as, in its opinion, will ensure that the identity of the officer is not disclosed.

(2) In particular, the court, tribunal, Royal Commission or other commission of inquiry: (a) may allow an officer in respect of whom an assumed identity approval is or was in force to appear before it under the assumed name or under a code name or code number, and (b) may make orders prohibiting the publication of any information (including information derived from evidence given before it) that identifies, or might facilitate the identification of, any person who has been or is proposed to be called to give evidence.

(3) A person must not contravene an order in force under this section. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both." 53 Her Honour was satisfied that each of the relevant police officers was an officer, in respect of whom an assumed identity approval (was) "in force" within s 14(1) of the Act. She came to this conclusion having regard to the contents of a confidential envelope which contained relevant details in relation to each of these officers. She did not provide counsel access to those details. Making the contents of the envelope available would have disclosed the identities of the officers. Complaint was made that this was an error which occasioned a miscarriage of justice. 54 Section 14 is provided for the obvious purpose of protecting the identity of relevant law enforcement officers. That their identities should be protected could not be in doubt. Both the safety of the officer and that person's continuing capacity to operate as an effective "undercover" officer are at risk if the true identity of the officer becomes known. Although there are many categories of information which in the public interest require protection, but which may be disclosed to counsel with appropriate undertakings, the true identity of an "undercover" officer has a particular sensitivity. 55 It is a serious step for a court when making any decision to have regard to material which has not been made available to the parties. Whether that step is appropriate will depend on the nature of the information involved and the issue in the trial to which it may be relevant. If by reason of the non disclosure of the information a party may be inhibited in their defence (if it be a criminal trial) because the information may go to credit or other issues of primary significance, disclosure in some form may be necessary. It may even be that because disclosure cannot be allowed, the absence of the information is sufficiently unfair to an accused person that the prosecution cannot proceed. 56 The nature of the considerations which are relevant when confidentiality is claimed were considered by Smart AJ in Nicopoulos v Commissioner for Corrective Services (2004) NSWSC 562 which was concerned with an issue arising pursuant to s 130 of the Evidence Act 1995. A balance must be struck between the interest to be protected and the right of an accused person to a fair trial. 57 The need for the protection of the identity of relevant officers was emphasised by the Hon J W Shaw, Attorney General, Minister for Industrial Relations and Minister for Fair Trading when the Bill for the relevant Act was before the Parliament. The Attorney General said: "The bill recognises that investigations and operations that require the use of assumed identities can be dangerous. Protections for law enforcement and national security officers, and operations, are needed at every step in the criminal justice process. For this reason, the bill makes provision for the courts to grant that officers may give evidence in private using an assumed name or a code name, and to suppress any evidence that might disclose that officer's real identity. A breach of the suppression order is punishable by a fine or 12 months imprisonment, or both. The bill also makes it an offence for any person to directly or indirectly disclose any information relating to the provision of documentation in assumed names or to relevant records." 58 In the present case the relevant information was confined to documents which confirmed that the relevant persons were officers in respect of whom there was in force an assumed identity approval. The consequence for the appellant's trial was that the true identity of the officers would not be disclosed. However, the entirety of their evidence relevant to the issues in the trial was given in public. There was no suggestion, either at the trial, or in the appeal that apart from making plain that they were "undercover" officers the appellant was prejudiced in his trial. Even if they had not been identified as undercover officers it would have been obvious to the jury that they were police who had been assigned to the surveillance of the alleged conspirators by covert means. 59 In these circumstances in my judgment the decision which the trial judge made to withhold the envelope from counsel was appropriate. The public interest in maintaining the anonymity of the witness far outweighed the prejudice if any, and that is difficult to discern, to the appellant by his counsel not being able to satisfy himself that the officers were the subject of assumed identity approvals. The interests of justice did not require her Honour to take any other course. 60 There was one issue which may have required the identity of the officers to be disclosed. Section 38(7)(a) of the Jury Act 1977 requires that jurors be informed of the identity of principal prosecution witnesses so as to avoid prejudice by reason of a knowledge in a juror of a particular person. Her Honour dealt with this problem by asking the officers to stand before the jurors where they could be observed for the jurors to determine whether they were familiar with any of the officers. As it happened no juror was familiar with any officer. 61 It was submitted that by taking this course her Honour's discretion miscarried. The submission should be rejected. It will be obvious that in circumstances where a person with an assumed identity is to give evidence the jurors must have the opportunity of determining whether that person is known to any of them. Whether this is done by a separate act of asking the officer to stand before the jury or by the jury being invited when the officer gives evidence to indicate whether that person is known to any of them is of little consequence. The jury will be aware that the person's true identity is not being disclosed. Provided, as occurred in the present case, the jury are instructed that they should not draw any adverse inference from the procedure which was followed, the receipt of evidence in this form is appropriate. 62 There will of course be cases where the true identity of the prospective witness may be significant. This may arise in relation to credit issues or perhaps where a mistake of a particular character is alleged. There will be other cases. In these circumstances the trial judge is required by the legislation to weigh the competing interests. However, when the only concern is to devise a mechanism whereby the jurors can determine whether they are familiar with the person the course taken in this trial is appropriate.

