Court of Appeal (Vic)|2012-11-09|Before: Maxwell P, Neave JA

McCartney v The Queen [2012] VSCA 268 (9 November 2012)

R v Kasey McCartney (Unreported, County Court of Victoria, Judge Parsons, 11 July 2011)

CRIMINAL LAW - Appeal - Sentence - Armed robbery, robbery, motor vehicle theft - Total effective sentence of six years and two months' imprisonment, with non-parole period of four years and two months - Offences committed while on parole for earlier, similar offences - Parole cancelled - Balance of previous sentence served - Whether sentence imposed offended principle of totality - Appeal dismissed.

1 The appellant, Kasey McCartney ('KM'[1]), appeals against his conviction, after a trial before a County Court jury, on one charge of armed robbery (count 1), two counts of robbery (counts 2 and 3) and one count of motor vehicle theft (count 4).

2 He also appeals against the total effective sentence of six years and two months' imprisonment, and the non-parole period of four years and two months' imprisonment. The individual sentences and orders for cumulation are set out at paragraph 74 below.

3 The charges related to three separate robberies, all of which took place in less than two hours on 18 February 2009. The first began at around 4.15 pm, when a man said to be KM, together with three co-offenders, entered the Hawthorn Post Office in Glenferrie Road, Hawthorn. CCTV footage showed that one offender remained close to the door of the store and another stood at the point of entry to the area behind the counter. The remaining two offenders (one of whom was said to be KM) went behind the counter. One of them said, 'This is a robbery, keep your eyes down, look at the floor'.

4 Two members of staff were present during the robbery and a number of customers came and went while the robbery was occurring. One of the customers said something to one of the offenders and he swore at her. The offenders took approximately $3,600 in cash, and removed two purses belonging to the staff members from the back office (count 1).

5 The second robbery began at around 5.05 pm, when a person said to be KM and three co-offenders entered the North Balwyn Newsagency on Doncaster Road, North Balwyn. There were two staff in the shop, one of whom (Dennis Parker) was the owner of the shop.

6 One of the offenders went behind the counter and said, 'You know what this is? It's a hold up'. The offenders took money from the tills, and demanded access to the safe in the rear of the store. Mr Parker opened the safe, which was empty. One of the offenders then demanded Mr Parker's wallet, which was also empty. Approximately $5,000 was taken from the store (count 2).

7 The third robbery began at around 5.50 pm, when a person said to be KM and an unidentified co-offender entered the Gilberton Post Office, on Murray Road, Preston. The manager, Hieu Huynh, was behind the counter. His wife and young child and a customer were also present.

8 The offenders jumped over the counter and one of them pushed Mr Huynh, who sat down in a chair. While the offenders were rifling through the cash drawer, the customer quietly left the store and told a bystander that the post office was being robbed. The offenders took approximately $3,700 in cash (count 3), ran out of the store and got into a blue car.

9 The bystander phoned the police while the men were leaving. She saw them getting into a dark blue Mercedes Benz and gave the police the licence plate number of the car. This was also the licence plate number of a Mercedes Benz that Senior Constable Jeremy Norman had observed four men (one of whom he identified as KM) getting into, earlier in the day, and which had been reported stolen from a residence in Endeavour Hills (count 4).

10 The central issue at trial was whether the prosecution could establish beyond reasonable doubt that KM was one of the offenders. The Crown relied on CCTV footage of each of the robberies. In each case, the footage showed a large man wearing a white shirt and black pants with a cap. The Crown alleged that this offender was KM.

11 Although eyewitnesses to the robberies gave various descriptions of the offenders' appearance, there were similarities in their evidence. The postal workers and customers present in the Hawthorn Post Office during the first robbery said that one of the offenders who went behind the counter was 'fairly large'. The other 'wasn't quite so big'. The men were 'dark skinned', 'olive' toned, or of 'Islander' or 'Maori' appearance.

12 Similarly, witnesses to the second robbery described the offenders as having 'an olive complexion' or 'dark coloured skin'. KM is, in fact, of Aboriginal descent.

13 The Crown also relied on direct identification evidence given by two witnesses. The victim of the third robbery, Mr Huynh, picked out KM from a photo board containing 11 other images. Mr Huynh viewed the photo board about two months after the robbery.

14 During the trial, Mr Huynh gave evidence that the robbery of his post office was committed by two 'quite bulky' men. One of them was 'quite big', and the other was shorter. He said the taller man, who was wearing a white t-shirt, a baseball cap and sunglasses, jumped over the counter. The offender said, 'I don't want to hurt you' and then pushed Mr Huynh into the corner. Mr Huynh said he could see the offender's eyes through his dark sunglasses, because 'when he pushed me... to the counter he's very close to me and I could looking at him, I could look directly into his eyes'.

15 Mr Huynh said that, when he was shown the photo board, he recognised KM 'straightaway' from his eyes, but was told by the police officer to look clearly at every photograph before identifying the robber, which he did. When he looked at the photo board, he also covered the mouth and forehead of the person he believed to be the robber with his two hands so that he could look at his eyes. He also said that he had a 'clear memory' of the man's face, which was 'chubby, round'.

16 In a statement to the police made shortly after the robbery, Mr Huynh had described the offenders as being of Middle Eastern appearance. In his evidence in cross-examination, he said this was because of their dark skin colour.

17 The police informant showed photo boards with the same photos in different positions to two individuals who witnessed the first robbery. Neither identified KM. The other witnesses to these robberies were not shown photo boards, as the police informant believed they were not in a position to identify the accused.

