GAR v R

GAR v R - [2010] NSWCCA 164 - NSWCCA 2010 case summary — Zoe

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The Crown Case 11 It was the Crown case that some time after 1.00 am on Monday, 11 July 1988, the Appellant, with an accomplice, kidnapped at gunpoint Ms Lee Stephens and Ms Beverley Santi, two female employees of the Queanbeyan Leagues Club (Counts 2 and 3). Both offenders wore balaclavas covering their faces. One carried a pistol and the other a sawn-off shotgun. Ms Stephens and Ms Santi were the last persons to leave the Queanbeyan Leagues Club as it had closed for the night. When the women explained to the offenders that they did not have keys to the Club, they were forced into Ms Stephens' blue Daihatsu Charade vehicle which was parked in the staff car park. The four persons then travelled to the home of the secretary/manager of the Queanbeyan Leagues Club, Mr Don Furner. During the trip, the firearms possessed by the offenders remained pointed at the women. 12 Upon arriving at the Furner home, the offender who had been driving took Ms Stephens to the front door and banged on it. When Mrs Marian Furner came to the door, she found the masked and armed man with a very frightened Ms Stephens. Mrs Furner tried to shut the door and ran to call "000". The offender then kicked the door in. By this time, Mr Don Furner had woken up and came to the scene of the commotion. He crash tackled the offender, fought him and held the offender's shotgun across his throat. The other offender (who had remained in the vehicle with Ms Santi) then came to the house and pointed his firearm at Mr Furner and the fight stopped. Threats were made to Mrs Furner, her son, David Furner, and Ms Santi, who were told not to call the police. 13 The offenders then drove Mr Furner (Count 4) and Ms Stephens to the Queanbeyan Leagues Club, forcing their captives to let them into the Club building. Mr Furner was instructed to open the safe, but he was unable to do so. The offenders became agitated and settled for a box containing the takings for the weekend's football at Seiffert Oval, which was estimated to contain between $35,000.00 and $40,000.00, of which approximately $18,000.00 to $22,000.00 was in coins (Count 1). 14 Mr Furner's family and Ms Santi, who were left behind at the house, had been warned not to call the police or "drastic action" would be taken. 15 After taking the money, the offenders drove off from the Queanbeyan Leagues Club, leaving Mr Furner and Ms Stephens behind, but taking Ms Stephens' vehicle as a getaway car (Count 5). Later that morning, Ms Stephens' car was found abandoned not far from the Queanbeyan Leagues Club. A black balaclava was found in the car, as was a ladies' handbag and two purses. A bloodstain was found on the front driver's seat cover which, when analysed, was found to match the Appellant's DNA profile. The money was never recovered. 16 It was generally accepted that one of the men involved in the robbery and kidnapping was shorter than the other man. It was the Crown case that the Appellant was the shorter man who drove the car, held the gun on Ms Stephens, struggled with Mr Furner and prodded at Ms Stephens' back when they were running to the front of the Queanbeyan Leagues Club to gain access to the Club. 17 ER gave evidence in the Crown case that the Appellant had suggested a holiday in the Snowy Mountains for a few days in July 1988. She made telephone enquiries about cabin accommodation, which proved too expensive, and they went instead to Queanbeyan. Tony Davis and Phillip Russo, friends of her husband, went on the trip with them, but in a separate vehicle. They booked into the Queanbeyan Hotel. The Appellant and his wife were accompanied by their two-year old son, AR. 18 ER gave evidence that, earlier on the evening of the robbery, the Appellant and his two friends left the Queanbeyan Hotel wearing dark clothing, tracksuit pants and tops. The men had left a police radio/walkie talkie turned on, which scanned the police radio. According to ER, when the Appellant left he had two firearms, a walkie-talkie, balaclavas, plastic gloves and ammunition for the guns in a sock. 19 ER gave evidence that in the early hours of the next morning, the three men returned to her Hotel room in great panic. The Appellant yelled "We've got to get the fuck out of here", ordered her to pack up and within five to 10 minutes they had left. He provided truncated details of what had occurred, including reference to the kidnapping of a woman and Don Furner, and that there had been a fight at the Furner home. ER observed that the offenders had a box containing a large amount of coins and notes. Before the Appellant and his family drove off in one direction, and the two other offenders in another, the Appellant took a quantity of notes. He drove at high speed south and along remote rural roads. The other men took the box containing the coins with them. 20 According to ER, the Appellant drove to a property near the Victorian border to inspect a horse. By reason of a prior arrangement, he met there a friend, Dianne Dawson, who had travelled from the Central Coast and knew of the horse's potential. Both Ms Dawson and the Appellant were horse enthusiasts, and together they bought it with the aim of reselling it at a later time for profit. ER gave evidence that either the total cost of the horse, or her husband's half-share was $12,500.00. In fact, the total cost of the horse was $25,000.00. The Appellant paid his share in cash with notes in bundles "with elastic bands", being his proceeds from the robbery. 21 According to ER, some time later, Mr Davis and Mr Russo visited the Appellant at his home on the Central Coast. ER made breakfast for them whilst they bragged about their exploits during the robbery, including a statement from the Appellant that there was not as much money at the Club as they were expecting.