Ground 8 - The Trial Judge erred in allowing Officer Justin Murray to have his evidence led in contravention of s 33 of the Evidence Act. 63 The Crown sought to lead evidence from Officer Murray pursuant to s 33 of the Evidence Act 1995. That section provides, inter alia, in s 33(1): "A police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer." 64 However, such evidence "may not be so given unless:

(a) the statement was made by the officer at the time or soon after the occurrence of the events to which it refers; (b) the officer signed it when it was made; and (c) a copy was served on the accused person or his lawyer a reasonable time before the hearing of the prosecution's evidence." 65 The appellant submitted that the evidence of Officer Murray should not have been admitted as provided by s 33 because his statements were not made "at the time of or soon after the occurrence of the events to which it refers." 66 Particular objection was taken to the statements of the officer which were made on 30 October 2006, which was about 18 months after the surveillance and investigations were conducted. The other statement relied upon by the prosecution was made on 9 August 2005. This latter statement related to events on and after 1 July 2005. 67 The essential contents of the statement dated 30 October 2006 was a summary of records relating to the interception of telephone calls including the recordings and transcripts tendered in evidence at the trial. Although, of course, the statement was not made at the time that the interception was effected, it was made when the officer reviewed that material for the purpose of giving evidence at the trial. The statement includes the conclusion that it was the voice of the appellant which could be identified as one of the speakers in the telephone call. Accordingly, in the relevant sense the statement was in relation to matters which were contemporaneous to its making. The interception of the relevant calls and the making of the transcript was established by other evidence at the trial. In these circumstances there was no error in her Honour permitting the officer to read from his statement in the course of giving evidence. 68 The statement of 9 August 2005 relates to events on or after 1 July of that year. As with the other statement the statement was made when the officer was reviewing relevant material including the application for the telephone warrants, his own notes and information contained in the police computer database. Accordingly, in the relevant sense the statement was made in relation to matters which were contemporaneous to its making.

Ground 9 - the Trial Judge erred when she did not discharge the jury after Ms England of counsel's outburst in the presence of the jury in relation to the witness Lucas. 69 Ms England of counsel was retained by the Commissioner of Police to protect the Commissioner's interests during the course of the trial. The Commissioner's concern related to the need to secure the identity of particular police officers and the methodology used by the police in the course of the investigation. Of particular concern to the police was that evidence of the precise way in which helicopter surveillance was used should not be made public. To this end the trial judge imposed limits on the evidence of Officer Code No 1464 who observed the events of 1 July 2006 from the helicopter. In particular the trial judge ruled that there could be no cross-examination or evidence called in relation to general issues of police surveillance which might reveal the police methodology which her Honour concluded should be protected as matters of public interest immunity. 70 After this ruling had been made Officer 1464 was called. When cross-examined by counsel for Sinamoni a question was asked as to how many other police, apart from Officer 1464, were in the helicopter. Ms England at that point rose in the back of the court and in court dress said loudly "Objection. I press the ruling." Counsel for one of the accused objected to this course and the jury was asked to retire. 71 The trial judge gave counsel the opportunity to consider the position and counsel for the appellant sought a discharge of the jury. Her Honour declined to take this course but when the jury returned gave them particular instructions in relation to the events which had occurred. Her Honour said to the jury, inter alia: "One thing that is very important that you must follow, which I am going to direct you now, is that you must not take it into account in any way whatsoever in relation to this trial. It has nothing to do with this trial, the interruption that occurred. You should ignore it. You certainly should not take it into account in any way adverse to the accused nor, for that matter, in any way either adverse to or favourable to the Crown. It has nothing to do with this trial and you should just now clear it from your minds. Ignore it and get on listening to the rest of the evidence. Can we have the witness back please." 72 After the jury had retired the judge made plain her displeasure with the course taken by Ms England. Her Honour was right to express these views. Knowledge of the number of officers present in the helicopter had no potential to prejudice, either in the particular case or generally, investigations carried out by the police. The trial should not have been interrupted. 73 However, the interruption did not in my view occasion any prejudice to the appellant or his co-accused. No doubt the jury were puzzled by the events and perhaps amused. However, any possibility of prejudice was appropriately and firmly addressed by her Honour's directions to the jury. They were sufficient to deal with the matter.

