McDonald v R

1. The grounds of appeal against conviction are as follows: 1. Her Honour erred by allowing the prosecution to adduce evidence of post-offence conduct. 2. Her Honour erred by allowing the DNA evidence to be admitted into evidence.

The offences

1. There was no dispute that the offences had been committed. The only issue was whether the applicant was the offender.
2. The victim was a woman aged in her early sixties who worked as a cleaner at the Byron Bay Beach Café adjacent to Clarkes Beach in Byron Bay. She commenced her duties on 20 August 2008 at about 2.30 am. She parked her car in the adjacent car park. At about 4.00 am she made herself a cup of coffee while she was waiting for floors to dry and she went to an outside dining area. The offender approached her. He was wearing a balaclava and a pair of gloves and was holding long wooden stake.
3. The victim reached forward towards the stick but the offender told her to get back inside, pushing her in that direction. She said, "please don't hurt me." He asked for the whereabouts of the cash registers and then requested tools to open them. The victim provided him with tools which included a screwdriver and a pair of snub-nosed pliers which he used to loosen the drawers of two cash registers. He became frustrated because he was having difficulty and asked the victim for a cigarette. She gave him one and at his request she held it with her fingers while he smoked it. She said it burnt down to her fingers and she dropped it on the floor. He grabbed a drinking glass and put the butt into it; making the comment that he was "not so stupid as to leave my DNA lying around." He placed the glass as well as the screwdriver and pliers into a plastic bag (a small bin liner).
4. The offender treated the victim in a physical way, pushing her at times with the wooden stake. The victim felt unable to leave. At one stage he told her that if she went to the police he would come back and kill her and come after her family. Over a period of possibly ten to fifteen minutes, the victim was required to remain in the presence of the offender, no more than a few feet away from him.
5. The offender seized a quantity of alcohol and he made the victim help him to carry the alcohol and the cash registers to her car. He put the bag containing the cigarette butt and other items on the floor behind the driver's seat. The victim asked the offender to put down the timber stake as it was frightening her and he did so. He told her, "don't you ever tell the police that I used this". The offender snatched the car keys from the victim. He insisted that she move into the passenger seat, pushing her and telling her to "hurry up".
6. The offender drove through several streets in the Byron Bay area. At one point he stopped the car. He told the victim that he was horny and asked her to suck his penis. She was crying and pleading with him not to do anything to her. He grabbed her left breast and pulled at it in a very forceful fashion, causing considerable pain. This behaviour continued for some minutes.
7. The offender then drove further to a slightly more isolated area at Ocean Street adjacent to bushland where he stopped and told her to get out of the car. He began taking the stolen items out of the back seat area. She heard the sound of breaking glass. The offender then started pulling and fondling her breasts and genitals through her clothing. This continued for a matter of minutes. The victim was terrified, fearing that she would never again see her family, including her great-grandchildren. The offender then told her to get into the driver's seat and leave. However, he warned that if she went to the police he would kill her and come after her family.
8. The victim drove directly to her son's home and he took her to the Byron Bay Police Station where the matter was reported.

The investigation

1. An investigation was commenced by officers including Senior Constable Bridget Wisemantel. (She was unavailable to give evidence at the trial due to ill-health, a matter relevant to Ground 2.) She had taken the victim back to the café and then to the Ocean Street location where the incident with the offender had concluded. Ms Wisemantel's notebook entry was before the jury which was to the effect that at 6.40am at Ocean Street she collected exhibits including "3 x cigarette butts" and "1 x glass piece".
2. The relevant page from the police station exhibit book was also before the jury. It indicated that, amongst other things, three cigarette butts and a piece of clear broken glass had been entered into the exhibit records at 7.20am on 20 August 2008. The entry was signed by Ms Wisemantel and countersigned by Leading Senior Constable Anthony Bordin. The entry was said to relate to an aggravated break and enter and an abduction for which the offender was "unknown".
3. Ms Wisemantel had been on night shift and concluded her duty that morning at 7.30 am.
4. Meanwhile, at about 7.00 am, police found the applicant sleeping face down in the grass in a location not far from Ocean Street. He was offered a lift home but he declined and walked away.
5. At about 8.30 am, Senior Constable Kelly Rampling, a crime scene officer, attended the Byron Bay Beach Café with Senior Constable Rachelle Adams to carry out an examination. Nothing was found that would assist in identification of the offender.
6. At about 11.35 am, Ms Rampling and Ms Adams went to a holding yard near the Byron Bay police station and examined the victim's car. It was of significance that on the rear floor behind the driver's seat there was broken glass and a cigarette butt. (The victim gave evidence that she had thoroughly cleaned her car, inside and out, the previous day.) Photographs were taken and the butt was collected for later examination.
7. Ms Rampling said that Ms Adams collected the butt and she, Ms Rampling, put it in a paper exhibit bag which was then sealed with exhibit tape. The same procedure was followed in relation to another item that was seized (not presently relevant). The pair then went to the police station where the exhibit bags were handed to Mr Bordin in order for him to make entries in the exhibit book. They left this task to him as they had to attend another crime scene.
8. In cross-examination, Ms Rampling confirmed that the cigarette butt had been photographed where it had been found before being collected and placed in an exhibit bag. Counsel asked questions directed to having the officer confirm that all procedures to guard against contamination and to ensure continuity of the item had been followed. No inquiry was made of her as to the possibility of anything untoward having occurred. There was no suggestion of any misconduct.
9. At about 11.40 am, three police officers attended a location on Ocean Street following a radio broadcast. They walked along a track through bushland towards Tallows Beach and came across the applicant and another man, Joshua Chubb. Mr Chubb had a backpack and when asked what was in it the applicant replied, "Beach stuff, we were going for a swim". The backpack was found to contain a number of bottles of alcohol. The applicant said they had found them in the bush. Mr Chubb said that he had found the items when he went into the bush to go to the toilet. He showed police the location where it could be seen that there were items covered with beach towels. The pair were arrested (for goods in custody) and taken to the police station. The applicant was interviewed that afternoon and then released without charge.
10. Ms Rampling, with Ms Adams and Senior Constable Thompson, went to the bushland area off Ocean Street at about 1.15 pm. Various items taken from the Byron Bay Beach Café were found under the beach towels: for example, cash register drawers, bottles of alcohol and receipts in the name of the café.
11. On 26 August 2008, Detective Senior Constable Duncan King seized a number of items from the applicant, including a silver flat link neck chain. The victim said that the offender had worn a silver neck chain and, referring to it, he said to her, "You didn't see this". She described the chain to police and when subsequently shown the chain seized from the applicant she identified it as the one worn by the offender.
12. Ms Mary Gardner, the owner of the house where the applicant was living at the time of the offence, gave evidence that she found a pair of pliers after he moved out shortly after the offence. It was the Crown case that these were of similar appearance to those the victim said had been used by the offender to try and loosen the drawers of the cash registers.
13. On 31 October 2008 an order was made pursuant to the Crimes (Forensic Procedures) Act 2000 (NSW) for the applicant to attend the Byron Bay police station on 7 November 2008 to provide a DNA sample and submit to being photographed. He failed to attend.
14. A DNA sample was eventually obtained from the applicant after he was arrested on 25 November 2010. Subsequent analysis revealed that his profile was the same as that found on one of the cigarette butts found at Ocean Street at 6.40 am on 20 August 2008 by Ms Wisemantel and that found on the cigarette butt found in the victim's car by Ms Rampling and Ms Adams at about 11.35 am that day.