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The Defence Case 22 In evidence before the jury, the Appellant denied that he was involved in the robbery of the Queanbeyan Leagues Club or had kidnapped anyone. However, he did admit that he had disposed of Ms Stephens' car after he was paid by Mr Davis and Mr Russo "to get rid of it". The Appellant's version of events was that he and his two friends, Tony Davis and Phillip Russo, happened to be at Queanbeyan at the time of the offences, the Appellant's family having set out for a holiday and Mr Davis and Mr Russo having asked to tag along. Mr Davis and Mr Russo drove down in a panel van whilst the Appellant and his family travelled in a separate car. 23 The Appellant claimed that he saw Mr Davis and Mr Russo at breakfast on Sunday, 10 July 1988, but did not see them again until he was in the car park of the Queanbeyan Hotel around 1.30 am on Monday, 11 July 1988. The Appellant said that, at that time, he was taking his bags down to the car in order to make an early start. Mr Davis was driving a blue car (Ms Stephens' car) whilst Mr Russo was driving the panel van. Mr Russo got out of the van and helped Mr Davis get a heavy wooden box out of the car which was transferred to the van. The Appellant asked them to whom the blue car belonged, and was told by Mr Russo "No one's but I'll give you a grand to get rid of it". Mr Davis then pulled his hand out of the box and gave the Appellant a handful of $20.00 notes, which amounted to $2,000.00. 24 The Appellant claimed that he took the money and went back inside the Hotel and told his wife that he had been offered some money to get rid of the car and not to worry about putting on his bandages. The Appellant said that he had been injured in a motorcycle accident about 10 days prior to going to Queanbeyan. The injuries included being "staked" in the buttocks, gravel rash and a sore right shoulder and the wounds were about to be bandaged at the time he took the bags down to the car. It was the defence case that this served to explain the presence of the Appellant's blood in the car. The Appellant also said that his arm may still have been in a sling on 11 July 1988, as his shoulder had collapsed in the motorcycle accident, which would have made it awkward for him to drive a car. 25 The Appellant claimed that he drove the blue car a few streets away and wiped it down to remove fingerprints. He said that he had no idea that he had left the car behind the Queanbeyan Leagues Club where the robbery had occurred.

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The Queanbeyan Leagues Club Trial 31 There is one area of evidence adduced at the hearing of the appeals which bears directly upon the Queanbeyan Leagues Club trial. In an affidavit sworn 13 October 2006, the Appellant stated that a conversation had taken place on 26 March 2006 between ER and himself during a contact visit at the Goulburn Correctional Centre. 32 We accept that this evidence constitutes fresh evidence in accordance with the principles summarised by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at 427-428 [63]. This evidence involves an alleged conversation between the Appellant and ER on 26 March 2006, some three years after the trial. It was not available to the Appellant at the time of the trial, actually or constructively. Of course, the next issue is whether the Appellant's evidence with respect to this conversation is credible or at least capable of belief or is plausible, an issue to which we now turn. 33 The Appellant alleges that the following conversation took place during the contact visit at the Goulburn Correctional Centre on 26 March 2006: "I said, "How are AR and E?" ER said, "AR is fine but E fights with me terribly over you." I said, "Well you shouldn't have had her verbal me then." ER said, "You deserve everything I did for what you did to me. I've had years of abuse from you." I said, "What has that got to do with loading me up with the Canberra Raiders and Criterion Hotel robberies? You verballed me deluxe on the both of them." ER said, "I may be wrong about the Criterion Hotel but I remember distinctively being in that old hotel in Queanbeyan." I said, "The same as you remember while we were staying me coming back late and ranting and raving about Don Furner and putting a gun to your head." ER said, "We were down there with Tony and Phil. I don't remember the detail but I'm positive we were there and you would have had something to do with it." I said, "That's not what you told the police. You said I came in around 2am screaming how I had kidnapped people and fought footballers and Don Furner and that I put a gun to your head because you told me that you heard our rental car registration being circulated over the scanner. That's what you swore in your statements and gave evidence on." ER said, "There were so many I can't recall one from the other." I said, "It doesn't stop there. You said that while I was snorting cocaine with Tony and Phil I went through chapter and verse of the Canberra robbery boasting about how I fought Don Furner and footballer and that there was a party at the time." ER said, "You did snort cocaine in our kitchen with Tony & Phil." I said, "Yes but it was before we went to Canberra with Tony and Phil. You made that conversation up from start to finish to suit your own agenda." ER said, "Yes I told you not to cross me" I said, "Cross you, what about all our friends that you involved with your lies. Poor Normie would be turning in his grave. Noel Carroll got us that money in good faith and not only does he not get his money back, you drag him into your web of lies. Val and Ian Harley are beautiful people and you even verballed them. Donny even uncle Andy got dragged into it, not to mention Di and the Bloomsfields from Victoria. God ER aren't you ashamed?" ER said, "Of course I am but one lie just led to another and another." I said, "I know you can't remember, but you think I did rob the Canberra Raiders don't you?" ER said, "Yes I can remember us being at that old Hotel when it happened." I said, "We were there but I was injured from smashing my bike and couldn't have been involved even if I wanted to." ER said, "We were there though." I said, 'Yes but you have events mixed up. Firstly I have never pointed a gun at you in my life. However you remember it was winter and very cold when you AR and I were staying in a hotel. AR was just a toddler and every time we went out of our room he would take off to the lift and would want us to pick him up so he could push the button to start the lift. Then when the lift opens on the ground floor AR would run from the lift into the gift shop that was located in the foyer just across from the lift and grab an expensive stuffed animal and we would buy it for him. I think he had 3 or 4 by the time we checked out. I'll bet you still have them." ER said, "Yes they are beautiful." I said, "Well then do you remember me coming late one night while we were there and you telling me that our rental car registration had been circulated over the scanner, I said that I had heard it and it was nothing to worry about." ER said, "Yes that's the time I'm talking about and we were in Canberra." I said, "I'm not prepared to say where we were but it was nothing to do with the Canberra Raiders robbery and there is no lift or gift shop in the old Queenbeanne [sic] Hotel and I never left the room for more than a couple of minutes without you the night we stayed in Queenbeanne [sic] and no rental car we had was circulated and neither did I do any robbery. So can you still swear that I went out with Tony and Phil and robbed the Canberra Raiders coming back to the Queenbeanne [sic] hotel in the early hours, putting a gun to your head and screaming about Don Furner and footballers and kidnapping while you explained to me our rental is being circulated on the scanner?" ER said, "No"." 34 It may be seen that parts of this alleged conversation touch upon the Queanbeyan Leagues Club offences in such a way as to suggest that ER accepted, in one way or another, that her evidence at trial had not been entirely truthful or accurate. 35 Under cross-examination in this Court, the Appellant stated that he had asked ER to visit him because he was "trying to encourage her to tell the truth" (CCA, T28, 28 April 2010). He asserted that ER "was looking for money" (CCA, T28). He said that during the visit, he and ER discussed money and the children and that ER wanted money from him. He said that he had given her the impression that he had come into money from a wealthy benefactor in the United States of America, a suggestion which he acknowledged was an invention (CCA, T28). He said that he made notes of the conversation with ER on 26 March 2006, but that he no longer had the notes (CCA, T38). He explained that he could not keep a "lot of paperwork" in his cell (CCA, T39). He said that he may have sent the notes or a draft to his solicitor, Mr Ross Hill (CCA, T39). He agreed that it took seven months to swear an affidavit concerning the alleged conversation, explaining that "gaol is a slow place, it takes a lot of time to do things" (CCA, T29). 36 The Appellant agreed that he had a telephone conversation with ER on 12 November 2006 in which he accused her of "loading him up" in relation to the Queanbeyan Leagues Club robbery, but not the Criterion Hotel robbery (CCA, T37). He could offer no reason as to why he had not alleged in the telephone conversation that ER had loaded him up concerning the Criterion Hotel matter (CCA, T37). The Appellant rejected the suggestion that during the 26 March 2006 contact visit, he had said words to the effect that ER could "name [her] price" to change her evidence (CCA, T31). He rejected the suggestion of the Crown Prosecutor in cross-examination that the conversation alleged during the contact visit on 26 March 2006 was a complete fabrication on his part (CCA, T32). 37 An affidavit of ER sworn 29 March 2010 was read by the Crown at the hearing of the appeal, and ER gave oral evidence as well before this Court. ER was interviewed by police for the purpose of the appeal on 21 June 2007. In her affidavit, she said that the answers given in the transcript of the interview of 21 June 2007 were true and correct to the best of her recollection. She was asked in the interview concerning the Goulburn visit on 26 March 2006 (Q/A45-Q/A51): "Q45 Ok. Did you visit your husband in prison in March, 2006? A Is that in Goulburn?