18 Senior Constable Jeremy Norman had seen KM in Dandenong North earlier the same day, before the robberies occurred. At 2.22 pm, while carrying out surveillance, he observed KM, a 'known male', get into a blue Mazda outside a unit in Oberon Street and drive off. Norman was within 10 metres of KM at this time. This identification was not disputed by the defence.[2]

19 The police then followed KM to a house in North Dandenong. Senior Constable Norman said that, at around 3.25 pm, he observed KM and three other men come out of the house and get into a blue Mercedes (registration OMU 974). (This was the vehicle in which the offenders were subsequently seen driving off after the third robbery.) KM was then wearing a white shirt, dark tracksuit pants and a dark baseball cap. Senior Constable Norman was then approximately 100 metres away and was using binoculars to observe the men. His evidence was that he had a 'clear view' of KM and he was '100 per cent certain' he saw KM in the driver's seat of the Mercedes.

20 The defence did not lead any evidence at the trial. The defence case was simply that KM was not one of the offenders.

21 Defence counsel did not rely on the differences between the CCTV footage taken at each of the three locations, nor on the varying descriptions provided by witnesses about the larger offender, who was generally described as wearing a black hat, white t-shirt, dark tracksuit pants and sunglasses. Nor was it argued that different offenders might have been involved in the three robberies. The defence case was simply that it could not be established beyond reasonable doubt that the larger offender was KM.

22 The first ground of appeal against conviction was that:

The trial judge erred by admitting into evidence the photo board identification of Hieu Huynh.

23 At the trial, defence counsel objected to the admission of Mr Huynh's identification evidence. He submitted that the judge was bound to exclude the evidence by virtue of s 137 of the Evidence Act 2008, which provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

24 It was contended that the photo board evidence had little or no probative value. First, it was submitted, the array in the photo board shown to Mr Huynh did not include persons whose appearance was sufficiently similar to the appearance of KM. In particular, there were 'obvious' differences in the skin colour and facial structure of the other persons shown on the board, when compared to KM.

25 Secondly, it was pointed out that Mr Huynh, and several of the other witnesses, described the man alleged to be KM as wearing a hat and sunglasses at the time of the offences. It was argued that the probative value of the photo board ― which depicted men wearing neither a hat nor sunglasses ― was therefore greatly reduced.

26 Thirdly, it had been intended that KM would take part in an identification parade in front of Mr Huynh, but he had then withdrawn his consent to participate. When that occurred, Mr Huynh was asked to look at a photo board. In these circumstances, it was argued, Mr Huynh must have assumed prior to viewing the photo board that the suspect would be included in it.

27 The judge ruled that Mr Huynh's photo board identification evidence was admissible. His Honour held that the array of photos was fair and appropriate. He said:

With respect to [defence counsel's] submissions that the others have different skin tone, colour and facial structure which are said to be different and obvious, I have reviewed each of the particular exhibits ... [T]he colouring is indeed different from time to time, but I do find the skin tone, the colour and the facial structure all very appropriate mixes. As I have noted they all have a broader lower half of the face, similar to that of the accused.

...

In the end as I say, in looking at that particular photo board I am struck by what I regard as an appropriate set of likenesses and that it seems to me that with respect to hair colouring, length of hair, facial hair, the nose, the nostrils, the lips and generally the other features of the face are all broadly similar, the eyebrows if I did not mention that, it seems to me all of these things are broadly similar with each of the photographs.

28 As to the appearance of persons in the photo board without hat and sunglasses, his Honour said:

That is inevitable in the circumstances of the case. Depending on the efforts made by the various accused over time to hide their identity, be it with balaclavas, hats, sunglasses or indeed whatever other means are employed, it may be that the face is entirely obliterated so it is that a photo ID board is simply an impossibility. But in the circumstances this is something to be taken into account.

29 As to whether Mr Huynh must have known that the suspect would appear on the photo board, his Honour set out Mr Huynh's evidence at the committal, in which Mr Huynh had said that he did not know that the suspect would appear on the photo board. His Honour concluded:

It seems to me in the circumstances, as I say, that the police can do no more than they do of telling the person that which they tell them and absent any information or cross-examination that a particular person has actual knowledge that the person they are searching for is actually in the array, then it seems to me that the appropriate procedures have been involved. If there is specific evidence that the person absolutely believes the person is in the array and they therefore set out on a search to find them, then it may be that that calls for a different result, but I'm not satisfied of that in this case.

What is the nature of appellate review, on an appeal against conviction, of a trial judge's decision that s 137 of the Evidence Act 2008 does not require the exclusion of a particular piece of evidence?
Did the admission of Mr Huynh's evidence give rise to a substantial miscarriage of justice?

31 This is the first occasion on which this Court has been called on to give detailed consideration to the nature of appellate review, on an appeal against conviction, of a decision under s 137.[3] (We deal below with the authorities concerning interlocutory appeals.) In New South Wales, by contrast, where the equivalent provision has been in force since 1995, the question has had to be addressed on numerous occasions. In reliance on a series of decisions of the New South Wales Court of Criminal Appeal ('NSWCCA') to which reference will be made,[4] the Crown submitted on this appeal that a decision under s 137 should be treated as being in the nature of a discretionary judgment, such that appellate review was governed ― and limited ― by the familiar principles laid down in House v The King.[5]

32 For reasons which follow, we would reject that submission. Both principle and authority dictate, in our view, that where the facts are not in dispute, the appeal court can and should decide for itself whether the decision under s 137 was correct. That is, the Court should decide whether the trial judge was correct in concluding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused. As will appear, that is how both the NSWCCA and the High Court approached the s 137 issue in the recent case of Aytugrul v The Queen.[6]

33 Plainly enough, s 137 does not confer a discretion properly so-called.[7] As the NSWCCA has pointed out,[8] the section requires the trial judge to undertake an evaluative task. The judge must assess the probative value of the evidence and the danger of unfair prejudice to the accused. If the judge concludes that the probative value is outweighed by the danger of unfair prejudice, the evidence must be excluded. No exercise of discretion is called for.