The Crown's circumstantial case

1. The Crown's case was based upon circumstantial evidence involving (primarily) the following components: 1. The offender wore a distinctive silver chain necklace of similar appearance to one which the applicant wore. 2. Pliers used by the offender in his attempt to break open the cash registers were of similar appearance to a pair found at the home where the applicant lived. 3. Ms Gardner's evidence that the applicant was not at home at the relevant time. 4. An inference of consciousness of guilt arose from the applicant lying about being home at the relevant time. 5. The applicant was found in Ocean Street about 2½ hours after the theft of a quantity of alcohol and he was in a condition consistent with being affected by alcohol. 6. The applicant was found at about 11.30 am the same day in the vicinity of the stolen property. 7. An inference of consciousness of guilt arose from the applicant failing to comply with a court order to attend a police station to provide a DNA sample. 8. The applicant's DNA profile matched those found on the cigarette butts found in the back of the victim's car and in the vicinity of where the offender had left her in Ocean Street.

Ground 1 - error in allowing evidence of post-offence conduct

Background

1. The applicant was charged on 8 October 2007 with unrelated offences of robbery in company; assault occasioning actual bodily harm in company; assault occasioning actual bodily harm (x 2); assault; and larceny. He was remanded in custody until he was granted bail by the Supreme Court on 4 February 2008.
2. In respect of the present matters, the applicant was arrested on 20 August 2008 but released later that day without being charged.
3. On 22 August 2008 the applicant was charged with unrelated offences of assault, offensive behaviour, larceny, damaging property and failing to quit licensed premises. He was remanded in custody. He was conditionally discharged in respect of these matters pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) on 13 October 2008, whereupon he was released from custody.
4. The charges preferred against the applicant in October 2007 were finalised on 29 October 2008. Two charges were no-billed, three culminated in not guilty verdicts and there was a conviction for assault. A sentence of 3 months imprisonment was imposed but it was backdated to the date of arrest, meaning that the applicant remained at liberty.
5. Returning to the present matters, after the applicant failed to attend for the forensic procedure on 7 November 2008 he went to live in Queensland. Police caused a warrant for his arrest to be issued but it was not executed until he was found in Byron Bay on 25 November 2010. The failure to attend the forensic procedure constituted the post-offence conduct the subject of this ground.
6. The Crown Prosecutor did not open on this issue. She simply mentioned that police obtained an order permitting the taking of a DNA sample from the applicant and that there was a long delay between obtaining the order and obtaining the sample.
7. When the officer in charge of the case, Detective Senior Constable King, was giving evidence the prosecutor asked him if on 31 October 2008 he made an application for a forensic procedure order. An objection was taken by counsel for the applicant.

Submissions to the trial judge

1. In submissions made in the absence of the jury, counsel argued that in explaining why his client did not attend the police station and absented himself for two years it would be necessary to disclose other matters which had brought involvement by his client in the criminal justice system at around the same period and subsequently. It was foreshadowed that the applicant's explanation for not attending for the forensic procedure was that he felt he was being persecuted by the police as he had been in the recent past. Counsel submitted, "His reason for fleeing is inextricably linked to the … recent criminal history".
2. Another matter raised by counsel for the applicant was that in explaining his absence from the jurisdiction for about two years it would be necessary to refer to another serious matter (causing grievous bodily harm with intent) for which a warrant was issued for his arrest sometime in 2009 or 2010. He was subsequently tried for that matter in 2012 and acquitted.
3. Counsel relied upon the authority of R v Cook [2004] NSWCCA 52 as supporting his contention that the evidence was not admissible pursuant to s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value (which was conceded) was outweighed by the danger of unfair prejudice.
4. The Crown Prosecutor submitted that the evidence would not require the applicant to disclose anything about his other involvement in the criminal justice system in that it would not include any mention of the length of time he had been "on the run" (some two years) and would be limited to the fact that he failed to attend for the forensic procedure.