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G: Oh well get married for god's sake I feel sorry for the person who's going to marry you. " 39 It will be observed that ER denied in this recorded conversation having given false evidence against the Appellant, and made statements supportive of her account that it was the Appellant who had offered her money during the 26 March 2006 visit to withdraw her evidence against him. 40 In evidence before this Court, ER denied that she had given false evidence at the trial for the Queanbeyan Leagues Club offences (CCA, T97, 29 April 2010). In the judgment concerning the sexual assault appeal, the Court referred to ER's evidence before this Court. ER said that she had given false evidence, including false alibis, in earlier criminal proceedings against the Appellant (CCA, T103). She said that, following his sexual assault of her in January 2002, which followed their divorce, she decided that she would reveal to the authorities the criminal activities of the Appellant, including the Queanbeyan Leagues Club robbery and the Criterion Hotel robbery. 41 Whilst Mr Dalton SC, for the Appellant, sought to rely upon ER's sudden willingness in 2002 to give evidence adverse to the Appellant as being indicative of bias and a desire to harm the Appellant by false evidence, the competing and more compelling explanation is that ER, having been sexually assaulted by the Appellant, determined to tell the truth with respect to his past criminal activities. Although it could well be observed that she had strong feelings adverse to the Appellant in taking this course, the difficulty for the Appellant in this Court is that this explanation provides a cogent foundation for a finding that ER was giving truthful evidence, albeit adverse to the Appellant. 42 The evidence of ER in this Court touched upon the Queanbeyan Leagues Club matters. Mr Dalton SC challenged ER's account concerning the circumstances in which she visited the Appellant at Goulburn on 26 March 2006. ER asserted that, on a prior occasion when she had visited the Appellant in custody at the John Morony Correctional Centre (when ER was about three months' pregnant with their son, AR), the Appellant had broken her finger by bending it back until it broke (CCA, T107). We observe that AR was born in 1986. The line of questioning suggested to ER that she would not likely have visited the Appellant in custody in March 2006 against this background unless she saw it in her interest to do so. ER maintained that she had visited the Appellant in March 2006 because of repeated requests by him that she should do so. 43 ER testified in this Court that she had visited the Appellant at Goulburn on 26 March 2006 because he had said that he had "an important family thing" to discuss with her (CCA, T120). She felt "obliged to go to see him" (CCA, T121). She said that she did not believe that she stayed very long once the Appellant revealed why he wanted to see her (CCA, T122). ER said that she "wasn't happy to go to see him" but "reluctantly visited him" (CCA, T120, 122). She acknowledged that she had complied with the Appellant's request that she come alone, but observed that Goulburn was a maximum security prison (CCA, T122). ER denied that she visited the Appellant on this occasion in an attempt to "strike a deal" with him and maintained that it was the Appellant who offered her a "very large amount of money" to change her evidence "not to the truth, to tell lies" (CCA, T123). ER did not accept the accuracy of the Appellant's account of the comments on 26 March 2006 (CCA, T128). She was adamant that it was the Appellant who was attempting to bribe her to give false evidence (CCA, T131). 44 Mr Dalton SC pressed ER concerning the occasion when she first alleged to any police officer that the Appellant had offered her a bribe on 26 March 2006 to give false evidence concerning, amongst other things, the Queanbeyan Leagues Club robbery (CCA, T130-134). ER said that she was sure she had contacted the police and told them but was unsure of when she did so (CCA, T134). 45 There is a direct conflict between the evidence of the Appellant and ER concerning the terms of the conversation at the Goulburn Correctional Centre on 26 March 2006. An important piece of evidence on this question is the recorded telephone conversation of November 2006 which, if anything, supports ER's account and not that of the Appellant. We do not consider that the Appellant's account of the conversation is assisted materially by the submission that it was improbable that ER would visit the Appellant at all in March 2006 having regard to the history of violence by the Appellant on her during a prison visit, unless ER considered that it was to her advantage to visit him at that time. Nor do we consider that the Appellant is assisted by any delay in ER complaining to the authorities of the bribe allegedly offered to her by the Appellant on that occasion. 46 Although the Appellant's evidence of the conversation of 26 March 2006 is admissible as fresh evidence, we are not satisfied that it is cogent, credible or plausible evidence in accordance with the principles in R v Abou-Chabake at 427-428 63]. The uncorroborated evidence of the Appellant does not constitute a firm foundation for this Court to find in the Appellant's favour on this ground and quash the Queanbeyan Leagues Club convictions. 47 We reject the sixth ground of appeal.

