GAR v R

Court of Criminal Appeal (NSW)|2010-08-05|Before: Tobias JA, Johnson J, Rothman J

DECISION: 1. Leave to appeal granted. 2. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - necessity for warnings by a trial judge under s 165 of the Evidence Act 1995 - requirement for application to trial judge - unnecessary to warn as to bias of a child - allegation of unreasonable verdict - analysis of evidence - role of fresh evidence - appeal dismissed

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995

COUNSEL: A: D Dalton SC; A Goodridge R: D Arnott SC; N Noman

SOLICITORS: A: J N Legal R: S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL 2003/2610

TOBIAS JA JOHNSON J ROTHMAN J

5 AUGUST 2010 GAR v R (No 3) Judgment 1 THE COURT: The present appeal was one of a trilogy of appeals heard concurrently by the Court between 28 and 30 April 2010, each appeal seeking to overturn a conviction of the same appellant. Judgment in the other appeals is being handed down at the same time as this judgment, and this judgment ought to be read in conjunction with them. Particularly, the issue of fresh evidence that was before the Court in this matter is dealt with in detail in GAR v R (No 1) [2010] NSWCCA 163. 2 The present appeal arises out of the conviction of the appellant for armed robbery with wounding, following trial in the District Court in 2003. The robbery with wounding occurred at the Criterion Hotel ("the Hotel") in Sydney in the early morning of 15 May 2000. Use of initials in judgment 3 The issues in this judgment include an issue of fresh evidence that is dealt with fully in the judgment of the Court in GAR v R (No 1), supra. That appeal arose out of the conviction of the appellant for sexual assault on his former wife. The operation of s 578A of the Crimes Act 1900 involves prohibition on publication of anything identifying or likely to lead to the identification of the complainant in sexual assault proceedings. Accordingly, in accordance with usual practice, the appellant in that judgment is referred to by initials only and, as a consequence of the concurrent hearing of these appeals and the interrelationship of the evidence, must be referred to by initials only in this judgment. 4 As is clear, even though this judgment does not deal with the sexual assault matter, the identification of the appellant, his ex-wife and their children would enable identification of the complainant in the sexual assault trial. As a consequence, during this and the other appeals, the Court shall refer to the appellant by the letters GAR, his ex-wife by the letters ER, their daughter by the letter E, their son by the letters AR and the appellant's sister by the letters JC. Grounds of appeal 5 The appellant pressed four grounds of appeal, which related to the conviction appeal and pressed no ground of appeal on sentence. None of the grounds relating to the conviction of the appellant raise a question of law alone, as a consequence of which the appeal must be treated as an application for leave to appeal against conviction: s 5(1) of the Criminal Appeal Act 1912; Rasic v R [2009] NSWCCA 202 at [2], [12]; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2], [44]-[53]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44], [69]. 6 The grounds of appeal are in the following terms: (1) Ground 1: Not pressed.

(2) Her Honour erred in law in refusing to give a warning, as requested, under s 165 of the Evidence Act 1995, or otherwise, as to the evidence of AR and/or making no comment in respect of such evidence.

(3) The verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported on the evidence making the conviction unsafe and unsatisfactory [and] giving rise to a miscarriage of justice.

(4) At the hearing of this appeal the appellant will seek to rely upon fresh evidence to the effect:

(i) the key prosecution witness, ER, gave false evidence implicating the appellant in the subject offence;

(ii) the key prosecution witness, ER, had previously given fabricated evidence implicating the appellant in prior criminal proceedings [which false evidence is] probative of [her] being so motivated to give false evidence in the subject proceedings; or

(iii) the key prosecution witness, ER, had previously procured her daughter, E, to give fabricated evidence implicating the appellant in prior criminal proceedings [which prior act of ER is] probative of ER being so motivated to give false evidence in the subject proceedings.