Ruling on admissibility

1. The trial judge gave a judgment in which she referred to the provision in s 137; summarised the competing submissions; and discussed the authority upon which the applicant relied. She identified the "unfair prejudice" asserted by the applicant as "the need by the accused to adduce evidence of his criminal history in order to explain apparently incriminating conduct". R v Cook was distinguished on the basis that in that case the applicant's explanation for the consciousness of guilt evidence required disclosure of criminal conduct described as "disturbingly close" to the alleged conduct the subject of the trial.
2. Her Honour considered that the probative value of the evidence in the present case was "high" in that the forensic procedure was directed, in part, to obtaining DNA evidence that might link the applicant with the offences in question.
3. As to the danger of unfair prejudice, her Honour noted that it was unnecessary for the applicant to disclose his criminal history in order to explain his failure to attend for the forensic procedure. He was not wanted by police in respect of any outstanding matters at the relevant time (although he was later). It was unnecessary for him to raise his criminal history because there was no relevant criminal history; the applicant had been acquitted of the relevant matters, unlike the situation in R v Cook. (No attention appears to have been given by anyone to the fact that the applicant had been convicted and sentenced on 29 October 2008 for an offence of assault. The applicant did not place any specific reliance upon it in this Court.)
4. Her Honour acknowledged that there was a danger of unfair prejudice where a person has been charged in the past but considered that in this case the danger was not the same as where a person had been convicted; the applicant had in fact been acquitted. She concluded: "So when I weigh the probative value which is high against the danger of unfair prejudice which is not particularly significant, it is my view that the test in s 137 is not satisfied and so the evidence will be admitted."

The evidence before the jury

1. The evidence which was then placed before the jury was confined as follows: "Q. Detective King yesterday when we broke off in your evidence, we got to a stage where you had started talking about a forensic procedure order? A. Yes. Q. Now an order was made on 31 October 2008 that required the accused to submit for a forensic order, specifically the taking of his DNA? A. Yes that's correct. Q. The accused was aware of that order? A. Yes the accused was present when that order was made. Q. He failed to attend - the order required that he attend on 7 November 2008, correct? A. To present by 5pm on 7 November. Q. On or before 7 November 2008? A. Yes that's correct. Q. He failed to attend in accordance with that order? A. That's right. Q. At a later time the accused - a DNA sample was taken from the accused? A. Yes it was."

Submissions in this Court

1. Counsel for the applicant in this Court (who did not appear at the trial) submitted that the evidence concerning the failure to attend for the carrying out of the forensic procedure should have been excluded on the basis that it had "minimal relevance". This was on the basis that it was not "proximate to the offence"; it related to an order made by a court; and it could readily be explained by a number of factors not necessarily consistent with a consciousness of guilt.
2. It was submitted that in order for the applicant "to properly meet the evidence he had to give evidence and introduce evidence that he [had] previous and significant dealings with the police". For this reason, the evidence was "clearly prejudicial" and should have been excluded pursuant to s 137 of the Evidence Act.
3. It was also contended that her Honour further erred "by not giving the proper direction to the jury about the evidence".
4. The written submissions were only amplified in oral argument by a claim that the relevance of post-offence conduct is greater when it is more contemporaneous with the offence in question. Where it is more remote, there is a greater possibility of explanations aside from consciousness of guilt. Counsel conceded that there had been no complaint made at trial concerning the directions the trial judge had given the jury about the use of this evidence.