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Submissions of Parties 54 It was submitted for the Appellant that the reference by ER to "this particular matter" on several occasions would have suggested in the minds of the jury that the Appellant had committed another offence. It was submitted that the answer was unresponsive to the question originally asked and was gravely prejudicial so that there was a real risk of a miscarriage of justice. 55 It was submitted for the Appellant that the accumulation of non-responsive and highly prejudicial answers by ER was such that the Court ought to have discharged the jury, certainly on the second occasion when a discharge application was made. 56 The Crown submitted that the experienced trial solicitor acting for the Appellant addressed the Court with respect to the "particular matter" application submitting that it was a "possible inference" that the Appellant had committed other armed robberies. The Crown contrasts this submission at trial with the submission advanced on appeal that this was the only inference open. The Crown submits that a fair reading of the evidence of ER where the term "particular matter" was used supports the view that the "particular matter" in question was the issue whether or not Phillip Russo was the third person. The Crown submitted that there was no actual disclosure of other robbery offences or of any other criminal matters, nor was there disclosure of any inadmissible or prejudicial information. The Crown submitted that the trial Judge's view that the more likely inference was that Mr Russo was involved in other robberies rather than the Appellant was correct. It was submitted that the trial Judge was right in concluding that both the Crown and the defence solicitor were unduly sensitive about the possible prejudice because they knew the Appellant's criminal history whereas the jury was "in a totally different position" as they had no such knowledge (T229; page 2, judgment of 16 June 2003). 57 With respect to the second discharge application, the Crown submitted that the answers complained of occurred towards the end of a lengthy cross-examination which had become repetitive. It was submitted that the jury would have understood from the evidence of ER at this point that she had contact with Mr Francis or some other police officer about this matter prior to 18 or 19 January 2002. The Crown submitted that the exception taken by the defence trial solicitor to the use of the word "incident" by ER was properly rejected.

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Decision 58 This ground of appeal challenges the trial Judge's discretionary refusal to discharge the jury. The Appellant did not submit that her Honour had erred in principle in these rulings. Rather, challenge is made to her Honour's decision that the jury ought not be discharged. 59 The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the discharge of the jury that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440-441. Nevertheless, the duty of the Court of Criminal Appeal, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether in the circumstances, the result of the refusal to discharge the jury occasioned a risk of a substantial miscarriage of justice: Crofts v The Queen at 441; Qoro v R [2008] NSWCCA 220 at [29]. 60 In El Hassan v R [2007] NSWCCA 148, Hunt AJA (Latham J and myself agreeing) said at [15]: "The decision as to whether a jury should be discharged is a discretionary one. The trial judge is usually in a superior position to that of this Court in determining what should be done when material alleged to be prejudicial is brought to the knowledge of the jury. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining - in accordance with House v The King (1936) 55 CLR 499 at 504-505 - whether there has been an error in the exercise of that discretion; see Kanaan & Ors v Regina [[2006] NSWCCA 109] at [50], where this Court followed Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other matters at (2003) 57 NSWLR 55) in adopting what had been said by Brereton J in Regina v Ball (1960) 61 SR 37 at 41-42." 61 In our view, the trial Judge's approach to the application based upon the reference by ER to the "particular matter" was clearly open to her Honour. This is not a case where express reference was made by the witness or anyone else in the presence of the jury to some other offence or alleged offence which the Appellant is said to have committed. Rather, the argument is based upon a possible impression which the jury may have formed as to the commission of some other offence involving Mr Russo which, in turn, also involved the Appellant as a criminal participant. There is force in the Crown submission that the Crown Prosecutor and defence trial solicitor may have been overly sensitive to possible impressions given their complete knowledge of the Appellant's criminal history, and the apparent extent of criminal activity of the Appellant which ER raised with police in early 2002 following her complaint that the Appellant had sexually assaulted her. 62 The second application based on the accumulation of answers by ER, including reference to an "incident" did not involve any direct identification of any criminal activity on the part of the Appellant. This Court is in a position to infer, as no doubt were the trial Judge and the lawyers appearing in the trial, that the "incident" to which ER referred was the sexual assault upon her by the Appellant in early 2002 which triggered her willingness to reveal to police a range of criminal activities of the Appellant. However, the jury had only the cryptic and ambiguous reference to an "incident" which did not have the necessary vice which the Appellant seeks to attribute to it in this Court. 63 This is a case where the trial Judge was alive to the temper and atmosphere of the trial, and was very well placed to form a view as to what prejudicial effect the use of particular words would have upon the jury. No error in the exercise of discretion to refuse the discharge of the jury has been demonstrated in this case. 64 This Court must decide for itself whether in the circumstances the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. Having considered the evidence which gave rise to the discharge applications, viewed in the context of the trial, it has not been demonstrated that a risk of a substantial miscarriage of justice has been occasioned. 65 We would reject the first ground of appeal.