(5) Appeal against sentence, not pressed. 7 The foregoing is, as is obvious, a very slight adaptation of the amended grounds of appeal, filed by the appellant on 2 October 2009. The original grounds of appeal had been filed on 30 April 2007. 8 Grounds 1 and 5, which pursuant to the amended grounds of appeal were not pressed, were raised in the appeal as originally filed. 9 The grounds of appeal pressed by the appellant require the leave of this Court as they do not involve questions of law alone: s 5(1) Criminal Appeal Act. The Crown opposed a grant of leave in this case as it did in the related appeals. The Court has determined that leave ought be granted to the appellant to rely upon grounds in the related appeals: GAR (No 1), supra, at [19]-[20]; GAR v R (No 2) [2010] NSWCCA 164 at [10]. In these circumstances, the Court concludes that the grounds in the present appeal warrant consideration by the Court and that it is appropriate that there be a grant of leave to appeal in this case. Robbery of the Criterion Hotel: The Crown and Defence Cases 10 There is little contest as to the circumstances of the robbery itself. The appellant conducted his case on the basis that he was simply not involved in the robbery. 11 The Hotel, which is situated in Pitt Street, Sydney, was robbed between 3.00am and 5.00am on Monday 15 May 2000. Over $200,000 in cash was stolen and other valuables were taken, including a laptop computer. There were two intruders, one of whom was armed with a replica pistol and the other with a baton. 12 The licensee, Mr Houlakis, lived on the premises in a combined office/bedroom on the first floor. He had been asleep, in bed, when he was woken by the two intruders. He noticed that they were armed and was ordered not to speak. The licensee correctly formed the view that the pistol was a replica and threw a vacuum cleaner at the intruders. He tried to prevent the robbery and was struck over the head three times with a baton, resulting in two wounds which later required stitches. The baton was described by him as "a police bat", being approximately 30cm long. Notwithstanding that the strike across the head had subdued him, he was struck again over the head twice more, then bound and gagged. 13 The money and other valuables were stolen from a freestanding locked safe in his office. The locked safe was opened with the keys that were taken by the robbers from the licensee's trousers. They also stole his wallet. 14 The notes that were stolen had been bundled together by the licensee earlier in the evening by bundling 10 notes together and folding the notes and bundling together 10 of such bundles. That bundle of 100 notes was then secured with a rubber band at each end of the bundle. 15 The Hotel provided accommodation on the first floor, the access to which was through a locked door at street level on Pitt Street. Guests were provided with a key that opened the Pitt Street door and the door to their individual room, but not other rooms. 16 Evidence was adduced from a locksmith who had checked the Pitt Street door and had found the door to be secured by a lock that was both old and worn. It could be opened with a "jiggle" key. The locksmith was also able to open the door to the licensee's office on the first floor on his first attempt, by forcing a plastic card between the edge of the door and the lock. This was possible because the door was badly fitted and had sufficient play within the door jamb to allow the manipulation of the lock. The Hotel was fitted with video security cameras that monitored locations inside and outside the premises. These were recorded by VCRs and observed through a monitor with a split screen. After the robbery, four of the seven video security tapes were missing. 17 The appellant and his family lived in Mildura, but were staying with friends at Blacktown for a few days prior to the robbery. One of the appellant's children had an appointment in the Sydney CBD on 15 May 2000 and again on 17 May 2000. The appellant was absent from the Blacktown residence on the night and early morning during which the robbery occurred. 18 During the trial, the Crown alleged that the appellant had been one of the two persons involved in the robbery and had thereafter travelled from the Hotel to the house of an associate, Don Reeves, in The Rocks. From there, the appellant allegedly rang his wife, ER, at 5.16am, for which there is a telephone record. The Crown alleged that the appellant told ER to come and pick him up. ER gave evidence for the Crown. 19 ER's evidence, which will be more fully recounted hereafter, was that she picked up the appellant who had a shopping bag packed with many bundles of cash. She saw there were notes bound with rubber bands on each end of the bundle, mainly bundles of $50 and $100 notes, organised in the way that the licensee had described. 20 ER also gave evidence that the appellant admitted to her to having committed the robbery and that $200,000 or more had been taken. Further, the appellant gave details of the robbery to ER which could have been known only to someone who had taken part in the robbery. 21 The details included the capacity to gain access through the relevant doors of the Hotel by using a plastic card; that the licensee would not give up the keys to the room or the safe or tell them where the money was; that the licensee had been beaten with a baton and part of a vacuum cleaner; and the amount of money in the safe. Further, there was reference to the licensee wearing a toupee, which reference was given some significance by the appellant. 22 ER, having been telephoned by the appellant as referred to at [18] above, picked him up at the premises at The Rocks and drove him to Blacktown, the residence in Sydney where they were otherwise staying. During the course of that trip, ER stopped at an alleged co-offender's house at Matraville and remained in the car while the appellant went inside with the bag of money and returned shortly thereafter again carrying the bag of money. ER gave evidence as to the continued stress placed by the appellant in his conversation with her during the trip from The Rocks on having left the baton behind at the scene of the robbery. 23 There was evidence that a baton of the same kind as that used in the robbery was kept at the Bankstown premises at which the appellant and his family were staying and that the baton had gone missing. The evidence, however, differed on whether it went missing immediately after the robbery. One of the witnesses attested to the fact that she had seen the baton after the robbery, although that evidence was inconsistent with her version given to the police on an earlier occasion. 24 There was also evidence, both direct and independent, that the appellant spent significant amounts of cash on non-essential items, including paying for his family and their hosts in Sydney to stay at the Novotel in Darling Harbour as well as upon a shopping spree that occurred at or about that time. The appellant, at or about that time, also repaid money that had been lent to him for a caravan and motor vehicle. 25 AR, the appellant's son, gave evidence that shortly after the robbery took place, he saw bundles of notes of $100 and $50 wrapped in rubber bands on the table in their room at the Novotel. AR was 14 years of age at the time of the robbery. He gave evidence that the appellant had said in relation to a question about the money: "That's our money". AR also gave evidence about the baton which, he said, he had seen under the driver's seat of the family car during the period of time that they were staying in Sydney and prior to the date of the robbery. 26 Further, the evidence of AR was that the appellant had answered "jokingly" to an enquiry from AR that the baton "was to whack someone over the head with". 