Consideration

1. The complaint about jury directions may be immediately rejected. No error in the directions was identified and nor is any apparent. They included the usual caution about people not always acting sensibly when accused of serious offences; that there may be possible innocent explanations for the conduct such as panic, fear of unjust accusation, or reasons aside from consciousness of guilt of the offences in question. Counsel's concession that no complaint was raised at trial is fatal to this aspect of the argument.
2. The complaint about relevance may also be rejected. The time that had passed between the commission of the offences and the requirement for the applicant to attend for the DNA procedure had little, if anything, to do with relevance. To the extent that a passage of time might have been relevant, it was from when the applicant became aware of the interest of the police in obtaining his DNA and his failure to appear for the procedure (a period of a week). Moreover, counsel at trial conceded that the evidence had probative value and confined his argument to the danger of unfair prejudice. The trial judge found that the probative value was high. That finding was open to her.
3. For the applicant to succeed in establishing that her Honour was in error in not excluding the evidence pursuant to s 137, he must demonstrate that she was incorrect to find that the probative value of the evidence outweighed the danger of unfair prejudice: R v Cook at [38] (Simpson J, as her Honour then was).
4. The trial judge allowed for the possibility that the applicant might want to disclose that he had recently been charged by police with various offences but then acquitted. She accepted that there would be a degree of prejudice in this but not to the extent of outweighing the probative value of the evidence. I cannot see error in this assessment for the reasons which follow. (As it turned out, the applicant provided an explanation which did not involve reference to any other criminal proceedings.)
5. In R v Cook, the appellant had been tried for an offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. The Crown led evidence that he evaded police when they attempted to locate and arrest him. The appellant had objected to the evidence on the basis that there was unfair prejudice inherent in his explanation for the conduct: he would be required to disclose previous violence towards women and breach of an apprehended violence order.
6. Counsel for Mr Cook submitted: "Where the explanation involves revealing further offences generally the discretion should be exercised in favour of exclusion." Simpson J considered authorities relied upon for this proposition and concluded: "[47] In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct."
7. However, her Honour then (at [48]) referred to the fact that the proposed explanation by the appellant not only involved disclosure of other offences, but that such offences had a "disturbingly similar relationship with the offence with which he was charged". This involved prejudice which was unfair which outweighed the probative value of the flight evidence which should have been excluded.
8. The circumstances in R v Cook illustrate the extent of prejudice that may be inherent in an explanation for post-offence conduct relied upon by the prosecution as founding an inference of consciousness of guilt. But the prejudice in that case was substantially greater than in the present case. The gist of the applicant's explanation was that he feared being falsely accused. Putting aside the plausibility of such a claim, the trial judge was correct to conclude that this did not require disclosure of past criminal proceedings to an extent that would involve unfair prejudice that outweighed the high probative value of the evidence. I am not persuaded that there was any error in the decision to admit the evidence.
9. The directions given to the jury appropriately highlighted the need for consideration of whether the conduct was explicable by consciousness of guilt as opposed to some alternative explanation. The jury were also directed that even if they did conclude the explanation was consciousness of guilt, it was simply one aspect of a circumstantial case and could not possibly prove any of the offences on its own. There was no danger of the jury misusing the evidence or giving it greater weight than it deserved.
10. A fundamental misconception underlies this ground. There was never any attempt made by the applicant to place evidence before the trial judge on the voir dire to establish that his failure to appear for the DNA procedure had anything to do with other unrelated offences with which he had been charged. What was put on his behalf was that the other matters which he did not wish to have to disclose to the jury provided "the reason for fleeing" and for his absence from the jurisdiction for an extended period. But the Crown did not rely upon "flight" at all.
11. I would refuse leave in respect of this ground as it is entirely without substance.

Ground 2 - erroneous admission of DNA evidence

1. The trial commenced on Monday 11 February 2013. The Crown informed the court that Ms Wisemantel was not available to give evidence due to ill-health until at least 28 February. The applicant did not seek an adjournment. Rather, an application was made for a permanent stay of proceedings; alternatively that all of the DNA evidence be excluded pursuant to s 137 of the Evidence Act.
2. One of the theories underpinning the defence case was that, because the applicant was innocent, something must have gone awry with the DNA evidence that implicated him. There must have been either inadvertent contamination of the exhibits either whilst they were in police custody or at the analytical laboratory, or there had been deliberate tampering in order to falsely incriminate him.

Submissions to the trial judge

1. Counsel for the applicant contended that he would be denied the opportunity to cross-examine the officer and thereby raise matters said to be relevant to her credibility. Her Honour summarised these matters in her judgment, which I will refer to shortly. (There was no suggestion that there was anything inaccurate about the summary, or that her Honour had omitted reference to anything material.)
2. The purpose of the proposed cross-examination of the officer was explained at quite some length in the submissions of counsel. In essence, it was to establish that the officer had a motive to lie, to tamper with evidence, and generally to falsely incriminate the applicant. Continuity of custody of relevant exhibits was also an issue.