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The Crown also relies on the cicumstance that the accused was in Queanbeyan at the relevant time, that is at the time of the robbery. The general evidence that one of the robbers was smaller in height than the other robber. The evidence of Miss Santi that both men spoke with Australian accents whereas the evidence of [ER] and the accused was that Mr Davis spoke with a New Zealand accent. The fact that the accused paid cash for the horse in Victoria, the very same day as the robbery, that is 11 July '88 and that he paid in notes held in bundles by an elastic band consistent the Crown says with Mr Furner's evidence of how the takings from the Seiffert Oval had been bundled up. Sixthly the fact that Miss Stephen's car was located outside Mr Spackman's house, a very short distance from the Queanbeyan Rugby League Club, consistent on the Crown case with the two robbers abandoning it after using it as the getaway car and being picked up by another vehicle which no-one knew anything about, in other words a vehicle not associated with the events of that night as Miss Stephens car would have been." 67 In the absence of the jury, the Appellant's trial solicitor complained to the trial Judge that her Honour had attributed to the Crown a submission which had not been made concerning the evidence of Ms Santi "that both men spoke with Australian accents whereas the evidence of [ER] and the accused was that Mr Davis spoke with a New Zealand accent". It was pointed out that Mr Davis (who had a New Zealand accent) had pleaded guilty to this offence and that this was known to the Crown, but was not a matter which could be revealed to the jury (SU22-26). Application was made to discharge the jury because of this but her Honour declined to do so (SU26). 68 A little later, the Appellant's trial solicitor made further submissions concerning the accent issue and sought a direction to the effect that it was possible that Ms Santi was not accurate in relation to accents and that, before the jury relied on that, they ought be satisfied that Ms Santi could not have made a mistake (SU30). The Crown opposed the giving of such a direction (SU32). No direction to this effect was given.

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Submissions 69 It was submitted for the Appellant that the Crown had not addressed by reference to the accent issue as stated by the trial Judge. It was said that the Crown could not have made that submission given that Mr Davis had pleaded guilty to robbery and thus admitted that he was one of the two robbers. In these circumstances, it was submitted that it could not have been submitted by the Crown that both robbers spoke with Australian accents. 70 It was also submitted for the Appellant that the trial Judge had misrepresented the Crown case to the jury by referring to evidence that the two offenders committing the robbery had Australian accents and that Mr Davis had a New Zealand accent. It was submitted that this served to bolster the evidence of ER and undermine the evidence of the Appellant that he had only come into contact with Mr Russo and Mr Davis innocently after they had carried out the robbery. It was submitted that once her Honour had been informed of the fact that Mr Davis had pleaded guilty as being one of the two principal offenders, a fact accepted by the Crown at the Davis sentencing proceedings, then the failure to discharge the jury as requested constituted a grave miscarriage of justice. 71 In support of the second part of this ground of appeal, the Appellant submitted that the trial Judge had erroneously declined to give a further direction to the jury. 72 The Crown submitted that the trial Judge had referred correctly to the evidence of Ms Santi with respect to the accents of the offenders. Until the discharge application was made, the Crown observed that the trial Judge did not know that Mr Davis had been sentenced in 1989 by Pain DCJ on the basis that he had been the other robber. 73 The Crown submitted that there had been no change in the way the Crown had opened the case to that presented and closed to the jury. The trial Judge had accurately referred to the evidence of Ms Santi. The Crown noted that the Appellant's submissions did not suggest that cross-examination or the conduct of the defence case would have been any different or that there was prejudice caused by an inability to address the jury about the issue. 74 With respect to the second part of this ground of appeal, the Crown submitted that this was an entirely different application to the issue raised concerning the plea of guilty of Mr Davis to the robbery charge. In any event, the Crown submitted that the jury would have been alive to the possibility that Ms Santi may have been wrong about this, given the common experience that distinguishing a New Zealand accent from an Australian accent is often no easy task. Furthermore, the Crown submitted that it would have been clear to the jury that Ms Santi was under great emotional stress at the time of her ordeal. On any view of the matter, the Crown submitted that there had been no miscarriage of justice.

[72]

Decision 75 It is necessary to keep in mind the principles applicable where a ground of appeal challenges a refusal to discharge the jury (see [58]-[60] above). The Appellant's submission in support of this ground is similar to that where it is contended that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis for conviction which had not been relied upon by the Crown: Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at 127-129 [137]-[149]; Smale v R [2007] NSWCCA 328 at [79]ff; Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417 at 450-454 [197]-[212]. In the context of that class of ground of appeal, it has been said that the question to be considered by the Court of Criminal Appeal is whether there has been unfairness to the Appellant which gives rise to a miscarriage of justice by reason of the conduct of the trial, and which requires the Court's intervention. In assessing such a ground, it is appropriate to consider whether there has been any procedural or substantive unfairness to the Appellant: Clark v R [2010] NSWCCA 94 at [75]. 76 The appropriate starting point is that the trial Judge summarised accurately the evidence of Ms Santi concerning the accents of the robbers. This was evidence before the jury about which the Appellant had an opportunity to cross-examine and adduce evidence. Indeed, the Appellant gave evidence himself which bore upon the issue of accents. The trial Judge was not aware that Mr Davis had pleaded guilty to robbery until being so informed after the jury had been directed in the manner under challenge. The jury was not aware that Mr Davis had pleaded guilty to robbery. 77 The reference by the trial Judge to the evidence of Ms Santi was a matter arising from the evidence adduced at the trial which the jury was entitled to take into account in reaching its verdicts. The question is whether the inclusion of this matter in the summing up does in substance amount to the advancing of a contention adverse to the Appellant which he did not have a fair opportunity of meeting: Clark v R at [76]. 78 The fact that Mr Davis may have pleaded guilty at an earlier time (a fact not known to the jury) did not disentitle the jury from using the evidence of Ms Santi concerning the accents of the offenders for the purpose of reaching verdicts. It was open to the trial Judge to identify this piece of evidence as evidence which was relevant to the jury's determination. It has not been demonstrated that any procedural or substantive unfairness resulted to the Appellant because of the trial Judge's reference to this evidence as material capable of supporting the Crown case. It has not been demonstrated that their has been unfairness to the Appellant giving rise to a miscarriage of justice by reason of the conduct of the trial which requires the Court's intervention. The trial Judge's discretionary refusal to discharge the jury was open to her Honour in the circumstances. Having considered the circumstances giving rise to this discharge application, the Court is not satisfied that the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. The first part of this ground of appeal should be rejected. 79 With respect to the second part of this ground of appeal, it has not been demonstrated that the trial Judge erred in not giving an additional direction to the jury as sought. It has not been demonstrated that any miscarriage of justice resulted from this course. The second part of this ground of appeal should also be rejected.