27 There were other aspects which, ex post facto, go to the involvement of the appellant in the robbery. First, the appellant took steps to ensure that his name was not associated with the reservation of the hotel rooms at the Novotel. Second, he sought to dye his hair. Third, the height of the appellant was as described by the licensee. Fourth, monies that were derived from (although at the time not held by) the appellant were bundled in precisely the way as that described by the licensee. 28 The appellant gave evidence at his trial. He denied involvement in the robbery and gave evidence that the monies found bundled in the same manner as the licensee had described were monies innocently obtained from a friend's compensation payout and a further loan from an elderly couple befriended by the appellant. 29 The difficulty with the explanation was that the friend was the brother of the alleged co-offender and the monies lent by the elderly couple had been hidden in a way that suggested some lack of legitimacy. Each of the foregoing was, of course, a matter for the jury. Moreover, apart from the abovementioned display of wealth composed entirely of cash, following the robbery the appellant had given to his son, AR, a laptop computer, which was one of the items stolen in the robbery. It is now necessary to deal with the evidence at trial in more detail. Robbery of the Hotel: Evidence at Trial 30 The foregoing summary of facts derives from the evidence given at trial by members of the appellants' family, the licensee and employees of the Hotel, those who had contact with the appellant shortly before and in the months following the Hotel robbery, and the police officers involved in its investigation. Aspects of that evidence are central to Grounds 3 and 4 of this appeal, and assist in understanding Ground 2. Accordingly, they warrant detailed consideration. Evidence of Mr Michael Houlakis 31 Mr Houlakis gave evidence that upon his return from hospital for treatment arising from injuries sustained during the robbery, he saw the safe opened and discovered that the following was missing: cash in the sum of over $200,000; diamond rings; gold and silver coins and two-up sets (Trial Transcript, 27 August 2003, pp 61.54-62.19). The search by Mr Houlakis was conducted at the request of Detective Sergeant Albury and was recorded and tendered as Exhibit B. 32 Mr Houlakis also gave evidence as to how the cash stored in the safe was bundled. That method involved bundling $5, $10, $20, $50 and $100 notes into $1,000 or $500 lots, securing them with a rubber band, and placing them in lots of ten making $5,000. The monies in the safe that evening consisted of the poker machine float ($50,000-$70,000), the weekend's takings (between $100,000-$130,000) and $20,000-$30,000 in wages (Trial Transcript, 27 August 2003, pp 62-63). 33 Particularly relevant to the grounds pressed by the appellant in this appeal, was the evidence of Mr Houlakis with respect to the keys and locks at the Hotel. He said that the lock on the Pitt Street entrance door had not been changed since 1993 or 1994 (Trial Transcript, 27 August 2003, p 79). 34 Mr Houlakis also gave evidence that four of the Hotel's seven security tapes were missing (Trial Transcript, 27 August 2003, p 66). Evidence of Mr Kevin Fuller 35 Kevin Fuller, a locksmith, checked, after the robbery, the locks of the doors on the Pitt Street entrance to the Hotel and on the first floor to the office. His evidence, as already summarised, was that the deadlock function on the Pitt Street door entrance was not operating at the time of inspection, that it was unlikely that it was bypassed by way of a plastic card, but more likely a "jiggle" key (Trial Transcript, 5 September 2003, pp 546-547). Mr Fuller was able to open the office door on his first attempt by forcing a plastic card between the edge of the door and the face of the keeper (Trial Transcript, 5 September 2004, pp 547-548). Evidence of Mr Brian Williams 36 Another locksmith, Brian Williams, checked the first floor office door's lock barrel and concluded that it was improbable that the lock was picked and there were no marks to suggest this (Trial Transcript, 5 September 2003, p 544). Evidence of Mrs Barbara Vassilakis 37 Barbara Vassilakis, a cleaner at the Hotel, gave evidence that she found a towel missing from Room 3, where no one had been staying, and that she was given towels that were full of blood, but did not see any towels belonging to the Hotel (Trial Transcript, 26 August 2003, pp 36-37). 38 She also gave evidence that she knew the man who had installed the security system, Jordan Stevens, and had seen him with another man go into Mr Houlakis' office on the Sunday preceding the robbery. Mrs Vassilakis described the other man, but suggested that he had turned to conceal his face (Trial Transcript, 26 August 2003, pp 36-37). Evidence of Mr Cameron Davis 39 Cameron Davis, a barman at the Hotel, gave evidence that around 4.00am or 5.00am on 15 May 2000, a call was made to the bar area downstairs from Mr Houlakis' office stating that he had been robbed. Mr Davis ran upstairs to Mr Houlakis' office and, upon seeing him injured, called the police and an ambulance. Upon exiting the office to enable access for the ambulance officers, the door closed behind Mr Davis and he had to call Mr Houlakis' sons to gain access using a key. During this time, Mr Davis noticed in the other room of the office a broken vacuum cleaner, a blood soaked towel, missing surveillance tapes and also noticed that none of the windows were broken and that the door was functioning (Trial Transcript, 28 August 2003, pp 143-145). 40 Mr Davis also gave evidence regarding Jordan Stevens, whom he had known since school and whom he had introduced to Mr Houlakis. Mr Davis saw Mr Stevens working at the hotel at various times. He had once seen Mr Stevens bring a young skinny man with him to help with ladders and cables (Trial Transcript, 28 August 2003, pp 157-159). He denied any involvement in, or advanced knowledge of, the robbery (Trial Transcript, 28 August 2003, pp 134-135). 41 A number of other employees of the Hotel, including Sam Solinareos, Selwyn Coorey and Kurt von Arnold, gave evidence. They each gave evidence that they had seen Mr Stevens doing security work around the hotel. 42 The evidence of Mr Coorey and Mr von Arnold was that they did not know details of the workings of the security system, and believed only Mr Houlakis and his sons had keys to the former's office. However, Mr Stevens may have had access to Mr Houlakis' keys for a period of one month some time prior to the robbery (Trial Transcript, 5 September 2003, pp 562-563). Evidence of Mr Jordan Stevens 43 Jordan Stevens gave evidence of his work around the Hotel for Mr Houlakis. Initially, Mr Stevens completed maintenance work and then later installed security cameras. Mr Houlakis had been worried that his staff had been short changing him. Additional cameras were installed in the Underground Bar and to cover Pitt and Park Streets. The cassette recorders were located in Mr Houlakis' office (Trial Transcript, 1 September 2003, pp 263-265). 44 Mr Stevens' worked varied hours at the Hotel, but usually between 6.00pm or 7.00pm and 11.00pm or midnight. He worked many Friday and Saturday nights, but could not recall ever working on a Sunday. He mainly worked on his own, but once brought an electrician, Brendan Mill, who fitted lights in the downstairs area of the Hotel (Trial Transcript, 1 September 2003, pp 267, 272). The description given by Mr Stevens of Mr Mill was not dissimilar to the description by Mrs Vassilakis of the man she saw with Mr Stevens. Mr Stevens could not recall whether he saw Mr Houlakis on the Sunday before the robbery. 