Judgment of the trial judge

1. The judge refused the application for a stay and ruled that the evidence was admissible.
2. Her Honour acknowledged that the DNA evidence was an important, but not the only, aspect of the Crown's case. She noted that the applicant wished to raise three matters in relation to the contention that there was a possibility of deliberate tampering with the evidence, two of which depended upon the officer being available for cross-examination.
3. The first matter concerned an incident in 2004, not involving the applicant, where a person was at a police station and Ms Wisemantel alleged that he had conducted himself in an intimidating fashion towards her. The person was charged with intimidation but the proceedings were discontinued. There was a suggestion that this was likely because CCTV footage was inconsistent with the officer's version. Her Honour observed that nothing other than hearsay material by way of background to the incident was before her (a letter by a solicitor containing a submission that the prosecution be discontinued). It was not known with any certainty why the proceedings were discontinued. Nor was it known whether there had been any adverse finding made against the officer.
4. The second matter concerned the applicant having assaulted and resisted Ms Wisemantel and another officer in the course of their duty. An appeal against his conviction for these offences was heard and determined on 15 August 2008. The appeal was dismissed. Her Honour said that the issue in those proceedings was whether the applicant's arrest was lawful and therefore whether the officers were acting in the course of their duty. The credibility of Ms Wisemantel did not appear to have been an issue.
5. The judge said that nothing was put to suggest why these events might have motivated the officer to lie about matters the subject of the present proceedings. The prosecution had been successful in that the applicant had been convicted and an appeal had been dismissed.
6. The third matter the applicant wished to raise was a question of whether the sequence of certain events in Ms Wisemantel's statement was correct. She said she went to the café where she collected the timber stake carried by the offender, returned to the police station and then went to Ocean Street where the cigarette butts and other items were seized. Other evidence suggested that she may have proceeded directly from the café to Ocean Street before returning to the police station. The judge acknowledged that the officer's account of the sequence may be wrong. But she could not see how an erroneous recollection of a seemingly unimportant sequence of events supported an argument that she was willing to fabricate evidence.
7. The judge was not satisfied that there was any evidence that Ms Wisemantel had any opportunity or means to deliberately tamper with evidence associated with the DNA issue. Her Honour adequately summarised the basis upon which a permanent stay of a criminal trial may be granted on the basis for which the applicant contended: where the court is satisfied that no fair trial could be held; any prejudice to an accused person could not be cured by an appropriate direction to the jury; and the circumstances need to be exceptional: see, for example, Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23. Her Honour was not satisfied that a basis had been established and the application was rejected.
8. Her Honour then referred to an authority upon which the applicant relied for exclusion of the DNA evidence pursuant to s 137 of the Evidence Act: R v Sing [2002] NSWCCA 20; 54 NSWLR 31. That was a case in which there was no explanation or justification for the Crown not calling important witnesses on a DNA issue. Her Honour distinguished it from the circumstances of the present case where the absence of the witness was explained and justified. She also noted that Ms Wisemantel had no involvement in the second of the two items providing DNA evidence, the cigarette butt found by other officers in the victim's car.
9. Her Honour concluded that the cross-examination of Ms Wisemantel that the applicant was denied the opportunity to pursue "was very speculative indeed" and she was "not satisfied that having regard to the manner in which the defence wants to conduct its case, the probative value of admitting the DNA evidence is outweighed by the danger of unfair prejudice".
10. There was a further matter the applicant wished to raise and that concerned whether Leading Senior Constable Bordin, who entered in the exhibit book some of the items seized on 20 August 2008, was the same person with that surname who had been the subject of some criticism concerning a statement he had made supporting a false claim made by a fellow officer in 1988. Her Honour noted that whether he was the same officer or not was not clear. I note that Mr Bordin was called to give evidence and her Honour refused to allow the cross-examination on the basis that it could not "substantially affect the assessment of the credibility of the witness" (it was too remote in time and different in nature) and, alternatively, on the basis that the evidence would be "misleading, confusing and a terrible waste of the court's time" (ss 103 and 135 Evidence Act).

Submissions in this Court and response

1. Despite the assertion in the statement of the ground that the trial judge erred in admitting the DNA evidence, the written submissions for the applicant failed to articulate the nature of the error asserted. They repeated the assertions that the DNA was an important aspect of the prosecution case and that it was necessary for the defence to discredit it.
2. The submissions included reference to Ms Adams not having been called to give evidence in relation to the finding of the cigarette butt in the back of the victim's car. That had nothing to do with the decision of the trial judge to admit the evidence. It is notable as well that Ms Rampling gave direct evidence of locating and recovering that cigarette butt which was not challenged.
3. The submissions included a complaint about Ms Wisemantel's collection of cigarette butts at Ocean Street that was based upon an erroneous understanding that those butts were said to be associated with the location of the stolen goods (AWS [29]). The butts were found in the area where the victim said the offender unloaded the stolen goods from her car and allowed her to leave. The stolen goods were found elsewhere, secreted in nearby bushland.
4. It was also contended that there was "an evidentiary hole in the Crown's case" in that there was no evidence that the three butts collected by Ms Wisemantel were collected from the road (AWS [31]) - but the respective cases at trial were conducted upon an acceptance that they were recovered from the vicinity of where the car had stopped in Ocean Street. (The applicant's evidence was that he was in the habit of traversing that area when walking to and from the beach and he was in the habit of dropping cigarette butts.)
5. There were other matters raised in the written submissions of the same nature. They were directed to the strength of the evidence on the DNA issue, not its admissibility, and certainly not directed to establishing error in the ruling of the trial judge.
6. The oral submissions for the applicant included an attempt to challenge whether Ms Wisemantel was "unavailable" for the purposes of s 65 of the Evidence Act. But it was accepted that the applicant made no such challenge at trial. His counsel appears to have been content to accept that she was "physically unable to give the evidence and it is not reasonably practicable to overcome that inability" (cl 4(1)(c), Pt 2 of the Dictionary to the Evidence Act). The applicant's counsel informed the trial judge that there was "a medical certificate suggesting the officer was unavailable until 28 February". On the third day of the trial, counsel informed the judge that the Crown was proposing to tender the officer's notebook as well as the relevant exhibit book entries and said: "I won't be opposing the tender of those documents on the basis that the maker's unavailable".
7. Despite there having been no issue as to unavailability raised at trial, counsel maintained that there was no hurdle to his reliance upon this argument on appeal on the simple basis that there had been objection to the admissibility of the DNA evidence. That proposition runs counter to what was said about raising an entirely new argument as to admissibility of evidence on appeal in Bin Sulaeman v R [2013] NSWCCA 283 at [133]-[143] and Poniris v R [2014] NSWCCA 100 [51]-[56]. In the latter, Macfarlan JA held that r 4 of the Criminal Appeal Rules applies in such a situation.
8. I would refuse the applicant leave to rely upon the contention that it was not established that Ms Wisemantel was unavailable. It was completely contrary to the position he took at trial and no attempt was made to provide this Court with any evidence to establish that the officer could have been available to attend and give evidence.
9. Counsel for the applicant also sought to raise for the first time a complaint that Ms Adams was not called. I would refuse leave to rely upon this point as well, particularly in light of the fact that the evidence of Ms Rampling was not challenged.
10. Before leaving this ground I make the observation that there is no merit in the general assertion of the applicant that the DNA evidence was marred by the possibility of contamination or deliberate tampering. There is nothing that gives cause for any unease about the evidence of the police locating and collecting the relevant items. The evidence established a complete chain of custody of the items from finding through to analysis at the laboratory. And, according to the evidence of the senior forensic biologist, Mr Clinton Cochrane, the possibility of contamination in the laboratory was so remote as to not be a realistic possibility at all.
11. A further observation should be made. There is an air of unreality about the applicant's complaint that the unavailability of Ms Wisemantel for cross-examination by the applicant about her possible male fides towards him gives rise to a question about the integrity of the DNA evidence. The involvement of the officer was confined to the recovery of exhibits at the café (the wooden stake) and at Ocean Street (the butts and piece of glass) prior to her going off duty at 7.30am on the morning of the offences. This was well before the police had any inkling that it may have been the applicant who was the offender. How she could have, and why she would have, done anything at that early stage to manipulate or fabricate evidence against the applicant was never explained.
12. I would refuse leave in respect of this ground as well.