Ground 10 - The verdict against the applicant was unreasonable and was not supported by the evidence. 74 The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 18 1 CLR 487; MFA v R (2002) CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court's task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance: "The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: 'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56]. 75 In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96]. 76 In my opinion the Crown case against the appellant was compelling. The intercepted telephone conversations both provide evidence of the conspiracy but also of the appellant's involvement in it. The extracts from the intercepted conversations which I have set out below are of particular significance to the existence of the conspiracy, although it must be recognised that the appellant was not recorded as a speaker in them. However, the fact that the appellant was associating regularly with the participants in these calls at relevant times is undoubted. 77 Where appropriate I have added the translation which the prosecution suggests should be made of words spoken in "code." "Date of call:24/05/2005 Time of call: 13:23:58

Legend: V1: Lauren Henry V2: Junior Niuqila V2: I said you're hanging around bad boys, eh.

V2: Who? Don't ever talk that shit on the phone. Dickhead."

This conversation took place in May, over a month before the attempted robbery. The prospect of bank robbery is raised. Mr Niuqila emphatically indicates that he does not want to talk about it on the telephone. The main inference is that he was concerned, rightly as it happens, that the phone call may be intercepted. 78 Date of call: 20/06/2005: "Time of call: 21:28:49

Legend: V1: Tuifua V2: Niuqila V3: Female (speaking in background)

V1: What do you call, um we'll bring it, we'll um, it's, it's, it's ashstayed (stashed) in an admay (mad) place.

V2: Yeah, no 'cause I got to, I'm gunna ellitsay (sell it)

This call relates to a stolen car, which has been placed in a secure spot. The appellant's co-accused discuss selling the car but Mr Tuifua thinks that it should not be sold but that it should be used in the bank robbery. 79 Date of call: 22/06/2005: "Time of call: 19:51:45

Legend: V1: Tuifua V2: Manoa

V1: You know what? Do you want to just wait for the weekend and we'll wait for that one. You know the one in Blacktown?

V1: You know what I mean, it's just easier. 'Cause I don't want to, you know what I mean? 'Cause we got no ettypay (petrol) or nothing.

V2: Ah, up to youse 'cause I, I've been just moving round this thing man.

V2: Last Night I went to move it, friggin' this arcay (car) fully parks right behind it man. You understand, I fully pissed off."

It was alleged by the Crown that in this conversation the two co-accused on the evening of 22 June 2005 are discussing whether to keep the car. They decide to wait until it is time to do 'the one in Blacktown'. This conversation is taking place a little over a week before the attempted robbery. 80 Apart from those conversations there are various telephone conversations in which the appellant participated and which directly implicate him in the organisation of the robbery: "Date of call: 07/06/2005 Time of call: 23:42:31

Legend: V1: Cliff Robinson V2: The appellant

V2: When you drive, when you drive down to the bottom of the street…

V2: Right? You know, just, you know at the stop sign?

V2: Yeah. Go for a walk down there and have a look.

V1: All right. I'll go down there. I'll drive in a while.

V1: I'll go in a sec. I mean I'm just gunna drive there, man. I'm not walkin' anywhere.

V1: Yeah. I'll watch him. I'll fuckin' - sweet, all right?

V2: Don't let him follow you home. Hey Cliff, 'cause every time you leave home they'll be, they're gunna, they're gunna follow ya.