45 Mr Stevens established a security alarm in Mr Houlakis' office and a keypad on the outside of the door, which enabled Mr Houlakis to enter a password. He gave evidence that Mr Houlakis was always with him while he was in the office, and that Mr Stevens did not have a key to enter Mr Houlakis' office. He could not recall ever being given a key by Mr Coorey or Mr von Arnold. Mr Stevens said that he did not have any knowledge about the robbery, except that which he observed after the robbery had occurred (Trial Transcript, 1 September 2003, p 271). Evidence from the Police about the Robbery 46 Detective Sergeant Albury gave evidence about what he observed in the office of Mr Houlakis, upon attending the crime scene at 7.40am on 15 May 2000. He observed crumpled adhesive tape on the bed, spots of what appeared to be blood on the walls above the bed, underneath the window and on the pillowcase, a white towel covered in blood and the metal safe opened with the keys in the lock (Trial Transcript, 28 August 2003, p 160). 47 A number of photographs were taken at the scene. Fingerprint dusting revealed the robbers wore woollen gloves. Detective Sergeant Albury also gave evidence, during cross-examination, that his understanding of the alarmed door of the office was that activation required the door to be opened only slightly. However, after re-examination and having refreshed his memory, he said that the door had to be substantially opened (Trial Transcripts, 28 and 29 August 2003, pp 187 and 231). Evidence of ER 48 As already detailed, ER gave extensive evidence at the trial, and that evidence is challenged by the appellant in these proceedings. 49 ER gave evidence that while she was married to the appellant in early 2000, having sold their household possessions and two cars for approximately $18,000, she and the appellant, and their two children AR and E, went fruit picking in Mildura with friends. A minimal amount of $400 was earned by the appellant and ER per week, and ER received $300 per week in benefits for the children. AR required ongoing specialist medical treatment, which required the family to return to Sydney in Easter 2000 (Trial Transcript, 1 September 2003, pp 300-302). 50 The family stayed with a friend, Tammy Toobey, at Blacktown. At this time, ER gave evidence that just $500 would have been left from the $18,000 (Trial Transcript, 3 September 2003, pp 469-473). 51 ER also gave evidence that on two occasions at this time and prior to 15 May 2000, she drove the appellant to the Woolooware area to meet Danny Landini. The first occasion was for half an hour and ER remained in the car. On the second occasion, a few days later, ER drove the appellant to Mr Landini's place and attended his apartment with the appellant. She stayed overnight with Mr Landini's partner, as the appellant and Mr Landini had gone out and did not return until 10.00am. ER and the appellant then returned to Ms Toobey's place. The appellant left early in the morning of the next day and was gone for the day and most of the night (Trial Transcript, 1 September 2003, p 309). 52 At 5.16am, according to phone records tendered at the trial and the evidence of ER, the appellant rang her from a friend's house in Kent Street in The Rocks, requesting that ER collect him immediately. ER borrowed Ms Toobey's car, drove to the house at The Rocks and waited until the appellant came to the door. He berated her for taking so long. ER went into the house. The appellant was pacing around and talking loudly. She described the homeowner, Mr Reeves. In cross-examination ER said that she had told police that there were two other men present, but at the committal, said there had been only one other man present. The appellant said in her presence: "Danny couldn't fucking believe that I could get through doors by using - by carding the doors" (Trial Transcript, 1 September 2003, p 317). ER also gave evidence that the appellant said words to the following effect: "The lousy Greek cunt wouldn't give them the keys to the room - the keys to the safe or tell them where the money was. We gave this Greek cunt a real serve with parts of a vacuum cleaner and a baton, a wooden baton." (Trial Transcript, 1 September 2003, p 313.) 53 ER then gave evidence that the appellant could not believe how much cash was in the safe, saying: "This lousy Greek cunt hadn't banked for years". The appellant then said: "When we got there we were given the wrong information. Doors that were meant to be opened were locked. Danny wanted to go home." However, the appellant said he decided to stay and reiterated that Danny could not believe that the appellant had gained access to the doors using cards. The appellant also said: "That lousy smelly Greek cunt, I could not believe it, he wore a toupee". (Trial Transcript, 1 September 2003, p 314.) 54 ER gave evidence that when they left the house at The Rocks, the appellant picked up a brown shopping bag containing a large amount of money in the form of notes bound with rubber bands on each end of the bundle, mainly $50 and $100 notes (Trial Transcript, 1 September 2003, p 315). Under cross-examination, she said that the appellant had told her that $200,000 or more had been taken in the robbery, but that she was not aware of anything else being taken, and that the appellant did not give her a diamond ring. The appellant did give AR a laptop computer (Trial Transcript, 3 September 2003, p 452). 55 ER and the appellant then drove to a house at Matraville belonging to another friend of the appellant. ER remained in the car. The appellant entered the house with a bag of money and returned ten minutes later with the same bag. The appellant was agitated and asked her to drive to Blacktown. 56 The appellant kept repeating to ER: "I am worried about the baton, I couldn't find it. We left it there. I have never left anything behind." ER gave evidence that the appellant "just went on and on about a baton which belonged to Tammy Toobey that he had taken from the house and used to beat the victim … the baton was used in conjunction with part of a vacuum cleaner … to beat the victim." (Trial Transcript, 1 September 2003, p 317.) ER said she had previously seen the baton at Ms Toobey's, and described it. 57 On the drive to Blacktown, problems arose with the bonnet of the car, which was damaged. ER and the appellant stopped for petrol and also stopped at a Mitre 10 to purchase some tools to fix the bonnet. The appellant explained to Ms Toobey what had happened and that they would repair the bonnet. The appellant suggested that they all go to the Novotel at Darling Harbour for a few days. ER, the appellant, E, AR, Ms Toobey and her children attended the Novotel, and the appellant instructed Ms Toobey to register two rooms in her name (Trial Transcript, 1 September 2003, p 321). There was conflicting evidence given by ER and Ms Toobey as to who paid the room deposit. The appellant was agitated and left for most of the day. ER was made to carry the bag of money wherever she went. AR gave evidence of seeing the bundles of money placed into a plastic bag, but he did not see it again until it was taken by police at the Sloan property (referred to below) (Trial Transcript, 5 September 2003, p 619). 58 ER gave evidence of a shopping spree on the first day of their stay at Darling Harbour which lasted two hours during which clothing and sporting goods were purchased for everyone, using the money from the bag (Trial Transcript, 1 September 2003, p 322). 59 The following day, the family went to Kings Cross. The appellant had his hair bleached and cut. During the haircut, the appellant's brother entered the salon, and the appellant gave his brother money from the bag. The appellant told ER it was for the repayment of the caravan and a recently purchased Commodore. 60 Following this, ER returned with the children to the Novotel, during which trip she received a call from the appellant asking to be collected. He had just received an infringement notice for driving the Commodore unregistered. 