Application for leave to appeal against sentence

1. There are four grounds of appeal against sentence: 3 Her Honour erred by incorrectly applying the principles of Henry's case in sentencing the applicant. 4 Her Honour erred by taking into account the use of violence and/or the use of a weapon as an additional aggravating feature. 5 The sentence imposed by her Honour for detain for advantage was manifestly excessive and as such her Honour erred. 6 Her Honour failed to have proper regard to the special circumstances of the applicant during sentence.

Ground 3 - incorrect application of Henry

1. It was contended that the sentencing judge erred in her comparison of the case at hand with the typical case described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 by finding the present case was more serious because the applicant was armed and used some level of violence. It was noted that the use of a weapon and violence are included in the features of the typical case in Henry. The submission was to the effect that her Honour had used the Henry guideline as a "starting point" and thereby erred by regarding those two features as operating in aggravation.
2. This was clarified at the hearing of the application. The contention is that, given one of the factors in the typical case described in R v Henry is "limited, if any, actual violence but a real threat thereof", it amounted to double counting for the judge to regard this case as more serious because it included as an aggravating feature the actual use of violence.

Consideration

1. The relevant passage of the sentencing remarks is: "In relation to the aggravated robbery, in addition to the aggravating feature that forms an element of the offence, that is depriving the victim of her liberty, other features that tend to aggravate the offence are that a weapon was used, albeit a relatively makeshift weapon, the wooden stake. There was actual violence in the sense that the offender at times pushed the victim and pushed the wooden stake against her. There is no evidence of anything other than very limited planning, but some level of planning must have been involved because the offender was wearing a balaclava, or an item that had been made to serve the purpose of a balaclava. The deprivation of liberty that is the aggravating feature lasted for the period that the offender and the victim were at the café, possibly a period of about ten or fifteen minutes. In sentencing the offender for the robbery matter, the Court has regard to the Henry guideline judgment. Many of the features that characterised the typical case described in Henry are present in this case. The offender was a young man with a relatively limited criminal history. The victim was a vulnerable person as she was in a relatively isolated location by herself, and from time to time went outside the premises so had no protection. There was a limited degree of planning. However, the duration of the robbery and the aggravating features to which I have referred make this a worse case than the typical case described in Henry."
2. Later, in the context of referring to comparative cases, her Honour added: "[I]t must be borne in mind that in the case of Henry, the discount received by the typical offender that resulted in a sentence of four to five years reflects a significant discount for a plea of guilty from the starting point for sentence. In this case there is no discount to be applied for any plea of guilty."
3. Although R v Henry was directly related to an offence of robbery whilst armed, contrary to s 97(1) of the Crimes Act, it has been held to be relevant to sentencing for an offences of aggravated robbery contrary to s 95: R v Tortell; R v Tsegay [2007] NSWCCA 313 at [14] (McClellan CJ at CL). See also Azzi v R [2008] NSWCCA 169 at [37] where Hall J referred to Henry being a "relevant reference point" in relation to sentencing for an offence against s 95.
4. It would be clearly wrong to use a sentencing guideline as a starting point in the assessment of sentence. As was made clear by Spigelman CJ in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [113], a guideline is a matter to be "taken into account" only as a "check" or "sounding board" or "guide".
5. I cannot discern that her Honour erred by using the guideline as a "starting point". It seems that she used it in the correct manner as described in R v Whyte. She concluded that the present case was worse than that described in Henry. Her Honour raised that as a possible finding with counsel for the applicant who responded in terms that it was difficult to argue with that proposition.
6. I do not accept that there was any "double counting" involved in her Honour's assessment of the robbery offence being more serious than that described as the typical case in R v Henry. There may have been some infelicity of expression in her Honour's ex tempore judgment but the conclusion was one which counsel then appearing for the applicant accepted could be reached and, in my view, was appropriately reached. The applicant was a person with a not insignificant criminal history who was up and about at 4.00 am in the morning and who, whilst disguised with a balaclava and gloves and armed with a makeshift weapon, bailed up a cleaner over a fairly sustained period so as to break in to cash registers at a café and otherwise steal property worth a not inconsiderable sum of money. There was also, of course, the absence of the final feature of the typical case: a plea of guilty.
7. There is no merit in this ground.