[78]

You should bear in mind that even though no motive has been suggested to [ER] for her giving what the accused would say was false evidence against him, there is absolutely no obligation on an accused person to ever suggest why somebody might give false evidence against him. There is no obligation on an accused person in a criminal trial on any issue. People can act in a way for which there is no rational explanation and certainly no rational explanation that is apparent to an accused. Remember it is not for this accused to prove anything in this trial at all and that includes a motive for a witness, in particular [ER] , to give false evidence against him." 82 A little later, her Honour said to the jury in the course of directions concerning fact-finding (SU7-8): "For example, a decision made on the credit of the witness [ER] will obviously influence the way you find facts for the purposes of the charges that relate to her evidence, that is in fact, all of the charges. Further a finding of fact made in respect of one charge may influence your determination of another charge. So for example if you accepted [ER's] evidence that the accused said to her in the early hours of the morning on 11 July 1988 that he had, 'Just kidnapped a Sheila and robbed a club', that finding no doubt would assist you in your determination of whether the accused was the person who detained Miss Stephens, Miss Santi and Mr Furner in the early hours of that same morning. Similarly if you found that the accused was one of the two men who detained Miss Santi and Miss Stephens in the carpark in the early hours of 11 July '88, it would follow that you would find that he also detained Don Furner and robbed Mr Furner of the money, the property of the Queanbeyan Rugby League club, that is the Crown case is, it was the same two men throughout this entire incident." 83 Her Honour gave the jury the following direction concerning the delay between 1988 and 2003 when the matter came to trial (SU10-11): "One of the matters you do have to take into account when considering the evidence is the delay between the events of the 11 July 1988 and this matter coming to trial. Both the Crown and the accused are prejudiced by the period of almost fifteen years since 11 July '88. People's memories, for example, fade over a period of time. The accused has been placed at a disadvantage in that had this matter come to trial earlier he may have been able to bring forward witnesses. For example, Mr Jeffreys referred to Mr Webb, or he may have been able to adduce other evidence to support his account. You should bear this in mind during your deliberations that the delay may have resulted in substantial difficulties in the accused defending himself." 84 Her Honour directed the jury that the Crown case relied "very heavily" on the evidence of ER on the issue whether the Appellant was one of the two men who confronted the female staff members in the Queanbeyan Leagues Club and remained a participant in the robbery throughout the evening (SU18). 85 During an adjournment and after the directions referred to so far had been given to the jury, the defence trial solicitor sought a direction concerning delay by reference to Longman v The Queen and R v Johnston (1998) 45 NSWLR 362. Specifically, a "dangerous to convict" direction was sought (SU26-27). The Crown opposed such a direction being given (SU28). 86 Thereafter, her Honour said to the jury (SU32): "HER HONOUR: As I said to you before the break, members of the jury, the Crown case relies heavily on the evidence of [ER] , and at the end of the day you would need to be satisfied beyond reasonable doubt that what she said to you was a truthful account of the events on 11 July. As I say, the Crown says her evidence doesn't stand alone, it is supported by the circumstances that I have already outlined to you." 87 The trial Judge then reminded the jury of the defence arguments as to the evidence of ER and, after doing so, said to the jury (SU33-34): "As I said, you need to be satisfied beyond reasonable doubt that [ER] was telling the truth about the events of that night, and because she is such an important witness in the Crown case and because of the lapse of time you should look very carefully at her evidence." 88 In the course of summarising the addresses of the Crown and the defence at trial (SU36-40), her Honour referred to the defence submission concerning the possible effects of delay in the matter coming to trial (SU39-40): "Mr Jeffreys reminded you of the delay in this matter coming to trial and the difficulties the accused may have encountered in placing material before you, that is, that bank records may have been available, Budget may have had some records, Mr Webb may not have been deceased.

[79]

Submissions 89 It was submitted for the Appellant that the directions given by the trial Judge concerning the evidence of ER were inadequate. Although a direction under s.165 Evidence Act 1995 had not been sought expressly at the trial, complaint is made that such a direction was not given in this case. It was submitted for the Appellant that a s.165 direction should have been given as the involvement of ER with the offenders, on her account, put her squarely in the position of an accessory after the fact. Accordingly, it was submitted that she was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, a kind of unreliable evidence to which the statutory warning is directed under s.165(1)(d) or the Act. 90 Complaint is made concerning the failure of the trial Judge to give a "dangerous to convict" direction concerning ER's evidence. It was submitted that the matters raised in the summing up were so perfunctory as not to alert the jury to the defects in the Crown case and that a miscarriage of justice has resulted. It was submitted that the jury should have been told in this case why it was dangerous to convict, namely because the delay meant that the evidence of ER, the key Crown witness, could not be adequately tested. 91 The Crown submitted that no request was made at trial for a s.165 direction in this case so that Rule 4 Criminal Appeal Rules applies to this ground. It was submitted that s.165(1)(d) had no application to the circumstances of ER in this case: R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 548 [70]. In any event, the Crown submitted that a s.165(2) direction does not mandate any particular form of words to be used and that concerns have been expressed about the formulation of words "dangerous to convict": Robinson v R at 92-95 [4]-[19] (Spigelman CJ). 92 The Crown submitted that Rule 4 ought be applied directly in this case because the only defence application at trial was for a "dangerous to convict" direction, signifying that other directions relating to delay were considered to be adequate: R v ITA [2003] NSWCCA 174; 139 A Crim R 340 at 355-357 [92]-[97]. 93 The Crown submitted that the direction sought by the Appellant's trial solicitor completely overlooked the available corroborative material. The direction sought was predicated upon the jury relying entirely upon ER in relation to the matter.