61 ER handed Ms Toobey money to pay the account at Novotel (Trial Transcript, 5 September 2003, p 585). The appellant, and his family, returned sometime later to Mildura. 62 ER gave evidence that on the way back to Mildura, they stayed with friends. There was evidence given by ER that a fictitious arrangement for the purchase of a horse float was arranged by the appellant between people referred to as the Harleys and the Sloans. ER gave evidence that ER took approximately $22,000-$23,000 in $100 notes from the bag of money for the float to the Sloan's property at Mildura, and handed it to Mrs Sloan (Trial Transcript, 1 September 2003, p 332). 63 ER gave evidence that Mrs Sloan refused to give possession of the float to the appellant immediately. The appellant became agitated and physically aggressive. E called the police who arrived (Trial Transcript, 2 September 2003, p 338). The police placed the appellant into custody. 64 Sergeant Irwin of the Victorian police gave evidence that on 24 May 2000, he attended the Sloan property. E pointed out to him a plastic bag under the bushes, which contained $19,500 in cash (see Exhibits M-R) (Trial Transcript, 4 September 2003, p 511). The appellant was released on bail on the evening of 24 May 2000, to appear the next day in relation to charges of possession of money and the domestic dispute. 65 ER last saw the bag with the money in it in the caravan on the day the police arrived at Mildura. She gave evidence that she told police at Mildura that the money discovered at the Sloan property could possibly have come from the $18,000 possessed by the appellant and ER before they originally left Sydney before originally moving to Mildura. ER did not explain what she had heard at Don Reeves' house at The Rocks. She did this because she "was under fear of my life" (Trial Transcript, 3 September 2003, pp 469-471). 66 ER stayed in a motel provided by police on the evening following the domestic dispute, and the next morning returned to stay at the caravan on the Sloan property. She gave evidence that the appellant approached her in the stables and asked for a second chance and to stay in the caravan. When ER refused, the appellant slept in the stables and arranged to be collected by a light plane the next morning from Mildura airport (Trial Transcript, 2 September 2003, p 344). 67 ER drove the appellant to Mildura airport early the next morning. She left him at the airport. He then called her to say the weather was so bad the plane could not land. The appellant's sister had made arrangements for him to hire a car in ER's name. ER drove back to the airport with E and saw the appellant for the last time before she left Mildura; she signed for the car and gave the appellant the keys. The appellant told ER he was driving to Adelaide. Evidence from the Police about the Novotel Hotel Stay and Mildura Interviews 68 On 24 May 2000, Detective Sergeant Albury spoke to Victorian police. Having received from Detective Steele of Mildura faxed statements from ER, AR and E, Detective Sergeant Albury made inquiries concerning the appellant. He then went to the Novotel at Darling Harbour and received printouts of the rooms in the name of Ms Toobey, indicating the arrival date of 15 May 2000 and departure date of 17 May 2000. ER and Ms Toobey later confirmed Ms Toobey's signatures on these documents. 69 At 9.20am on 28 May 2000, Detective Senior Constable Knezevic and Detective Sergeant Albury spoke with ER at Mildura police station. They showed her a photograph of Mr Houlakis. Detective Sergeant Albury stated in cross-examination that he told ER there had been an armed robbery at the Hotel, but he could not recall if he told her at what time it occurred, or the amount alleged to have been taken; he did not tell ER any specific details of the robbery (Trial Transcripts, 28 and 29 August 2003, pp 196, 256-260). 70 Detective Sergeant Albury gave further evidence that on 29 May 2000, he spoke to Reginald Sloan at Mildura police station. Photographs of the $19,500 and plastic bag seized from the appellant, as well as a photograph of the appellant, were given to Detective Sergeant Albury by Detective Kerr. Further Evidence of ER 71 ER also gave evidence that during her interview with Detective Sergeant Albury and Detective Senior Constable Knezevic in Mildura, she received a phone call from the appellant. The appellant ended the call when ER told him she was at the police station (Trial Transcript, 2 September 2003, p 340). ER then received a call from Ms Toobey, who had driven from Blacktown to collect ER and her children and take them back to Sydney to stay with her. 72 Following her interview with police, ER stated that she met Ms Toobey. Just before nightfall, they left Mildura and reached Ms Toobey's house a few days later (Trial Transcript, 2 September 2003, pp 341, 344). 73 A number of days after arriving at Ms Toobey's house, the appellant called ER and asked her to meet him. ER met the appellant in a park at The Rocks. ER asked him about the photo she had been shown at the police station in Mildura. ER then went to Mr Reeves' home and, subsequently, returned to Blacktown (Trial Transcript, 2 September 2003, pp 344-345). 74 ER gave evidence that she and Ms Toobey later met the appellant at The Rocks. The appellant drove them to where he was staying in Maroubra, indicating the Hotel on the way. 75 ER gave evidence that, after being in Sydney for a few weeks, when speaking with the appellant, he told her that Mr Reeves' stepdaughter, Linda, had a friend who worked at the Hotel and "had inside information into the keeping of moneys in the smelly mean dirty Greek's residence." ER said that the appellant told her that the residence was above the Hotel and that the money was kept in a safe. ER had met Linda Reeves earlier, but she had since committed suicide. 76 ER lived with Ms Toobey for several weeks until she moved to a friend's home at Maroubra, where she stayed for several weeks in a caravan. The appellant also lived there for a short time. In or around October or November 2000, when the appellant was no longer living there, he called ER and said he had "a perfect alibi for the horse float. Noel Carroll has received a large compensation pay out." Mr Carroll was to say that he lent the appellant the money for the purchase of the horse float. ER did not see the appellant again (Trial Transcript, 2 September 2003, p 347). 77 Two days before Christmas in 2000, ER moved back in with Ms Toobey for a few weeks before finding her own place in Blacktown. AR was living with ER, but E was not living with ER or the appellant. 78 ER finalised her divorce with the appellant on 9 January 2002, and, at the time of the trial, both were in relationships with other people. Further Evidence from Detective Sergeant Albury 79 Detective Sergeant Albury gave further evidence that he and Detective Senior Constable Moroney spoke with the appellant on 30 October 2000, at the Newtown Police station, where the appellant denied involvement in the Hotel robbery. 80 On 19 January 2001, Detective Sergeant Albury and Detective Senior Constable Moroney spoke to Mr Carroll, following which conversation Mr Carroll was taken to Terrigal Police Station, where a statement was obtained (Trial Transcript, 28 August 2003, p 165). In cross-examination, Detective Sergeant Albury stated that no further inquiries in relation to the deposit on 12 May 2000 were made, as Mr Carroll showed them documents indicating he had obtained the money from court proceedings (Trial Transcript, 28 August 2003, pp 180-182). Consideration 81 Having summarised the evidence, and set out those of the grounds that are still pressed, the Court must consider each of those grounds. Ground 1: Not pressed