V1: Yeah, I think they already know, mate. Fuck. (Giggles)

V2: Yeah but I'm just saying, just in case they don't know: just in case they just like spotted ya and they haven't really jerried on."

This conversation indicates that the appellant is aware that Mr Robinson, one of the co-accused, is under police surveillance. He advised Mr Robinson to be careful because the police may not really know what is going on. 81 Date of call: 16/06/2005: "Time of call: 14:59:08

Legend: V1: The appellant V2: Niuqila

V2: Um, you, you still got my um, oveglays (gloves) eh?

This conversation occurs on June 16 2005. Niuqila asked the appellant if he still has gloves for him. 82 Date of call: 27/06/2005: "Time of call: 19:46:05 Legend: V1: Robinson V2: Tiufua V3: The appellant

V3: Oy, you ring him and you ask him, well who, who the invitation are for the party, you know what I mean?

V3: Well you ring him and you tell him to ring me. Make sure

V3: 'Cause it's, it's not the, it's not my party, you know what I mean? So you ask…

V2: Yeah I, I'll ring you back, I'll ring you back.

In this conversation the appellant is asking the co-accused Tiufua to make sure that he is invited to the 'party'. The Crown's case was that the term party was a code word for the bank robbery. I am satisfied that it was. Although the co-accused Tiufua tells the appellant that he is invited, the appellant is concerned and asks the co-accused to make sure. 83 On 27 June 2005 a telephone call between Tuifua, the appellant, Robinson and Niugila was intercepted. The transcript of that call is at [41] above. I am satisfied that the conversation regarding Pam should be interpreted as a conversation about a car, namely the Porsche. This conversation although in code was about disposing of the car. 84 Date of call: 29/06/2005 "Time of call: 20:27:41

Legend: V1: Tuifua V2: The appellant

V2: Um not, do me a favour and yourself and favour.

V2: Yeah, ring him and, um ask him for the, the, the lubricant …

V2: Because I don't want, I don't think he'll fuckin', he'll give me it. …

V2: All right, well look, look I'm gunna go and ask him and if we get knocked back…

This call occurred on the June 29 2006, 2 days before the attempted robbery. The Crown submitted that this is one of several conversations in which the appellant was involved relating to obtaining tools for the robbery. The Crown case was that "the lubricant for the masturbator" was a reference to a weapon or weapons. The next call is seven minutes later: 85 Date of call: 30/06/2005 "Time of call: 02:34:41

Legend: V1: Robinson V2: Niuqila V3: The appellant

V3: Fuck. 'Cause I kept on uzzingbay (buzzing) and uzzingbay and wouldn't wake upiken (up).

V2: If you can't do it now, then you can't do it in the morning.

V3: That's why I'm, that's, that's what I was just about to say to ya, um, you reckon you can oitday (do it) at sixiken (six)

V2: Nah, I can't man. I don't want to fuckin' try and wake him up at six.

V3: All right, all right, I'll do it. I'll just do it now, I'll just keep harassing him, but if not, fuck I don't know, man. You know what I mean?"

The Crown's case was that this was a further conversation regarding obtaining tools for the robbery. This call occurs at 2:34 am on June 30 2005, the day before the attempted robbery. The appellant says he has difficulty obtaining "thingo" as the person would not wake up. It was submitted by the prosecution that "thingo" was a further reference to a tool to be used in the robbery. Both the appellant and Mr Niuqila agree that the appellant needs to keep 'buzzing' and knocking on the door because "[i]f you can't do it now, then you can't do it in the morning." Later, on June 30 2005 at 07:22:25, he says that he has to go back to get the 'thingo.' The appellant says that he was not able to obtain the "thingo" earlier because a woman got angry at the appellant for ringing at that time in the morning (see the following conversation). 86 Date of call: 30/06/2005 "Time of call: 07:22:25

Legend: V1: Tuifua V2: Niuqila V3: The appellant

V3: Yeah, 'cause I went there and I was buzzing and buzzing and buzzing and buzzing and they wouldn't answer, and then fuckin' when I, when I rang upiken, She spewed at me. She goes "What are you doing fuckin' ringing at this time in the fuckin' morning?" And this and that. I said "Can you please wake him up?" She goes "No, I'm not waking him up." She goes "Look at the fuckin' time …" and blah, blah, blah, blah, blah, blah. You know what I mean?