34 It has been said, however, that the evaluative exercise which s 137 requires is analogous to the exercise of a judicial discretion.[9] In R v Cook,[10] Simpson J said that s 137 was 'akin' to a discretion in the sense that:

whilst there will be cases in which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ.

The analogy was nevertheless quite a limited one, in her Honour's view:

The exercise of judgment [under s 137] is not ... akin to the exercise of discretion in the sense that, if the exercise is not performed in accordance with the section, it cannot then be undertaken by an appellate court. This court may, in my view, consider whether the result of the balancing exercise, even if performed having regard to irrelevant considerations, was correct.[11]

Accordingly, Simpson J proceeded to decide the s 137 question for herself, as follows:

It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not.

I am therefore satisfied that the evidence was wrongly admitted.[12]

35 In R v Mundine,[13] Simpson J concluded that the trial judge had approached the s 137 exercise erroneously (because he had taken into account his own evaluation of the credibility or reliability of the witnesses through whom the relevant evidence was to be given).[14] Referring to Cook, her Honour said:

Where a balancing exercise under s 137 has been shown to have been made on an erroneous basis, the judgment can be undertaken afresh by an appellate court.[15]

Once again, her Honour proceeded to decide the s 137 question for herself. Simpson J concluded that the probative value of the evidence was very high and the danger of unfair prejudice very low, such that s 137 did not require the Court to refuse to admit the evidence.[16]

36 Until recently, however, the prevailing view in New South Wales was that a decision under s 137 was reviewable on appeal (whether an interlocutory appeal or an appeal against conviction) only in accordance with House v The King principles.[17]

37 As mentioned earlier, the Crown submitted that we should follow the New South Wales line of authority. But in September 2011, in Riley v The Queen,[18] the NSWCCA itself declined to apply House v The King principles in reviewing a decision under s 137.

38 In Riley, McClellan CJ at CL (with whom Hoeben J and Grove AJ agreed) referred to two of the earlier decisions (Vickers[19] and Smale[20]) and said:

However, this Court has previously stated that where the facts have been established or are undisputed, 'an appellate court is in as good a position as the trial judge to make that particular decision and thus to conclude that the trial judge was in error' (R v Ford,[21] citing Warren v Coombes.[22])

In the present case I am of the view that the trial judge did not have an advantage over this Court. This Court may consider for itself the 'correct' result of the balancing exercise [under s 137].

... in my view the probative value of the [evidence] is not outweighed by any unfair prejudice and its admission was not unfair to the appellant. To my mind, given the directions by [the trial judge] there was no real possibility that the evidence would have been used by the jury to adopt an illegitimate form of reasoning or that the jury would have given the evidence unfair weight.[23]

39 In our respectful view, the approach adopted in Riley is correct.[24] We note that it has the support of specialist commentators on the Evidence Act. In 2009, the authors of The New Law of Evidence had expressed the following view:

It should not be necessary to demonstrate a House v King error when appealing a decision under s 137 because s 137 is not a true discretion. Although s 137 requires the court to engage in a balancing exercise, and requires a judgment, the conditions for exclusion in s 137 are either satisfied or they are not. Section 137 is a mandatory requirement to exclude evidence when the conditions in s 137 are satisfied. If the question is finely balanced, the appellate court must give weight to the views of the primary judge.[25]

40 Mr Odgers SC has expressed a similar view in his Uniform Evidence Law:

It is suggested that the better view is that, in general, appellate review of this provision is not limited by the House v The King criteria. The High Court has rejected any suggestion that, if a decision being appealed can be described as a discretionary decision, it necessarily follows that the appeal can only be allowed if the criteria identified in House are satisfied.[26] The fact that the decision of a court involves weighing and balancing various factors does not of itself mean that an appeal court is not in as good a position as the trial judge to make that particular decision, and thus to conclude that the trial judge was in error.[27] The weight of authority is to the effect that considerations of witness credibility, where a trial judge may well be in a better position to make assessment than the appellate court, are excluded from the balancing exercise required under the provision. Unlike a determination of an appropriate sentence for a convicted offender, where it is accepted that there is no single right answer, the question posed by this provision is answered by a 'yes' or 'no' answer. While it would be appropriate for an appellate court to give weight to the views of the trial judge where the latter had distinct advantages over the appellate court when engaging in the balancing exercise, that would not usually be the case.[28]

41 The nature of the appellate review of a decision under s 137 had not been the subject of argument in Riley.[29] Nor, apparently, was that question canvassed in Aytugrul v The Queen, either in the NSWCCA[30] or on the appeal to the High Court which followed.[31] On each occasion, the appeal court appears to have assumed that the ground of appeal concerning s 137 should be approached on the basis that the court would decide for itself whether the probative value of the relevant evidence was outweighed by the danger of unfair prejudice.

42 In Aytugrul, the relevant ground of appeal contended that DNA evidence had been wrongly admitted. The issue was whether the evidence ought to have been excluded under either s 135 or s 137.[32] The majority of the NSWCCA concluded that there was no unfair prejudice and, accordingly, that no question arose under either s 135 or s 137.[33] McClellan CJ at CL, in dissent, approached the question in the same way but came to the opposite conclusion, holding that the risk of unfair prejudice 'substantially outweighed' the probative value of the evidence.[34]

43 On appeal to the High Court, the same approach was adopted. That is, the question which the Court addressed was whether s 137 (or s 135) required the exclusion of the evidence, not whether it had been open to the judge (in the House v The King sense) to conclude that it did not. The plurality judgment (French CJ, Hayne, Crennan and Bell JJ) formulated the issue in these terms:

In this case, the question was whether [the expert's] evidence of an exclusion percentage ... was evidence whose probative value was outweighed by the danger of unfair prejudice (s 137) or was evidence whose probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendant or, perhaps, be misleading or confusing (s 135).