Ground 2: Failure to warn 82 The bases of the submission that warnings should have been given under s 165 of the Evidence Act 1995 were two-fold. Firstly, it was suggested that a warning should be given relating to the bias or possible bias of AR, in relation to his father. Secondly, it was submitted that the unreliability of the identification of the baton by AR and evidence as to the money should also have been the subject of a warning to the jury. 83 The issue of bias was squarely put both to AR in cross-examination and to the jury in addresses. The bias of AR as a result of the allegation that he would, together with his mother, concoct evidence against his father was, with the possible exception of the allegation in relation to his mother procuring false evidence, a matter with which the common sense and experience of juries is manifestly capable of dealing. 84 A request was made by counsel for the appellant, at trial, for a warning under s 165 of the Evidence Act in relation to concoction. The judge determined that it was unnecessary: see s 165(3) of the Evidence Act, the reason being that it was a matter within the general experience and understanding of the jury. 85 Further, notwithstanding the cross-examination on this issue, and the address by counsel on the question of concoction, there is nothing in the evidence itself which was "of a kind that may be unreliable": see R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 547-549, per Heydon JA (with whom Dowd and Bell JJ agreed). 86 The possibility of concoction between the witness, AR, and his mother, ER, while in some circumstances possible, and in this case possible, does not necessarily render the evidence, as such, "of a kind" for which a warning is necessary. If the possibility of concoction and the issues of credit associated therewith were plainly before the jury as a result of the cross-examination and the address of counsel, it is unnecessary for the judge to warn separately, unless the evidence is in a category that may be unreliable in the experience of the judge and not within the common experience of the community. 87 The appellant's solicitor at trial stated that AR and ER's description of the baton "just happened to be exactly the same … isn't it interesting it's exactly the same description … and he didn't discuss it with his mother." (Trial Transcript, 10 September 2003, p 813, at paragraph 44.) 88 In this case, the issues were squarely before the jury; the evidence was from a child of the appellant, a person not ordinarily in the category of persons from whom evidence would be unreliable, per se; and there is nothing in the evidence, as recorded, that points to a particular unreliability, beyond that which was put, most capably, by the appellant's legal representative at trial. 89 The trial judge, in her judgment of 11 September 2003, having determined that the evidence was not "of a kind that may be unreliable", went on to conclude, correctly in our opinion, that it would be perfectly obvious to the jury that, if they were to come to the view that the witness has a personal interest to serve and was not telling the truth, they could place little or no weight on what he told them. That is a matter that would be readily understood by the jury, because it falls within their general experience and is not a matter about which the Court has some special knowledge. 90 As noted, the appellant's solicitor at trial requested, on behalf of the appellant, that the judge issue a warning as to AR's bias. The judge considered the request and, for good reason, refused the request. There has been no injustice or irregularity associated with that determination. Nor did the decision involve an error of law or principle. 91 In relation to the warning as to the identification of the baton, different issues arise. The provisions of s 165 of the Evidence Act require a judge to warn a jury, only in circumstances where a party requests the judge so to do. On the issues of the identification of the baton, there was no request by the appellant for such a warning. Of itself, that would preclude the operation, or any error associated with the operation, of s 165 of the Evidence Act. 92 However, judges are required, where it is appropriate so to do, to warn a jury: see s 165(5) of the Evidence Act. The appellant, on the appeal, relied on statements of Howie J in R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; (2001) 124 A Crim R 371 to support the proposition that identification of the baton by AR was a matter of "identification" and, like identification of an accused, should be the subject of an appropriate warning. The difficulty with the submission in this case is that nothing turned on the precise identification of the baton. The appellant also sought to rely on the statements of Kirby ACJ in R v Clout (1995) 41 NSWLR 312 at 320-321. 93 It is true that AR's identification of the baton was consistent with the identification of it by ER. But the identification of the baton was not the basis upon which the appellant was identified with the robbery. This was not a case in which identification of the accused turned on the identification of a particular item of clothing or a particular weapon. It is a case in which the existence of a baton (i.e. any baton), and its possession by the appellant, was an added circumstance, because of the use of a baton in the robbery, to the other circumstances that identified the appellant with the robbery in question. 94 In other words, it is not the particular description of the baton that is relevant; it is the fact that a baton, of any similar kind, was in the possession of the appellant at or about the time of the robbery. In those circumstances, a warning of the kind suggested as to the identification of the baton, was unnecessary and its absence occasioned no injustice, substantial or otherwise. This ground of appeal is rejected. Ground 4: Fresh evidence 95 The Court, as presently constituted, has dealt with the issue of fresh evidence in both GAR (No 1), supra, and GAR (No 2), supra. The issue of fresh evidence affects the Crown case in relation to the robbery at the Hotel, less than it affects either of the other two trials subject to appeal in this trilogy. Necessarily, this ground affects the arguability of Ground 3 (the unreasonable verdict) and must be dealt with first. 96 The appellant sought to rely on fresh evidence to the effect that the prosecution's key witness at trial, ER: + had given false evidence implicating the appellant in the offence; + had previously given fabricated evidence in prior criminal proceedings, motivating her so to do in the subject proceedings; or + had procured her daughter, E, to give fabricated evidence implicating the appellant in prior criminal proceedings, motivating her so to do in the present proceedings. 