V3: She spewed at me, so I'm gunna have to fuckin' grab it today, for the arvo.

Date of call: 30/06/2005 Time of call: 20:21:45

Legend: V1: Niuqila V2: The appellant

V2: Yeah well, well when are youse gunna come back?

V2: All right see if you can do that so so we don't be driving around with that shit too late.

This conversation occurred at 8:21 pm on June 30 2005, the night before the attempted robbery. Once again that appellant is talking about the "thing" and he is worried about driving around with "that shit" too late. In the context of the previous conversations it can be inferred that the appellant is worried about driving around with some implement to be used in the attempted robbery. 87 The evidence of the co-accused Sinamoni strengthened the Crown case. Sinamoni gave evidence-in-chief that when he and others, including the appellant, were talking about Pam that they were talking about a car. He denied that he was present during the attempted robbery but was permitted to give evidence, without objection, in which he said that he recognised the appellant on the surveillance video taken on the morning of the robbery at 28 Boorea Street, Blacktown. He said "It looked like Mr Dodds, but I can't be one hundred percent certain." He stated that he had known the appellant for a couple of years before these events giving him the necessary familiarity with the appellant so that his evidence was either factual evidence or the opinion of an ad hoc expert (see the discussion in R v Drollett [2005] NSWCCA 356). 88 The appellant's DNA was found on a number of items. It was on a left hand glove found inside the red Corolla. In addition it was found on a balaclava that was located in Metella Road, about 60 meters from where the Corolla was found. It was also found on a piece of fabric cut from a T-shirt or garment of that type which could be used to disguise a person's face. The balaclava found on Metella Road was materially the same as those bought by Messrs Niuqila and Tuifua on 30 June 2005. 89 The identification of the appellant as one of the speakers in some of the telephone calls was made by Officer Murray. His conclusion was based in part on the fact that on 2 June 2005 the police stopped the appellant and Robinson at Double Bay and took their names. In an intercepted telephone call on 4 June 2005 the person identified as the appellant told Tuifua, in a phone call, that he had been pulled over by police. After surveillance had been carried out on the appellant and Robinson on 6 and 7 June 2005 in an intercepted call at 11.42 pm on 7 June 2005 the appellant and Robinson discussed that surveillance. As a result of the discussion Officer Murray terminated the surveillance. 90 In addition to these matters, as I have already related, the appellant was, pursuant to bail granted in Queensland, reporting to the Rocks police station and was subject to a condition that he undergo urine analysis. In an intercepted telephone call at 1.18 pm on 15 June 2005 the person identified as the appellant told Niuqila that he needed to "do a urine tomorrow or something and get the results back up to Queensland by Friday … they're going to pull my bail." In a further telephone call at 3.52 on 29 June 2005 the person identified as the appellant asked Tuifua to meet him at The Rocks because he "was late for reporting." 91 In addition when Sinamoni gave evidence he identified the appellant's voice on the recording of a telephone call. 92 The conviction was challenged by the appellant for a number of reasons. It was firstly submitted that the evidence of Officer Murray was unreliable. In particular it was submitted that he admitted that he had made a number of witness statements which he said exhausted the matters upon which he would give evidence. However, when giving evidence he spoke of matters not recorded in those statements. It was submitted that the Officer had only a limited prior opportunity to hear the appellant speak and furthermore, that there were errors in the voice attribution of the transcript of the various telephone calls. It was further submitted that his evidence was diminished by the fact that he did not use the services of an independent voice identification expert or use any equipment to make scientific comparisons of the voices. He accepted that there was always room for error in voice identification. 93 With respect to Officer Murray's evidence in relation to the Pig Latin code it was submitted that he sought no independent assistance with his interpretation of the conversation. It was submitted that there was room for misinterpretation. 94 The officer's conclusion that "snankos" meant "bank" was also criticised in the manner in which I have already discussed. It was emphasised that there was no other reference to "snankos" or a code for the word "bank" elsewhere in the transcripts of the many conversations. Accordingly it was submitted that even if the phone calls reflected a conspiracy there was no evidence which proved beyond doubt that the conspiracy related to a proposal to rob a bank. 95 It was emphasised that nowhere in the conversations where the appellant could be identified as a participant was there a discussion of matters relevant to the suggested armed robbery. The appellant was not involved in any conversation about obtaining a shortened shotgun. With reference to the conversation where "a masturbator" is referred to, it was submitted that this was ambiguous and could refer to any number of things used for any number of legal purposes. It did not necessarily relate to the alleged enterprise. 96 The appellant emphasised that there were some telephone intercepts where other persons apart from the appellant talk about planning an enterprise. There is discussion of a "job" and how they should get four people to come along. At one point the Crown submitted that the references to the appellant indicated that he would be one of those persons. However, the appellant emphasised that this does not demonstrate that the appellant was aware of what the other conspirators wished him to do. 97 With respect to the stolen Porsche motor vehicle, which the Crown alleged was referred to as "Pam" the appellant emphasised that his DNA was never found inside or outside the vehicle. This was the case notwithstanding that the Crown alleged the appellant was involved in its theft. 98 The appellant further submitted that there was no evidence that the appellant was present on 1 July 2005. None of the surveillance officers identified the appellant as being present. Evidence was given by Constable Amelia Herring that she had previously identified the appellant who appeared to her to be of Aboriginal appearance. No person of that appearance was identified by the surveillance officers as being present on 1 July 2005. 99 Both the video shown to Mr Sinamoni and the recording of his ERISP were in evidence. I have carefully examined both. Although the image on the video is not entirely clear I am satisfied that one person who was recorded as being present was the appellant. His hair cut and profile are important to my conclusion. The image of the appellant recorded on the ERISP would not indicate to an uninformed observer that the appellant is of aboriginal origin. 100 The appellant also criticised the utility of the DNA evidence. Ms Beilby, a DNA expert, indicated that the relevant items contained not only the appellant's DNA but the DNA of others. This was not surprising as other people would necessarily have handled them at various times. There was no evidence to indicate when the appellant's DNA may have been deposited on each item. It was submitted that because balaclavas are a common piece of clothing and can be used for riding motorbikes and camping it was conceivable that the DNA had been deposited in some innocent manner. 101 From the telephone calls it can be discerned that in the weeks preceding 1 July the appellant had been in the company of Robinson, one of the co-conspirators on many occasions. He was in Robinson's blue car, being the same blue car that was seen together with Robinson, in the early hours of 1 July outside Boorea Street. On some occasions in which he had been in the car with Robinson there were phone calls made to the appellant on Robinson's mobile phone. On those occasions the phone was passed to the appellant. It was in those conversations that the details in relation to the proposed robbery to which I have earlier referred were discussed. 102 The lack of a confirmed sighting of the appellant by someone present on 1 July 2005 requires careful consideration. However, given the efforts by the participants in the enterprise to mask their identities this is not altogether surprising. To my mind the evidence of Sinamoni is significant. It is confirmed by my own examination of the video recording. Of particular significance is the evidence in relation to the DNA on the items retrieved by the police. When all of this evidence is considered together with the transcript of the various conversations I am in no doubt that the appellant was party to the alleged conspiracy. 103 I am also satisfied to the requisite standard that the participants were intent upon robbing the Commonwealth Bank and only because of the intervention of the police did that robbery fail. 104 In my judgment the prosecution proved its case against the appellant beyond reasonable doubt. The verdict was open to the jury and was neither unreasonable nor, having regard to the evidence, was it one that cannot be supported.