[81]

Decision 96 The only application made at trial was for a "dangerous to convict" direction. No application was made by reference to s.165 Evidence Act 1995. Rule 4 has application to that part of this ground of appeal. 97 Although Ground 3(a) may be disposed of by application of Rule 4, it is appropriate to say something further about it in this case. Section 165 does not deal with unreliability of witnesses generally. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts dealing with certain types of evidence, or because there is a danger that the jury may overestimate the probative value of certain evidence: R v Baartman [2000] NSWCCA 298 at [62]; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at 321 [97]-[99]. 98 In this case, ER was the former wife of the Appellant. It would have been clear to the jury that there was no love lost between them at the time of the trial. The credibility and reliability of ER was challenged at trial. None of this required a s.165 warning, it being within the experience of a jury to understand the issues raised by this scenario: R v Knight [2005] NSWCCA 241 at [59]. 99 Section 165(1)(d) encapsulates what the common law described as an "accomplice warning", although it has been said that the word "accomplice" should not be used in any direction: R v Stewart at 329 [126]. 100 Considerable doubt has been expressed as to whether s.165(1)(d) extends to an accessory after the fact or to misprision of felony (the common law predecessor to an offence under s.316 Crimes Act 1900 enacted in 1990): R v Clark at 541-549 [53]-[73]. Any suggested criminal involvement of ER could only extend to these types of offences. 101 The fact that a witness falls within the scope of s.165(1)(d) (which has not been demonstrated in this case) does not necessarily require that a warning be given unless the evidence is of a kind that might be unreliable by reason of the witness falling within that category. Can it be said that any offence of which ER might have been convicted was one which would tempt her to exaggerate or fabricate evidence about the Appellant's guilt?: R v Clark at 548 [69]-[70]. This is the type of direction which would be given to the jury if s.165(1)(d) was engaged at trial. The answer to this question must be in the negative. 102 The Appellant complains in ground 3(a) that a s.165 direction was not given, although no such direction was sought. Section 165(2) creates a duty to give a direction, but it is only triggered by a request for a direction by a party. As there was no such request, then s.165(3)-(4) do not apply. There is an air of unreality in the submission that a s.165(1)(d) direction ought to have been given in this case. 103 In any event, although a warning in terms of the formulation "dangerous to convict" may be given as part of a s.165 direction in an appropriate case, a trial Judge is never under a duty to do so: Kanaan v R [2006] NSWCCA 109 at [217]; Robinson v R at 93 [8]. Further, as Spigelman CJ observed in Robinson v R at 95 [19], the use of the terminology "dangerous to convict" fails to give sufficient weight to the danger that a jury will regard the formulation as, in substance, an instruction by the jury to acquit, so that it is a formulation best avoided save in exceptional circumstances. 104 In our view, Ground 3(a) is without merit and, in circumstances where no s.165 application was made at trial, leave to argue it should be refused under Rule 4. 105 With respect to Ground 3(b), there was a substantial time gap between the offences in July 1988 and the trial in June 2003. The trial Judge gave the jury directions with respect to delay in the context of this trial (see [83] and [88] above). However, this is not a case where the Appellant was arrested and charged with the 1988 offences many years after the event. He had been arrested and charged with these offences at a much earlier time, but the Crown had no billed the matters in 1992. Accordingly, this is not a case where the Appellant was called upon to bring his mind to the relevant events, for the first time, many years later. 106 Further, it is necessary to view the evidence of ER in the context of the trial and the issues in the trial. It was the Appellant's case at trial that, although he did not participate in the robbery and detain for advantage offences, he was involved criminally in the immediate aftermath of those offences by disposing of a vehicle at the request of Mr Davis and Mr Russo. The evidence of ER was most important to the Crown case in implicating the Appellant as a direct participant in the robbery and detain for advantage offences. So much was made clear to the jury by the trial Judge. However, there was a significant volume of incriminating evidence, in addition to that of ER, before the jury. 107 Insofar as Ground 3(b) contends that the requirement to give a "dangerous to convict" direction in this case flowed from Longman v The Queen, it should be noted that such a direction is not a necessary part of a Longman v The Queen direction: Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 at 145 [180]. 108 In our view, this was not a case which required a "dangerous to convict" direction. In any event, it is noteworthy that the defence trial solicitor did not formulate a complete direction which ought be given in the context of this case. A bare direction that it would be dangerous to convict upon the evidence of ER would, in reality, beg the question. There was a considerable volume of evidence in addition to that of ER. Further, if what was actually sought was a warning that it was dangerous or unsafe to convict on the uncorroborated evidence of ER, then in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial Judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. As Gleeson CJ observed in Doggett v The Queen [2001] HCA 46; 208 CLR 343 at 347-348 [9], why would defence counsel invite that? What the defence sought at trial was a bare "dangerous to convict" direction which would attract the difficulties referred to by Spigelman CJ in Robinson v R at 95 [19], referred to at [103] above. 109 We reject Ground 3(b). 110 Accordingly, both legs of Ground 3 fail.

[83]

Submissions 111 It was submitted for the Appellant that the verdicts of guilty were unreasonable or cannot be supported on the evidence. Emphasis was placed upon a number of features of the evidence at trial. 112 It was submitted that, on the evidence, the money paid by the Appellant for the horse could not be connected to the proceeds of the robbery. With respect to ER's evidence concerning the police scanner, it was submitted that ER gave evidence of a scanner being left with her and that she heard, whilst the Appellant was away, a radio broadcast of the registration number and description of a vehicle. It was submitted that there were only two scanners and one was left at the Queanbeyan Leagues Club. It was submitted that the police had no information as to the car or its registration before it was found at the back of the Queanbeyan Leagues Club. The Appellant submitted that there was varying evidence from Ms Stephens, Ms Santi, Mr Don Furner, Mrs Furner and Mr David Furner concerning the size and weight of the robbers and that the descriptions given would not allow a positive finding that the Appellant was one of the two robbers. It was submitted that there were inconsistencies and improbabilities in respect of the evidence of ER as referred to in the closing defence address at trial. By reference to these various features, it was submitted for the Appellant that the evidence could not satisfy a jury beyond reasonable doubt and that the verdicts were unsafe and unsatisfactory so as to give rise to a miscarriage of justice. 113 The Crown submitted that it was open to the jury to convict the Appellant on all counts independently of the evidence of ER. In this respect, the Crown pointed to the evidence of the Appellant's blood being found on the car seat cover, his own admission that he disposed of the stolen car and the very large amount of cash he produced to purchase his share of the horse shortly after the robbery. 114 The Crown submitted that the evidence of a pre-arranged horse purchase by the Appellant operated to his detriment at the trial. It indicated an urgent need for money. Further, the fact that the Appellant took two friends with him to Queanbeyan indicated he had something more planned than simply a family holiday. The Crown submitted that it was clearly open to the jury to find that the Appellant used the money which was the proceeds of the robbery to pay for his share of the horse. The Crown addressed each of the other issues relied upon by the Appellant. With respect to the description of the robbers, it was submitted that the features of identification given by witnesses often vary and that none of the descriptions operated to exclude the Appellant. Insofar as emphasis was placed upon suggested inconsistencies or discrepancies in the evidence of ER, it was submitted that this is a frequent feature of criminal trials and that the various arguments relied upon in this Court were advanced to the jury, which no doubt brought their collective knowledge of human affairs and common sense to bear. 115 The Crown submitted that the Appellant's account was totally implausible.