Ground 4 - error in taking into account use of violence and/or use of a weapon as aggravating features

1. Under this ground it was submitted that her Honour had erred in another way by taking into account the use of violence as an aggravating feature. This was said to be erroneous because "the use of violence is an element of a s 95(1) offence where the aggravating feature is depriving the victim of their liberty". The authority for that proposition was said to be R v Mauai [2005] NSWCCA 207. It was also said to be erroneous for her Honour to take into account the use of a weapon as an aggravating feature because, being the method used to restrict the liberty of the victim, that constituted corporal violence.

Consideration

1. Section 95 is in the following terms: "95 Same in circumstances of aggravation (1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. (2) In this section, "circumstances of aggravation" means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, (b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (c) the alleged offender deprives any person of his or her liberty."
2. In the present case the indictment averred the circumstance of aggravation as being the deprivation of the victim's liberty. In a case where there was also the use of corporal violence, or the intentional or reckless infliction of actual bodily harm, those factors would operate in further aggravation. Accordingly, it was entirely correct for her Honour to have regard to the use of a weapon and actual violence as aggravating features in this case.
3. It may be accepted that in R v Mauai it was held that a sentencing judge had erred by taking into account the actual or threatened use of violence as an aggravating feature in sentencing for a s 95(1) offence. This was said to be on the basis that the essence of robbery is that violence is done or threatened, citing R v Foster (1995) 78 A Crim R 517 at 522. However, in Hamze v R [2006] NSWCCA 36, after referring to R v Foster, Giles JA said: "[26] Accordingly, while either threatened use of violence or actual use of violence is necessary, actual use of violence is not necessary. The victim may be threatened and thus submit to the theft; perhaps unusually, force may be used against the victim to effect the theft without a preceding threat, as by a striking from behind. Where the victim is threatened with the use of force, and the force is then used, there is more to the offence, which is more serious than if there is a threat of force alone. The present case is of this kind. The limitation in regard to an aggravating factor is not to be applied mechanically, but to give effect to the common law preclusion of double counting by increasing the offender's punishment because of something already taken into account by virtue of the conviction (after trial or on a plea of guilty). It was sufficient for the applicant's conviction that there was the threat of violence, and I do not think it correct to say that in this case actual violence was an ingredient of the offence for the purposes of the limitation in s 21A(2). … [28] However, it would be an error in this case to take threatened use of violence into account in aggravation of the offence. R v Street [2005] NSWCCA 139 at [32]-[34] appears to have turned on the judge's failure in explanation, without necessarily accepting the submission that the matters in paras (b) and (c) were elements of the offence of armed robbery. In R v Ibrahimi [2005] NSWCCA 153 threatened violence had been taken into account as one of the matters under s 21A, and it was accepted at [18] that there was error (although with reference to "some threat of force or actual force" as the element of the offence). The judge's reference to "actual violence against Mr Kalib" related only to count 1, and from "they" and "indeed" the preceding reference to the threatening use of violence related to both count 1 and the robbery offence on the Form 1. In my opinion, the judge did take into account as an aggravating factor the threatened use of violence, and was in error in doing so."
4. In the present case the judge did not take into account the "threatened use of violence" only the "actual violence". Moreover the impact upon the assessment of sentence must have been extremely minimal given that her Honour immediately noted that what was involved was mere pushing of the victim. This ground is not established.

Ground 5 - sentence for count 2 (detain for advantage) is manifestly excessive

1. It was submitted under this ground that the detain for advantage offence did not contain any significant additional criminality to the robbery offence. That was because the latter included as its aggravating feature that the applicant had deprived the victim of her liberty. The judge regarded this offence as "an unplanned extension of the robbery offence" (ROS 8.1).
2. The applicant also relied upon the finding that there was no planning; the period of detention was not long; and that it could not be said that the emotional trauma suffered by the victim which the judge took into account was specific to this offence as distinct from the other offences. It was submitted that when factors relevant to the other offences were excluded from consideration, the gravity of the conduct of the applicant in relation to this particular offence should have been viewed as being less.
3. In oral submissions it was contended that the detain for advantage offence "contributed no additional criminality".

Consideration

1. The sentencing judge's assessment of the seriousness of the detain for advantage offence appears in the following passage of her remarks: "In relation to the kidnapping offence, some of the factors that the Court needs to take into account when assessing the objective seriousness of the matter are the factors described in R v Newell [2004] NSWCCA 183 at [32], including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. In this case, the period of the detention was not overly long but nor was it a short period. It is difficult to estimate the period of the detention but somewhere in the vicinity of fifteen minutes to half an hour provides an approximate estimate of the duration of the detention. The circumstances of the detention are that the offence of kidnapping in effect was an unplanned extension of the robbery offence. It appears that having become frustrated with his inability to remove the cash drawers and obtain goods that were readily portable, the offender decided that he would utilise the victim's vehicle and he would thereby achieve the advantage of avoiding police detection, and having a means of conveying items from the premises. The victim's circumstances are that she was vulnerable. Apart from being in a relatively isolated location in the early hours of the morning, she is a petite, older woman, and the offender is a very large and fit young man. As I have mentioned, it is my view that there was a very low level of planning associated with this offence."
2. There was additional criminality inherent in this offence. It is one thing to say that the victim was traumatised by the circumstances of the robbery at the café but such trauma was considerably exacerbated by her being taken away in her own car by a violent offender who threatened her and her family if she reported the matter to the police. Particular regard should be had to the fact that the victim had no way of knowing for how long she was going to be detained or where the applicant was intending to take her. Her trauma must have also been enhanced by the fact that the applicant indecently assaulted her on two occasions and she had no means of knowing what else was going to befall her.
3. The applicant had the benefit of the judge ordering that the sentence for the detain for advantage offence be entirely subsumed within the sentence imposed for the other offences. This was a generous approach as some level of partial accumulation would have been appropriate to reflect the additional criminality: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] (Howie J).
4. This ground must be rejected.