Sentence 105 The appellant was sentenced to a total term of 8 years imprisonment with a non-parole period of 5 years. By the time he was sentenced Lee, Niugila and Tuifua had been sentenced. Lee was sentenced to a total term of 6 years and 9 months with a non-parole period of 3 years and 9 months. Niugila was sentenced to a total term of 7 years and 6 months imprisonment with a non-parole period of 4 years and 9 months. Tuifua was sentenced to an overall term of 6 years and 9 months imprisonment with a non-parole period of 3 years and 10 months. They were sentenced by Norrish DCJ. 106 Sinamoni who was sentenced at the same time as the appellant was sentenced to a total term of imprisonment of 8 years with a non-parole period of 5 years. 107 The appellant submitted that the trial judge made a number of errors when he was sentenced. It was submitted that a number of findings of fact made by the sentencing judge were erroneous. Beyond these matters it was submitted that her Honour placed inappropriate reliance on the guideline judgment in Henry (R v Henry 1999 46 NSWLR 346) and failed to have appropriate regard to previous decisions in relation to sentencing for conspiracies. Finally it was submitted during the course of the hearing of the appeal that the appellant's sentence was excessive having regard to the sentences imposed on the co-offenders. 108 There were four factual findings which were challenged by the appellant. They were expressed as follows:

(a) finding as a fact on sentence that the applicant was present on 1 July 2005 in the absence of any evidence in the trial to support such finding; and

(b) finding that the applicant must have known that the firearm was in the sports bag, without reference to making such finding beyond a reasonable doubt and on which evidence such a finding was made; and

(c) finding that the applicant's DNA was on a balaclava which was found in red Corolla; and

(d) finding that the applicant played an equal role to all of his co-offenders in the conspiracy in the absence of any evidence to support such a finding beyond a reasonable doubt. 109 I have previously reviewed the evidence in the Crown case with respect to the appellant. To my mind each of the findings of fact now challenged was available on the evidence before her Honour. Although there was no evidence from a surveillance officer identifying the appellant as being present on 1 July the inference that he was the person in the Ford Laser was very strong. The finding that the appellant must have known that the firearm was in the sports bag was available having regard to his involvement in the various phone calls and his close association with the co-conspirators during the course of the planning of the event. 110 Having regard to the material in the telephone intercepts and the coordinated participation of each of the co-conspirators in the events of 1 July a finding that the appellant had an equal role in the conspiracy with the other offenders was clearly open to her Honour. 111 Her Honour said that a balaclava with the appellant's DNA was found in the red Corolla. This was not the case. In fact the balaclava with DNA was found in the gutter in a street nearby to where the red Corolla was pulled over. However, the available inference was that it had been discarded from a vehicle during the course of the attempted and partially successful dispersion of the conspirators following the interception by the police. The error by her Honour in finding that the balaclava was actually in the red Corolla is of no significance. To my mind there is no other explanation of the presence of the balaclava in the location in which it was found but that it was associated with the appellant's activity as a co-conspirator on the relevant day. 112 When sentencing the appellant and Sinamoni her Honour indicated that she would have regard to the dicta from this Court in Henry's case. Her Honour concluded that by reason of the criminal record of the appellant, the lack of evidence of any addiction to drugs and recognising that there had been no plea of guilty a sentence greater than that considered in Henry's case was appropriate for the appellant. There was no error in her Honour's approach. 113 It is obvious that the nature of the offence contemplated in Henry was in some respects different to that committed by the appellant. Nevertheless Henry involved an armed robbery and it was appropriate for her Honour to be mindful of what this Court said in that case when seeking to establish an appropriate sentence in the present case. Although her Honour referred to Henry she was careful to identify the fact that she was sentencing the appellant and co-offenders for a conspiracy to commit an armed robbery. 114 Her Honour concluded that although the matter was serious it was not a conspiracy at the top end of the range. The serious elements of the offence were reflected in the fact that it was planned over a period of weeks and a sawn-off loaded shotgun was to be utilised. Although the conspiracy was planned her Honour formed the view that it was not planning of a high order, many matters were left to chance. Furthermore there was no evidence of observation of the target premises for any period before the robbery which may have been expected if it had been carefully planned. 115 Her Honour concluded as was clearly the case that the robbery was timed to occur at opening time. This would have imposed a risk to staff but perhaps fewer customers than might have been expected at other times of the day. The target bank was located in an industrial area where it was probable that there would be less pedestrian movement than if it had been in a shopping centre or commercial area. 116 Her Honour was careful to identify the aggravating factors ensuring that she did not have regard to a factor referred to in s 21A which was otherwise an element of the offence. This is particularly important in relation to a conspiracy charge which of its nature involves more than one person. Her Honour was also mindful of the fact that a conspiracy must involve a degree of planning. Her Honour said: "when looked at as an armed robbery simpliciter, that being the indicative way of viewing a conspiracy to commit armed robbery. It is made somewhat more serious because it was a planned bank robbery and there was use of a shortened firearm but this latter consideration I am not entitled to elevate as a consideration more appropriate, because this was not charged as a conspiracy to commit an aggravated armed robbery with a dangerous weapon, and thus care must be exercised to avoid breaching the De Simoni principles" De Simoni v R (1981) 147 CLR 383 at 389; 35 ALE 265 at 268. 