[88]

30 This Court has emphasised the fact that a jury brings to consideration of a circumstantial case the common experience of members of the community who apply their collective knowledge of human affairs and their common sense: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 272-273 [2], 293-294 [86]; Chahine v R [2006] NSWCCA 179 at [88]; BJR v R [2008] NSWCCA 43; 185 A Crim R 360 at 380 [97]. After citing these authorities, Giles JA (Howie and Buddin JJ agreeing) said in Burrell v R at [65]: 'This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence'." 117 The Court is required to consider all the evidence at the trial and determine whether the jury should have had a reasonable doubt about the guilt of the Appellant notwithstanding its advantage in having seen the witnesses, including ER and the Appellant, give evidence: Toalepai v R [2009] NSWCCA 270 at [55]. 118 The Crown and defence cases at trial were summarised earlier in this judgment. The evidence of ER was subjected to significant challenge at the trial. However, it did not stand alone. The features of the Crown case referred to by the trial Judge in the summing up at [66] above were especially damaging to the Appellant. The presence of the Appellant's blood in the stolen car and the fact that Mr Davis and Mr Russo had accompanied the Appellant and his wife to Queanbeyan (on the Appellant's version - on holiday) were most damaging to the Appellant. There was a significant body of direct and circumstantial evidence implicating the Appellant in the commission of the robbery and detain for advantage offences. This was the case before one comes to the evidence of ER. 119 The jury had the advantage of observing the witnesses giving evidence, including ER and the Appellant. It would have been apparent to the jury that there was no love lost, by 2003, as between the Appellant and ER. The issue for determination at the trial was whether the Crown had proved beyond reasonable doubt the guilt of the Appellant of the offences charged. The problem for the Appellant was that the evidence of ER formed one part only of the Crown case against him. 120 We accept the Crown submission that there was a powerful body of evidence leading to the conclusion that the Appellant was one of the offenders. This evidence included the following features:

[101]

(m) the admissions made by the Appellant, on the evidence of ER, contained details that only the offenders would have known. 121 We accept the Crown submission that the evidence that the Appellant had a pre-arranged horse purchase operated in favour of the Crown case. This aspect served to explain an urgent need for money on the Applicant's part which, once obtained from the robbery, was utilised directly for the purchase of the horse. Any peripheral issues concerning this topic did not touch the cogency and damaging effect of this aspect of the Crown case. 122 Criticisms of ER's account concerning the scanner and of the Crown witnesses' varying descriptions of the robbers did not, in our view, materially assist the Appellant. Likewise, the particular criticisms of ER's evidence do not advance materially the Appellant's contention that the verdicts were unreasonable and cannot be supported by the evidence. 123 Of course, this ground of appeal must be assessed by reference to all the evidence adduced at the trial including the defence case. We accept the Crown submission that the Appellant's account was implausible. He claimed that, by pure chance, he was in Queanbeyan on the day of the robbery. He asserted that two of his friends happened to have gone on his family holiday and were also there. Further, the Appellant maintained that he happened go to the hotel car park in the early hours of the morning at a time when Mr Davis and Mr Russo were returning from committing the robbery. The Appellant maintained that, for reasons that are not readily apparent, he was offered the sum of $2,000.00 to dispose of the getaway car. Having been retained in this way, he drove the car about 150 metres behind the Queanbeyan Leagues Club from where it had been stolen a short time earlier. 124 It was entirely open to the jury to conclude, as the jury no doubt did, that this account was fabricated in an attempt to provide an exculpatory account (at least with respect to the charges for which he stood trial) in circumstances where there was indisputable forensic evidence establishing that the Appellant had been in Ms Stephens' vehicle. As the Crown submitted, why Mr Davis and Mr Russo would not dispose of the stolen car themselves was unclear because, on the Appellant's version, Mr Davis had driven that car from the Queanbeyan Leagues Club to the Hotel car park with Mr Russo following behind in a van. This involved the unnecessary use of two vehicles, and ran the risk that police would see the stolen car driving through the streets of Queanbeyan in the early hours of the morning. When regard is had to Exhibit 2 (a street map of Queanbeyan on which the positions of the Hotel and the Club are marked), this process required driving quite some distance from the Hotel, across the main road, past the Queanbeyan Leagues Club to the street behind. The simpler and less dangerous course would have been to leave the car as soon as possible and drive back to the Hotel in the van. The van was not connected with the robbery and posed no risk of detection. The Appellant claimed to have no idea he had driven the car so close to the Queanbeyan Leagues Club where the robbery had occurred a short time earlier, with this being just a coincidence. The Appellant's account strained credibility. 125 In reality, there was a strong Crown case against the Appellant with respect to these charges. By the time the jury had heard the defence case, including the evidence of the Appellant, the Crown case could only have been strengthened in a very substantial way. 126 Upon the whole of the evidence, it was clearly open to the jury to be satisfied beyond reasonable doubt of the guilt of the Appellant on each charge. It has not been demonstrated that there is a significant possibility that an innocent person has been convicted of these crimes. Indeed, there was a powerful Crown case which was only improved in its strength by the defence case at trial. 127 The Appellant has failed to establish that the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence. This ground of appeal should fail.

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