Ground 6 - failure to have regard to special circumstances

1. Counsel for the applicant explained at the hearing of the application that by "special circumstances" he was not referring to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) but to the subjective circumstances of the offender.
2. In written submissions counsel identified the relevant matters as being the applicant's age; the period of delay and the extent of rehabilitation in the intervening period; that there had been two periods of custody with a significant intervening gap; and the fact that the applicant appeared to have a drug and alcohol problem at the time of the offending and had a mental illness including depression. The ground was further developed at the hearing in regard to the last matter. Reference was made to the report of Dr Furst which had been tendered to the sentencing judge. It was submitted that the applicant had "a significant history of mental illness" and there was reference in the report to him having been prescribed antipsychotic medication. The overall submission made by counsel for the applicant in relation to this issue was to the effect that greater weight should have been given by the judge to the content of the report.
3. Otherwise it was submitted that the applicant was aged 19 at the time of the offence and 24 at the time of sentence and in the intervening period he had taken certain steps towards rehabilitation including having completed courses, qualifying as a gym instructor and he had family support. It was acknowledged that the judge had noted those matters but I take the submission to have been that they were deserving of greater weight.

Consideration

1. Dr Richard Furst, forensic psychiatrist, interviewed the applicant in May 2013 and reviewed documents including reports by other mental health professionals who had had contact with the applicant when he was in custody from 22 August to 13 October 2008. The historical material set out in Dr Furst's report included that the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder and had been prescribed antidepressant medications in his early teens. Drug use, particularly cannabis, had been a feature of his teenage years. Excessive consumption of alcohol had taken over in his latter teenage years and continued. When he was in custody in 2008 he had been prescribed a combination of antipsychotic medications.
2. A clinical nurse consultant who examined the applicant on 25 August 2008 was of the opinion that he exhibited symptoms suggesting psychosis and major mood disorder. A psychiatrist who assessed him on 2 September 2008 thought he was suffering from a mild, residual drug induced hallucinosis. There was an increase in his antipsychotic medication in September and he was transferred to the Mental Health Screening Unit on 24 September after an apparent threatened suicide. However a psychiatric registrar did not identify any objective signs of psychosis. He was regarded as narcissistic with possible antisocial traits but treatment with antipsychotic medication was continued.
3. Dr Furst expressed the opinion that the applicant had "early behavioural and attentional problems", probably meeting the criteria for Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. He said that he probably met the criteria for Major Depressive Disorder on various occasions in the past. He agreed with a doctor who had seen the applicant in August 2008 that his reported auditory hallucinations over the past several years were atypical. There were few other outward signs of a serious psychotic illness such as schizophrenia.
4. Dr Furst said that the applicant "may well have been experiencing auditory hallucinations at the time of the offences in question … as they were noted after his arrest by Dr Ian Korbel and other psychiatrists in custody. However, 'the voices' in question are more likely to be part of drug or alcohol-induced hallucinosis … rather than a feature of a more serious psychotic illness".
5. Dr Furst was of the opinion that the greatest clinical concern was the applicant's history of heavy drinking over several years and substance abuse. Under the heading "psychiatric and psychological mitigating factors", he wrote: "In my opinion, the most salient influences on his mental state were his drinking, effects of alcohol on his mood and behaviour, and general instability of mood by virtue of either a depressive disorder and/or his borderline personality disorder. He was also hearing negative 'voices', as described above. His judgment may well have been affected by those experiences and his tendency towards low mood, notwithstanding he maintains he was not responsible for the offences in question. He was probably suffering from some symptoms of depression in residual form, which can make people more impulsive and irritable, especially when intoxicated."
6. The sentencing judge referred to the report of Dr Furst and in particular to the various diagnoses that had been attributed to the applicant over the years. She also referred to the history of alcohol and drug abuse. Later in her remarks she said that there did not appear to be any evidence of the applicant being intoxicated or affected by mental illness at the time of the offences, having regard to the description of his behaviour which was not consistent with somebody who was highly intoxicated or in the throes of psychosis or hallucinations or anything of that nature. The judge concluded on this subject as follows: "The offender, as I have mentioned, has not received any specific diagnosis of mental illness in any event, and for the reasons I have indicated it cannot be suggested, and indeed it has not been suggested, that the offences were causally related to any mental illness from which he suffered. The only matter that has been raised and that could properly be raised in that regard is that the offender has a background of difficulties in the nature of ADHD and depression and substance abuse which provide a context or background to his behaviour. Unfortunately, that does not place him in any special position whatsoever as is typically the case with persons who commit these types of offences."
7. I am not persuaded that any error is disclosed in the manner in which her Honour had regard to the psychiatric report. Nor am I persuaded that her Honour failed to have regard to any other features of the applicant's subjective case, all of which were carefully, albeit succinctly, reviewed in the course of her reasons.

Conclusion

1. The proposed grounds of appeal against conviction have no merit. Leave to appeal should be refused.
2. In relation to the application for leave to appeal against sentence, I have found no merit in any of the grounds and would refuse leave.

Orders

1. I propose the following orders: 1. Leave to appeal against conviction refused. 2. Leave to appeal against sentence refused.

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