97 The appellant submitted that ER's credibility was "the key component in both this matter and the matter relating to the Queanbeyan robbery". (Further Outline of Submissions on Behalf of the Appellant with respect to the Hotel Matter filed 14 June 2007, p 22.) 98 The evidence on which those propositions are based may be summarised separately in the following manner. 99 JC gave evidence (contained in her Affidavit of 4 April 2007) of admissions by E that she had given false evidence, at ER's urging, in the appellant's sexual assault trial. JC's evidence was that she overheard a telephone call between E and ER, when E said: "Mum, you made me lie about dad", to which ER replied: "you had to or no one would believe me, there wouldn't be a case". According to JC, E also said: "Mum, you made me tell lies". 100 Further, there was evidence from Ms Toobey that E had admitted to Ms Toobey that she had lied about her father's conduct in the sexual assault trial, and that ER requested Ms Toobey to give false evidence against the appellant in the sexual assault trial. 101 Next, there was evidence from the appellant, given during cross-examination in this Court on 28 April 2010, and in his Affidavit of 13 October 2006, that: + E admitted to him, during a prison visit with John Carroll, to giving false evidence at her mother's request; + ER admitted she had concocted parts of her evidence in relation to the armed robberies during a visit to him in Goulburn gaol on 26 March 2006. 102 There was also evidence from Mr Carroll, in his Affidavit of 22 October 2008 tendered on the appeal, of admissions by E to the appellant during the prison visit by Mr Carroll and E. 103 The appellant further submitted that the provision of statements to police by ER, in relation to the Hotel robbery, at a time after the appellant had been released on bail for the sexual assault matter in 2002, called into question the veracity of her evidence and motivations. 104 The "fresh evidence" outlined above, it is submitted, would have enabled a proper cross-examination of ER on her evidence and motivations in the robbery trial, and on her evidence, and on the procurement of E's evidence, in the sexual assault trial. Had this material been available at trial, the appellant contended, the jury would have entertained a reasonable doubt and acquitted the appellant. 105 There was, however, no "fresh evidence" in the present appeal which related to the evidence at the Hotel robbery trial, beyond the credibility and motivations of ER and, as explained in GAR (No 2), supra, the evidence of the motive of ER to lie was available to the appellant but, for obvious and reasonable tactical reasons, the appellant chose not to cross-examine on the sexual assault matters. 106 The Court also notes that in the telephone conversation between ER and the appellant recorded on 12 November 2006 (the only independent evidence that these issues were even raised), the appellant only accused ER of "loading him up" in respect of the Queanbeyan Leagues Club (referred to in the conversation as "the Canberra Raiders") robbery, and made no mention of the Hotel robbery. 107 The Court has accepted that the evidence constitutes fresh evidence in accordance with the relevant principles: see GAR (No 1), supra, and GAR (No 2), supra, at [31]-[46]. 108 The trial judge in the present matter described the evidence of ER in the context of the trial in her summing-up to the jury. After referring to the identification of the appellant as the "real issue in the trial", her Honour said: "In this regard the Crown relied on the evidence of one witness, ER, to satisfy you beyond reasonable doubt that the accused was one of the robbers at the Criterion Hotel. Because the Crown case relies on the evidence of a single witness, that is ER, you should examine her evidence with great care. The caution with which you must approach her evidence is not based on any view I have formed of her as a witness. The caution you must exercise is that which applies in any criminal trial where the Crown case relies essentially on the evidence of a single witness. You must assess not only what she told you but her honesty and her accuracy, that is, is she a witness on whose evidence you can rely." 109 As a consequence of the foregoing, the appellant submits that given the alleged concoction by ER in the sexual assault trial and her acquiescence in, or, worse, her procurement of, false evidence by E in that trial, the basis of the Crown case in the trial of the appellant for the Hotel robbery involves a miscarriage of justice and/or the jury verdict, in the circumstances, was unreasonable. 110 The foregoing proposition fails at the outset. As the Court has made clear, we do not accept that ER was lying in the sexual assault charge. Nor do we accept that ER procured false evidence by E in that trial. The issue of concoction by ER of evidence against the appellant was a matter raised, squarely, by the appellant in cross-examination of ER at trial and in addresses. It was the subject of a warning by the trial judge. Ultimately, it was a matter for the jury. 111 It is necessary, however, to deal with some additional aspects in relation to this ground of appeal. The Court in the other two judgments of the trilogy has set out most of the "fresh evidence" and other evidence adduced on the hearing of the appeal. From the aspect of the Hotel robbery charge, it is interesting that the appellant alleges that there was a conversation between ER and the appellant at Goulburn Gaol. According to the appellant, in that conversation the appellant accused ER of lying about the appellant's involvement in the Hotel robbery and ER, according to the appellant's version, admitted that she "may be wrong" about that matter. ER denies any such conversation. In this regard, we prefer the evidence of ER. 112 As earlier stated, the ground of appeal fails at the outset because, as has been made clear by the Court in the other two judgments in the trilogy, the fresh evidence relied upon by the appellant neither establishes that ER gave fabricated evidence in any one of the three trials nor establishes that ER procured E to give fabricated evidence in any other criminal proceeding. Ground 3: Unreasonable verdict 113 On one view of the submissions of the appellant pressed in this ground, the failure to establish, by the fresh evidence, that ER gave false evidence and/or procured E to give false evidence necessarily renders this ground untenable. Nevertheless, there are some aspects with which the Court needs to deal. 114 A number of the issues raised are issues relating to a detailed examination of the evidence in order to question whether the evidence ought to have been accepted, in the manner that it plainly was, by the jury. In the view of the Court, none of the issues raised by the appellant in any way undermine the reasonableness of the verdict. 