No reason is shown for answering either form of those more particular questions in favour of the appellant. The evidence given was clear.[35]

In assessing the danger of unfair prejudice to a defendant, regard must be had to the whole of the evidence that is to be given, particularly by the witness to whose evidence objection is taken. When that is done in this case, recognising, in particular, the evidence that it was proposed to lead from the witness about the derivation of the exclusion percentage, there was no danger of unfair prejudice that required rejection of the exclusion percentage.[36]

In the result, their Honours concluded, there was neither 'a wrong decision of any question of law' nor 'on any other ground a miscarriage of justice'.[37] They said:

The appellant did not demonstrate that the evidence given at the trial which expressed results of the DNA testing as an exclusion percentage was evidence the probative value of which was outweighed by the danger of unfair prejudice to the appellant. Neither s 137 nor s 135 of the Evidence Act was engaged. The appeal should be dismissed.[38]

45 In the circumstances, the approach adopted by the High Court must be regarded as having authoritatively determined the issue presently under consideration. Accordingly, we now turn to consider whether the judge was right to conclude that s 137 did not require the exclusion of the identification evidence.

46 Before we do so, it is important to point out that the conclusion we have reached about the nature of appellate review differs from the approach taken by this Court when dealing with like questions at the interlocutory appeal stage. In interlocutory appeals from decisions under s 137, the Court has proceeded on the basis that appellate review of such a decision before trial is governed by the principles in House v The King.[39]

47 In K J M v The Queen (No 2),[40] a five member bench of this Court addressed this issue when considering an interlocutory appeal from a ruling under ss 97 and 101 of the Evidence Act. Under s 101(2), neither tendency evidence (s 97) nor coincidence evidence (s 98) can be used against an accused unless:

the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

It can be seen that the character of the decision which a judge must make under s 101 is essentially the same as that of a decision under s 137. That is, the judge must weigh up the probative value of the evidence against 'any prejudicial effect it may have', and decide whether the former 'substantially outweighs' the latter.

48 The Court in K J M followed a unanimous five-member bench of the NSWCCA in D A O v The Queen[41] in holding that an interlocutory appeal from a decision under ss 97/101 was governed by the principles in House v The King. The Court said:

In our view, the case for appellate restraint at the interlocutory appeal stage is even stronger in this State than in New South Wales. In contrast to the system of interlocutory appeals operative there, the Criminal Procedure Act 2009 allows a defendant to seek to challenge an evidentiary ruling by way of interlocutory appeal. The clear legislative intention, however, is that interlocutory appeals on evidence should be strictly confined.

Like the NSWCCA in D A O, we should emphasise that this is a decision about the nature of an interlocutory appeal from a ruling under s 97. The nature of appellate review of such a ruling on a conviction appeal is a separate question, to which different considerations may apply.[42]

49 The position of a court hearing an appeal against conviction is, of course, quite different from that of a court hearing an interlocutory appeal before the trial commences. Leaving aside the 'unsafe and unsatisfactory' ground, an appeal against conviction will only succeed if it is established that:

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.[43]

50 On the appeal against conviction, the appeal court is able to review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence. The question is whether the decision of the trial judge not to exclude the evidence under s 137 was 'an error...in, or in relation to the trial' and, if so, whether it was productive of a substantial miscarriage of justice. That question can only be answered by considering the trial in its entirety.

51 Obviously enough, the legal character of a decision under s 137 remains the same whether the decision falls to be examined at the interlocutory appeal stage or after the trial is concluded. But that does not, in our view, preclude the adoption of a different standard of appellate review on a conviction appeal from that which applies to an interlocutory appeal. Such a difference of approach is to be explained by the different functions, and perspectives, of the appeal court at those different stages of the proceeding. It is also to be explained ― perhaps decisively ― by what the court in K J M identified as the clear intention of the Criminal Procedure Act that interlocutory appeals on questions of evidence 'should be strictly confined'.[44] No such constraint applies to appeals against conviction.

Should the photo board evidence have been excluded under s 137?

1"> 52 The onus of establishing that evidence should have been excluded under s 137 of the Evidence Act lies on KM.[45] His counsel relied on similar arguments to those made at trial in support of his submission that the photo board evidence had little, if any, probative value, and that any probative value that Mr Huynh's identification evidence did have was outweighed by the danger of unfair prejudice to the appellant. He submitted that there was a considerable risk that the jury would give excessive ― and hence unfair ― weight to the identification evidence.

53 The photographs were chosen by a police officer using a facial recognition program which selects photographs of individuals with similar appearance to the suspect. We have viewed the photo board shown to Mr Huynh. Like the trial judge, we do not consider that there was any unfairness in the selection of the other photographs included on it. Like his Honour, we are struck by the similarities of appearance between the individuals included.[46]

54 All of the men had dark hair and appeared to be of similar ages. Most had broad lower faces and were olive skinned. Although KM was described as having a dark complexion, he was not darker in colour than others on the board. The situation cannot be compared with that in Blick,[47] where the witness who identified the appellant was presented with a photo board on which the accused was the only man with a goatee beard.

55 At the trial, Mr Huynh was cross-examined about his identification of KM. He said that it was the men's complexion that led him to think they were Middle Eastern. He agreed that he had not said anything in his initial statement to the police about the man's facial features; he had not been able to see the man's forehead or hairline; and had not told police on the day of the incident that he could see the man's eyes through his glasses.

56 In re-examination, Mr Huynh said that, when the man pushed him, he was very close and he could 'look directly into his eyes, although the sunglasses were dark'. When asked to look at the photograph by the police, he had put his hands over the face and looked at the eyes and half of the nose, so he could look at the photograph 'clearly on his eyes'.

57 Before Mr Huynh viewed the photo board, he was told that:

You'll be asked to look at a photograph of images. The fact that the images are shown to you should not influence your judgment. You should not conclude or guess that the group of photographs contain the image of the person you've been asked to identify. You're not obliged in any way to identify anyone or anything. Please view each photograph carefully. Indicate if you can identify any person whose photograph is displayed. Please do not discuss the case with other witnesses, nor indicate to other witnesses in any way that you have or have not identified someone.