117 Her Honour also diminished the objective seriousness of the offence by reason of the fact the robbery did not actually take place. This, of course, was fortuitous and a result of the police intervening. Her Honour accordingly concluded that it was an offence in the middle range of seriousness. 118 The maximum penalty provided for the offence is a term of imprisonment for 20 years. The subjective circumstances of the appellant were recognised by her Honour. He has a lengthy criminal record. At the time of sentencing he was aged 25 but was aged 23 at the time of committing the offence. He has convictions for possessing house breaking implements, goods in custody, possessing a prohibited weapon, motor vehicle offences including larceny and driving offences, malicious damage to property and attempting to steal a motor vehicle. He had previously received prison sentences for larceny of a motor vehicle and a suspended sentence for attempting to steal a motor vehicle. He has also been sentenced for assaulting a police officer in the execution of his duty. 119 The psychological evidence indicated that the appellant had a dysfunctional background as a child. Life has not been easy for him. His parents were users of drugs and alcohol to the point of addiction. His father has been in and out of prison. He was raised by his maternal grandparents. 120 The appellant has two children who at the time of sentencing were aged 3 and 12 months. However, he does not live with their mother and appears to have had limited involvement with his daughter. 121 The appellant was expelled from school in Year 8 and although he has done a bar course and a course in spray painting he has never been in continuous employment. He has a previous history of excessive use of alcohol being a binge drinker although her Honour accepted that this was not a problem at the time of sentencing. He has been a user of cannabis, methamphetamines, cocaine as well as heroin. Her Honour found that he had stopped using these drugs before he committed this offence. Her Honour found that the appellant was experiencing stress and anxiety within the prison system. At the time of the commission of the offence the appellant was on bail from the Supreme Court of Queensland for offences including an offence of attempted armed robbery. Her Honour had regard to the fact that he was on bail as an aggravating feature of the offence. 122 Her Honour was also careful to have regard to the remarks on sentence by Norrish DCJ when sentencing Lee, Niugila and Tuifua. Her Honour was careful to consider issues of parity and after carefully analysing his Honour's remarks concluded that the sentences imposed on Niugila, Lee and Tuifua were based on a starting point of 9 or 10 years which her Honour believed was excessive. Her Honour remarked that sentences of 8 to 9 years are at the very top of the range for offences of armed robbery. She justified this decision by reference to the statistics of the Judicial Commission. 123 There is a potential difficulty with her Honour's analysis although it does not justify the appellant's submission in the present case. The offence of armed robbery contrary to s 97(1) of the Crimes Act carries a maximum penalty of 20 years imprisonment. Although the statistics may indicate that sentences significantly less than the maximum have been imposed for those offences captured by the statistics this will not define the very top of the range. That is defined by the maximum term. Although consistency in sentencing is of fundamental importance (Lowe v R (1984) 154 CLR 606 at 610; 54 ALR 193 at 196) the utility of the statistics collected by the Judicial Commission should not be misunderstood. If, as her Honour concluded, the statistics indicate that sentences greater than 8 or 9 years have not been imposed this may indicate that offences justifying a sentence closer to the maximum have not been recorded. However, the maximum sentence for the most serious offence remains that provided by the legislature. 124 Her Honour ultimately concluded that the sentences imposed by Norrish DCJ were excessive and her Honour was not bound to follow them. Her Honour concluded that being an offence within the middle of the range of seriousness but committed while the appellant was on conditional liberty, and with a history of repeat offending, a sentence greater than that imposed by Norrish DCJ was appropriate. 125 I am satisfied that it was open to her Honour to conclude that the circumstances of this offence were more serious than the offence considered in Henry. The appellant was not a young offender with little or no criminal history and the offence was committed whilst he was on conditional liberty. Her Honour was required to impose a sentence that properly reflected the objective seriousness of the offence and the need for general deterrence. Her Honour accepted that there was a need for extended supervision of the appellant following his release and accordingly found special circumstances. 126 Having regard to these various matters I am satisfied that the sentence which her Honour imposed was appropriate. It has not been demonstrated that a lesser sentence was warranted or should have been imposed.

Orders 1. The appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted but appeal dismissed. 127 SIMPSON J: I agree with McClellan CJ at CL. 128 HARRISON J: I agree with McClellan CJ at CL.

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