115 One of the issues raised was the fact that the evidence of ER, to the effect that the appellant had admitted the use of a plastic card to gain entry, was in terms that were inconsistent with the facts. The appellant contended that there was a significant difficulty with the evidence given by Mr Kevin Fuller, the locksmith, the licensee, Mr Houlakis, and the account given by ER of the way in which the appellant stated that he gained entry to the Hotel and Mr Houlakis' office. ER gave evidence (Trial Transcript, 1 September 2003, p 312) that the appellant said to her: "Danny couldn't fucking believe that I could get through the doors by carding the doors." [Emphasis added.] 116 This submission relied solely upon the proposition that ER had recalled that the appellant used the term "carding the doors" (Trial Transcript, 10 September 2003, p 770), in circumstances where the robbery was effected by using the plastic card on one door only. There are two obvious answers to this submission. 117 First, ER may have inaccurately recalled (or given evidence of) the use of the plural, in circumstances where the appellant had used the singular (i.e. door and not doors). Such an inaccuracy would not undermine the evidence of ER overall, or even in this regard. 118 Second, the term "carding the doors" may have been used, and in our view was used, as an expression of the manner in which entry was gained, not a description of the number of doors that were opened in that manner. 119 Another complaint as to the evidence against the appellant related, in particular, to the admission by the appellant as recounted by ER, of his account of the resistance of Mr Houlakis. ER recounted that the appellant had told her that the licensee would "not give keys of the safe or tell us where the money was". Frankly, we do not understand the basis of this submission. 120 Plainly, Mr Houlakis resisted the robbery by use of the vacuum cleaner as a weapon and plainly he was assaulted with the baton. Either one of those courses of conduct would support the proposition that the licensee would not, at least initially, give the robbers the keys to the safe or tell them where the money was. There is no basis for this criticism of the jury verdict. 121 The third aspect of the criticism of the evidence of ER and the purported admission of the appellant related to the description of the manner in which the vacuum cleaner had been used. However, this criticism misses the point. ER could not have known of the use of the vacuum cleaner during the course of the robbery, unless a person concerned with the robbery had told her. Thus her reference to the vacuum cleaner supports, as one of a number of matters, the involvement of the appellant in the robbery and the credibility of his admission. 122 The fourth and fifth aspects on which the jury verdict is criticised again relate to the evidence of ER as to the admissions that were made. In each case they relate to criticism of the Crown for failing to adduce evidence corroborating parts of the statements said to have been made by the appellant. Such evidence was irrelevant or immaterial in the conviction of the appellant. One of the statements related to the possibility that someone inside the Hotel was intended to leave the doors unlocked, and did not, and the other related to proof that a third person was involved in the robbery. Neither of those issues was directly (and possibly not indirectly) relevant to the charges against the appellant and the Crown ought not be criticised for not adducing evidence that supported the conversation in respects that were not directly relevant to the charges being preferred. 123 The sixth matter on which the evidence of the admission was criticised related to the evidence suggesting that Mr Houlakis wore a toupee. This is a matter to which the Court has earlier referred at [53] above. It should be remembered that ER did not warrant the truth of all that was said to her by the appellant. She gave evidence of a conversation which contained admissions. The conversation was admitted into evidence for that reason. Those admissions did not relate to whether the licensee wore a toupee. 124 There are two obvious answers to the criticism of the evidence in this respect. First, the appellant was exaggerating when he said this to ER or, second, ER did not accurately recall all of the terms of the conversation. However, Mr Houlakis was bald, or almost bald, a fact that would be unknown to anyone who was unfamiliar with him or who had not been involved in the robbery. 125 Ultimately, the Court does not take the same view as does the appellant, and perhaps the trial judge, of the essential nature of the evidence of ER. The evidence against the appellant in relation to the Hotel robbery is compelling, even ignoring, at least to some degree, the evidence of ER. The evidence consists of a number of circumstances. First, the appellant had the opportunity to commit the offence and was in the vicinity of the Hotel at the time of the offence. Second, and consequential on the first point, he was absent from his, albeit temporary, place of abode at the time of the robbery, until the early morning shortly after the robbery. Third, he was the same height and/or general description as one of the robbers, although this is a description that, of itself, could be made of a number of persons. Fourth, he had access to and possession of a baton, and a baton was the weapon used in the robbery. Fifth, the appellant, immediately after the robbery, was suddenly able to spend significant amounts of money, all of it in cash. Sixth, the appellant was found in possession of further cash amounts bundled in precisely the same way as Mr Houlakis had described the cash that was stolen. Seventh, the appellant gave a laptop, one of the items which was stolen, to his son. 126 While it may be accurate to say that a jury may have come to a different view in the absence of the evidence of ER as to the admissions by the appellant, the evidence even without those admissions is significant. When, as this Court must, one adds the evidence of ER and AR to the foregoing mix of facts, the evidence against the appellant in this matter is overwhelming. 127 Accordingly, the Court is of the view that there is no substance to the submission that the verdicts of the jury were unreasonable or cannot be supported on the evidence given at trial. Ground 3 should, therefore, be rejected. Conclusion 128 For the foregoing reasons, in our opinion the appeal fails. The orders of the Court are, therefore, as follows:

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (9)

Cited By (6)