He said that he was told to read the procedure and to look at the photographs carefully. He had not spoken to Detective Stewart while he was viewing the photo board. He was not cross-examined about whether he was told that the photo board contained a photograph of a suspect in custody.

58 Even if Mr Huynh had given evidence that he had known the police were holding a suspect, this would not necessarily have required the exclusion of his evidence. In T H D v The Queen, the trial judge had decided that the fact that the witness was told prior to viewing the photo board that police had a suspect in custody did not warrant the exclusion of the identification evidence. The judge ruled as follows:

[T]hat kind of comment does not instruct the person that they should or would be making a positive identification. It does not direct somebody to the particular person to identify ... The comments, as they may have been made to [the witness] ... is not a sufficient basis for rendering the photo board itself and the identification from the photo board itself unfair.[48]

The Court agreed, adding that the trial judge would be required to give careful directions to the jury about the dangers of identification evidence, both generally and in the circumstances of the case.[49]

59 There were, of course, legitimate criticisms to be made of the evidence in the present case. Mr Huynh's identification of the appellant occurred two months after the robbery, and was based on his relatively brief encounter with the taller offender, who had pushed him on to a chair. The fact that the offender was wearing dark glasses might also have made it more difficult to accurately identify him.

60 Nevertheless, in our view, the identification evidence had significant probative value. The offender and Mr Huynh had been at very close quarters ― albeit briefly ― and he had made the identification of KM without difficulty.[50] Moreover, we are not persuaded that there was any danger of unfair prejudice, that is, of the identification evidence being given undue weight.

61 Had there been any danger of unfair prejudice, it would in any event have been removed by the very careful directions which the judge gave the jury. Thus, the trial judge warned the jury that they were not to attach any significance to the fact that KM was identified from a photograph held by the police, because the police had photographs of 'many different people for a variety of reasons'.

62 His Honour also gave detailed and considered directions to the jury about the limitations of identification evidence based on a single viewing of an accused person, who was not previously known to the witness, and directed the jury on matters which might affect the reliability of Mr Huynh's evidence. His Honour said that:

It is for you to determine whether Mr McCartney has been identified as the person who robbed Mr Huynh. Before you can convict him, you must be satisfied of that identification beyond reasonable doubt. However, before you make that decision, I must give you some warnings about the evidence. To help you to understand the reason why I must give you these warnings, I will briefly explain the three stages that are involved whenever an identification is made.

First, the witness must have observed someone committing the crime. Second, the witness must have retained an image of that person in his or her mind until the time of the identification. Third, the witness must have later seen the accused (or a picture of the accused in this case) and identified him as being the person seen committing the crime.

Difficulties can arise at each of these stages. In relation to the first stage, the circumstances in which the observation was made may not have been ideal. For example, there may have been limited time for the observation. The lighting may have been poor or the person he saw may have been - and you know the circumstance in this case of course, what is put by Mr Edney and I will remind you of it, the hat and the glasses, that kind of thing.

In relation to the second stage, the witness might have difficulty remembering what the person he saw looked like, especially if that person was only seen fleetingly or there was a long time before the identification took place. That may lead difficulties at the third stage in accurately identifying the offender from a selection of photographs.

Because of these difficulties, identification evidence is potentially unreliable. Yet despite this potential unreliability, witnesses often claim that they are sure of their identification. Because they believe in their identification they appear to be honest and convincing witnesses, however there is a difference between honesty and accuracy.

Even though witnesses may honestly believe they have identified the accused, they may be mistaken, so you must not assume that just because a witness is honest, his or her evidence is reliable. You also should not assume that because in this case there are two different identifications, that the identification evidence is necessarily reliable.

Experience has shown that a number of witnesses can all be mistaken in their identification. This is because the same uncertainties I have just been telling you about can affect more than one witness.

It is therefore important that you take special care before accepting identification evidence as true. The experience of the law has shown that people have been wrongly convicted because even respectable and honest witnesses have given mistaken evidence confidently identifying them as the offender.

Because of this risk of unjustly convicting the wrong person, identification evidence must be treated with great care. I am not saying that you should not rely on identification evidence. However, to avoid a possible miscarriage of justice, you must take the potential unreliability of identification evidence into account in determining whether you accept such evidence and if you do accept it, in deciding what weight to give to that evidence.

You should examine all identification evidence with special care and be especially cautious before accepting such evidence as correct and relying on it. If, after careful examination of the identification evidence, and in light of all the circumstances and other evidence given in the case, you are satisfied beyond reasonable doubt that the accused was correctly identified, then you can use the evidence in reaching your verdict. Having given you that general warning, that general warning obviously applies to both identifications, the Senior Constable and Mr Huynh.

I want to look at some of the specific factors that affect the reliability of an identification and there are three factors that you must examine when considering identification evidence: The circumstances in which the offender was observed, the characteristics of the witness who gave the evidence and the way in which the accused was identified, and you must examine each of those factors closely, along with any other relevant factors when deciding whether to accept the identification evidence.

63 His Honour proceeded to set out for the jury all of the features of the identification evidence which were said by the defence to undermine its probative value. He directed the jury that those matters must be carefully considered by the jury in deciding whether they were satisfied beyond reasonable doubt that KM had been 'correctly identified'. The directions were exemplary, in our respectful view.

64 For the reasons we have given, there was no 'error in, or in relation to, the trial' within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009. Ground 1 therefore fails.

65 Ground 2 alleges that the verdict of the jury on charge 1 was unreasonable and could not be supported having regard to the evidence.

66 Several witnesses gave evidence for the Crown in relation to the armed robbery of the Hawthorn Post Office. Only one witness, Peter Williams, gave evidence that he had observed one of the offenders holding a knife. Mr Williams, who was working at the counter on that day, said that two people came behind the counter where he was serving a customer, and said to him, 'This is a robbery, keep your eyes looking down to the ground', which he did. By looking sideways, he saw

the two men behind the counter rummaging through the drawers for each register, and another person guarding the front door of the premises, while he could hear another person in the back office. Mr Williams said in evidence:

I saw the guy that was guarding the door to stop going from the public area into the staff area, at one stage I glanced along and I thought I could see a knife in the left hand.

67 In his charge, the trial judge described the CCTV footage as follows:

What you see is that man in the grey jumper coming in, you see him in the bottom right hand corner. My comment to you is it looks like he is changing something from one hand to the other before he goes around the back of the counter and then of course you see something in one of his hands. That is my comment to you. If that is helpful, you will accept it, if you do not, you will reject it.

68 His Honour directed the jury as follows regarding evidence of the knife:

The prosecution says it is a knife. Of course, Mr Edney's argument to you is, how could you find that to be a knife? I will remind you of Mr Edney's submissions, but as I understand, what he is saying is 'Well, you know, you see what you see, there might be a glint, but what causes a glint? How are you going to be satisfied that in this case, as it is alleged, that that was a knife? How are you going to be satisfied of that beyond reasonable doubt and that that was part of the agreement?' That is, you go down to the next step.

As I understand his argument to you, and he will tell me in a break if I am wrong, he is just simply saying you cannot find beyond reasonable doubt whatever - if you find something is in that person's hand, you could never be satisfied it was a knife because of course it is just - you get one man thinking it might be and you get that video which is inconclusive and he is saying for that reason, you would not be satisfied beyond reasonable doubt about that element even if you are satisfied it was Mr McCartney.

69 The appellant contends that, in these circumstances, the jury should have had a reasonable doubt about whether his co-offender was holding a knife. At the hearing of the appeal, counsel for the appellant conceded that it appeared that the co-offender was holding an object, but submitted that it was not clear what that object was.

70 The test for determining whether a jury verdict is unreasonable and cannot be supported by the evidence was recently revisited by the High Court in S K A v The Queen.[51] In that case, French CJ, Gummow and Kiefel JJ referred to the oft-cited passage in M v The Queen, in which Mason CJ, Deane, Dawson and Toohey JJ explained that:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

71 We have viewed the CCTV footage for ourselves. It shows that, over a period of approximately a minute, the co-offender had an object in one hand which he shifted to the other hand. The object appears to have a point. In our opinion, the trial judge's description of the CCTV footage in his jury charge was entirely fair.

72 We consider that it was well open to the jury, on the basis of the evidence of Mr Williams and the CCTV footage, to conclude that the appellant's co-offender in the Hawthorn Post Office robbery was armed with a knife.

74 After hearing KM's plea in mitigation of sentence, the trial judge sentenced him as follows:

75 The sole ground of appeal against sentence was that 'the learned sentencing judge erred by imposing a sentence that offended the principle of totality'.

76 KM had an extensive criminal history, including 97 prior convictions between November 1996 and April 2006. (Twenty-six of these were interstate convictions.)[52] Many of his prior convictions were for similar offences to those to which this sentencing appeal relates.[53]

77 On 5 April 2005, Judge Barnett sentenced KM to a total effective sentence of seven years and three months' imprisonment, with a non-parole period of four years' imprisonment (the '2005 sentence'). That sentence arose out of KM's guilty plea to 28 offences, which included six counts of robbery, one count of attempted robbery and one count of armed robbery, together with counts of handling stolen goods, theft, burglary, causing injury intentionally, common assault, criminal damage and possessing a drug of dependence.[54] At that time, KM had been in custody for 607 days.[55] He was released on parole on 5 November 2008, having served more than five years under the 2005 sentence.

78 KM had been on parole for around three and a half months when he was arrested on these charges on 18 February 2009. His parole was revoked by the Adult Parole Board six days later. Thus, from 24 February 2009 he was serving the remainder of the 2005 sentence (the 'parole sentence') and was also on remand for the 18 February 2009 offences.

79 By the time he was sentenced by Judge Parsons on 11 July 2011, KM had served two years and five months of the parole sentence. Only a little over a month of that sentence remained to be served, which was due to expire on 19 August 2011.[56] Because the offences were committed when KM was on parole, the sentencing judge was required to order that the sentences he imposed be served cumulatively on the parole sentence, unless there were exceptional circumstances.[57] The learned sentencing judge accepted that there were 'exceptional circumstances' and ordered that the sentences he imposed commence immediately.[58] The effect of this order was to reduce the sentence to be served by KM by one month and eight days.[59]

80 In his sentencing reasons, the learned trial judge took account of the fact that KM was on parole when he offended and that the offences were premeditated.[60] His Honour referred to the five victim impact statements tendered to the Court and described the victims as having 'suffered considerably' as a result of KM's offending.[61]

81 The judge also considered the remarks made by Judge Barnett in sentencing KM in April 2005, which included a description of KM's personal history and circumstances.[62] Judge Barnett referred to a psychologist's report which found that KM had an above average full scale IQ of 105 points. Although KM's non-verbal score was 105, his scores for perception and organisational skills scores were 114.[63]

82 KM had had a destructive childhood, as he was the victim of physical abuse by his mother, and his uncles. He smoked cannabis from the age of 12, started drinking alcohol at 14, and used amphetamines for a brief period in 2003,[64] when his partner left with his young daughter and he was unable to locate them.[65] Judge Barnett said that despite the disruption to KM's schooling due to his 'destructive upbringing', he completed years 11 and 12 at TAFE.[66] Whilst in prison, he was studying for a degree in social work at the Institute of Koori Education at Deakin University.[67]

83 Having considered the sentencing remarks of Judge Barnett, the learned sentencing judge noted that KM had done what he could to 'turn [his] time in prison to good effect' and in particular, he had taken on the role as a Koori peer worker. His Honour considered samples of KM's artwork, and concluded that he had 'real talent in that regard'.

84 Although his Honour described KM as an 'intelligent and talented young man', he found that KM's likelihood of re-offending as 'sadly, fairly significant', given his levels of previous offending.[68] His Honour said that:

I am on balance satisfied that the chances of your rehabilitation depend on how successful you are in completing further education and continuing your current trajectory as a peer support, whilst in prison over the next period of years. If you successfully complete all that, and most importantly when you are released from gaol you are able to move away from the community which apparently you regard as a source of your problems, then there are some prospects of your rehabilitation.[69]

85 The judge referred to the principle of totality,[70] but said that general deterrence was of 'considerable importance' for this type of offending since it involved 'soft targets'.[71] He gave weight to specific deterrence because of KM's prior offending.[72]

86 His Honour noted in KM's favour that, during the two year delay between the commission of the offences and imposition of sentence, KM had sought to rehabilitate himself whilst in custody.[73] He also acknowledged that 'the attendant anxiety, with respect of the inevitable goal sentence, has been something which has weighed heavily with you'.[74]

87 The judge noted that, at the date of sentence, KM was aged 31 years and had been in custody since approximately 2003 when he was 24. (That was when he was remanded in custody for the offences the subject of the 2005 sentence.)

88 In support of the appeal against sentence, KM contended that the judge had given insufficient weight to the principle of totality. He submitted that the sentences imposed were at the upper end of the scale for armed robbery and robbery, although he conceded that, considered alone, the individual and total effective sentences for these charges were probably not manifestly excessive.

89 However, in this case, KM could not claim the benefit of more than two years of pre-sentence detention, because he was serving the parole sentence while on remand for the offences to which this appeal relates.[75] Counsel submitted that in applying the principle of totality, his Honour was required to have regard to the entire term of imprisonment which KM would be required to serve. When the sentences to which this appeal relates were combined with the sentences imposed by Judge Barnett, KM could be required to serve 13 years and five months' imprisonment,[76] with a non-parole period of eight years and two months, for the totality of his offending.[77] This was said to be disproportionate to the criminality involved in the 2005 and 2009 offending.

90 The Crown submitted that the sentences imposed by Judge Barnett were comparatively lenient, having regard to the gravity of those offences and KM's long history of offending. In imposing those sentences, Judge Barnett had given KM a chance to rehabilitate himself.

91 Further, the sentences against which KM is now appealing were well within the range of his Honour's sentencing discretion. KM had continued to offend despite the relatively low 2005 sentences, and had re-offended after being released on parole. The offences were serious ones, involving premeditated robberies in company with other offenders on soft targets. In these circumstances, the sentences imposed on these charges were entirely appropriate and neither the individual sentences or total effective sentence offended the totality principle.

92 The principle of totality requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted.[78] The principle was initially held to require a sentencing judge to take account of the fact that an offender had served or was serving a sentence for other offences committed at or about the same time as those for which he or she fell to be sentenced.[79]

93 Thus, in Mill v The Queen,[80] the High Court took totality into account when an offender had been sentenced in Victoria and later fell to be sentenced in Queensland, for offences which had all occurred within a six week period. The Court held that the proper approach to totality was to ask what head sentence was likely to have been imposed if all of the offences had occurred in one jurisdiction and the offender had been sentenced for all of them at the one time.[81]

94 In Postiglione v The Queen,[82] however, the High Court made clear that the application of the totality principle was not confined to this situation. McHugh J said:[83]

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.

The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:[84]

When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.[85]

95 The totality question also arises squarely when, as here, offences are committed while the offender is on parole for earlier offences and, by the time the offender falls to be sentenced, parole has been cancelled because of the later offences.[86] The judge imposing sentence for the later offences must assume that the offender will be required, as a consequence of the breach of parole, to serve the remainder of the original sentence (the 'parole sentence').[87] In the present case, of course, no such assumption was necessary, since by the time KM was sentenced, he had served almost the whole of the parole sentence.

96 It is clear that the sentencing court must ensure that the combined effect of the sentence to be imposed for the later (parole-breaching) offences and the parole sentence served (or to be served) for the earlier offences is not disproportionate to the total criminality represented by the two sets of offences.[88] As we have said, counsel for KM contends that in this situation, the Court should have regard to the entirety of the original sentence, including the period served before KM was released on parole. On that approach, the Court should recognise that KM may have to serve a custodial sentence of 13 years and five months.

97 As this case illustrates, the evaluation of the total criminality constituted by the two sets of offences is made all the more difficult because the seriousness of the later offences is aggravated by the fact that they were committed while the offender was on parole.[89] The fact that the current offences occurred while KM was on parole for the 2005 offences indicates that he has not learned from his past mistakes. The sentences imposed had therefore to give considerable weight to denunciation and to specific and general deterrence, given the need to deter both parole violation and further offending.[90]

98 In R v Berkelaar,[91] which was decided before this Court's decision in R v Piacentino,[92] Buchanan JA implicitly accepted the submission that, where an offender was sentenced for offences committed while on parole, the sentencing judge was required to take account of the whole of the period served by the offender for the earlier offences. Callaway and Chernov JJA concurred in the result in that case, but expressed no view on the question whether the whole of the period served, or only the additional period to be served as a consequence of the breach of parole, had to be taken into account in applying the totality principle.

99 In R v Alashkar[93] and again in R v Mangelen,[94] however, this Court had regard only to the additional parole sentence which the offender was required to serve. In the latter case, Redlich JA (Ashley JA concurring) said that:[95]

An evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence.[96] It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[97] The court must then consider whether the sentence imposed for the subsequent offending and which breached the parole has produced an overall result out of proportion to the criminality represented by the two sets of offences.[98] The court may intervene if the total sentence is an "unjust or inappropriate measure of the total criminality involved".[99] In such a case the new sentence which the appellant has been required to serve might be moderated[100] so that the total of the sentences to be served does not offend the totality principle.[101]

100 That being the approach we must follow, it is necessary to consider whether the total sentence in this case (including the parole sentence) was disproportionate to the totality of KM's offending, appropriate weight being given to the fact that the offences for which KM fell to be sentenced occurred shortly after he was released on parole. Taking the parole sentence of two years and five months into account in this case means that KM may be required to serve a total of eight years and seven months' imprisonment for the offences committed while he was on parole.

101 The judge said that he had taken account of totality. Having regard to KM's extensive history of similar offending, the gravity of the offences for which KM fell to be sentenced, and his relatively poor prospects of rehabilitation, we do not consider that there was any breach of the principle of totality, proper account being taken of the requirement to serve the parole sentence.[102]

102 For these reasons, we would dismiss the appeal against sentence.

[1] The abbreviation is for ease of reference, not for anonymity.

[2] Prior to the jury empanelment, there was discussion about the evidence in chief that would be given by Senior Constable Norman. It was agreed that he would simply to say that the appellant was 'known'.

[3] Cf Hawker v The Queen [2012] VSCA 219, where the point was not argued. In that case, T Forrest AJA said that the test to be applied in deciding whether evidence should have been excluded under s 135 or s 137 was whether it was 'open' to the trial judge to admit the evidence. However, the approach to be taken on an appeal relating to s 137 of the Evidence Act 2009 does not appear to have been argued.

[7] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, 138-9.

[10] [2004] NSWCCA 52 [38] ('Cook').

[11] Ibid (Ipp JJA and Adams J concurred).

[12] Ibid [48], [49] (emphasis added).

[14] In reaching that conclusion, her Honour applied R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.

[16] Ibid 311 [49] (McClellan CJ at CL and Grove J concurred).

[17] Vickers [2006] NSWCCA 60; (2006) 160 A Crim R 195 [76] (appeal against conviction); C A N v The Queen [2007] NSWCCA 176 [43] (appeal against conviction); Smale v The Queen [2007] NSWCCA 328 [32] (appeal against conviction); R v S J R C [2007] NSWCCA 142 [34] (interlocutory appeal); R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428 [27], [43] (interlocutory appeal); Louizos v The Queen [2009] NSWCCA 71; (2009) 194 A Crim R 223 [23] (appeal against conviction); R v O'Keefe [2009] NSWCCA 121 [49].

[18] [2011] NSWCCA 238 ('Riley').

[23] [2011] NSWCCA 238 [161]-[163] (emphasis added).

[24] See also R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504, 514−5, [45] (Basten JA).

[25] Jill Anderson, Neil Williams SC and Louise Clegg, The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Acts (2nd ed, 2009) 137.15 (footnotes omitted).

[26] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; R v Ford [2009] NSWCCA 306 [78] (Campbell JA).

[27] See R v Ford [2009] NSWCCA 306 [84] (Campbell JA).

[28] Stephen Odgers, Uniform Evidence Law (10th ed, 2012) [1.3.14840].

[35] [2012] HCA 15; (2012) 286 ALR 441, 449−50 [23], [24].

[39] DPP v M D (2010) 29 VR 434; Singh v The Queen [2011] VSCA 263 [26]-[28]. See also T H D v The Queen [2010] VSCA 115; (2010) 200 A Crim R 106, 113 [31].

[42] K J M [2011] VSCA 268; (2011) 211 A Crim R 546, 548−9 [13]-[14].

[44] See also R v D G (2010) 28 VR 127, 132-3 [32]-[36].

[45] Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593, approved by this Court in R v D G (2010) 28 VR 127, 138.

[46] See also T H D [2010] VSCA 115; (2010) 200 A Crim R 106, 109 [10]-[11].

[50] See [15] above.

[52] R v Kasey McCartney (Unreported, County Court of Victoria, Judge Parsons, 11 July 2011) ('Parsons Reasons') [9].

[53] Including burglary, theft, aggravated burglary, possessing house breaking implements, theft from motor vehicle, entering building with intent to steal, handling/receiving stolen goods and robbery/assault with intent to rob.

[54] R v Kasey McCartney (Unreported, County Court of Victoria, Judge Barnett, 5 April 2005) ('Barnett Reasons') [5].

[58] That would, in any event, have been the effect of s 15(1) of the Sentencing Act.

[59] Parsons Reasons [24]-[25]. In addition the judge declared that the appellant had spent six days in pre-sentence detention: [30].

[75] Because of this Court's decision in R v Broad [1999] VSCA 149; [1999] 3 VR 31, 35 [11].

[76] This figure does not appear to take into account the effect of the order that the current sentences should commence on the date of sentence (and not on the expiry of the term of imprisonment being served with respect to the earlier offences), which effectively reduced the appellant's sentence by a month.

[77] Elsewhere in the submission, it was stated that the appellant was arrested on 7 August 2003. If that was the case, he would have served approximately 14 years imprisonment, assuming he served the total effective sentence to which he was sentenced in 2011.

[78] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8 (McHugh J); R v Piacentino [2007] VSCA 49; (2007) 15 VR 501, 514-5 [60] (Eames JA) ('Piacentino').

[79] See also Thorpe v The Queen [2011] VSCA 346 [49] where the Court cited a passage to this effect from Davis Thomas, Principles of Sentencing: the sentencing policy of the Court of Appeal Criminal Division (2nd ed, 1979).

McCartney v The Queen [2012] VSCA 268

At a glance

Court

Decision date

Before

Source

Judgment (222 paragraphs)

McCartney v The Queen [2012] VSCA 268 (9 November 2012)

Parties

Legislation Cited (1)

Cases Cited (17)