Obierzynski v R

Court of Criminal Appeal (NSW)|2019-05-06|Before: Macfarlan JA, Harrison J, Hamill J, Hamill JJ, MacFarlan JA

Judgment

MACFARLAN JA: Having conducted an independent assessment of the nature and quality of the evidence at the trial and on sentence, I am of the opinion that the orders proposed by Harrison and Hamill JJ should be made, for the reasons that their Honours give.
HARRISON & HAMILL JJ: The applicant was tried before King DCJ and a jury in the District Court of New South Wales with his co-accused Mikolaj Nowak commencing on 14 March 2017. They were charged with having taken and driven a motor vehicle on 10 September 2015 without the consent of the owner who was in it at the time in circumstances of aggravation, namely whilst in the company of others. That is an offence contrary to s 154C(2) of the Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years.
The applicant was convicted. He was sentenced on 22 June 2017 to 7 years imprisonment with a non-parole period of 5 years, backdated to commence on 19 September 2016. His Honour backdated the sentence to that date on the erroneous understanding that the applicant had been in continuous custody following the expiration of his revoked parole on 18 September 2016. In the result, the applicant's sentence is in fact only 6 years and 6 months with a non-parole period of 4 years and 6 months.
The significant issue at trial was whether the prosecution had proved that the applicant was one of the offenders who took the Mr Harb's car.
The applicant appeals to this Court on three grounds as follows: 1. His Honour's circumstantial evidence direction failed to direct the jury with respect to the hypothesis that the [applicant] was not responsible for the theft and apply it fairly to the evidence. 2. The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot stand having regard to the evidence, and a verdict of not guilty entered. 3. His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern [sic]) and the sentences are manifestly excessive.

Factual background

The evidence at trial is conveniently summarised in the Crown's submissions. It is to the following effect.
The offence occurred shortly before 1.47pm on 10 September 2015 on Burlington Road, Homebush. The Crown case was that the applicant, armed with a knife, and whilst in company with Mikolaj Nowak and Stefan Gusa, carjacked a Mercedes Benz belonging to Timothy Harb.
It was not in dispute that the aggravated carjacking occurred. The sole issue at trial was whether the applicant was one of the perpetrators.
At about noon that day, Mr Harb parked his vehicle on Burlington Road and met friends for lunch. Upon returning to his vehicle Mr Harb got into the driver's seat and started the engine when he was confronted by the offenders. One of them, armed with a knife, opened the driver's door and said to Mr Harb, "get out of the car, cunt". It was the Crown case that this offender, armed with the knife, was the applicant. The applicant got into the driver's seat, while the other two offenders entered the vehicle via the front and rear passenger doors. The three offenders then drove off.
Mr Indari, a friend of Mr Harb, had been standing across the road at the relevant time and observed the incident. He saw all three males get in the car after Mr Harb got out and drive away, turning right into Rochester Street. Mr Indari almost immediately contacted triple-0. Mr Indari advised the operator of the following details.
There were three males. All were aged around 25 years and wearing black hoodies with black or dark jeans. The male who approached Mr Harb pulled out a knife and told him to get out of the car. He believed this male was of Middle Eastern appearance, was about 6 feet tall and was wearing a baseball hat. Asked by the operator what colour the baseball cap was, he asked Mr Harb "was his cap red?" and Mr Indari then said to the operator "I think it was red". As observed by his Honour and included in his summing up to the jury, he then said to the operator: "I just got a cap". The other two males were Caucasian.
Mr Harb described the male with the knife as a Middle Eastern male of Lebanese background, about 20 to 25 years old, with black facial growth, about 90 kilograms and with no accent. Mr Indari described him as a Middle Eastern male between 22 to 25 years of age with black hair and weighing about 80 to 90 kilograms.
Mr Harb said the male with the knife was wearing dark clothes, namely a cotton cardigan worn open, with a dark coloured T-shirt underneath, blue G-Star jeans and a baseball cap. The officer in charge, Detective Senior Constable Fisher, gave evidence that when he was taking a statement from Mr Harb there was particular mention of the G-Star brand. Detective Fisher said that Mr Harb was uncertain whether the male with the knife had a G-Star jumper or G-Star jeans, but Mr Harb ultimately settled on the jeans.
Mr Indari said that the male with the knife was wearing a black baseball cap, black jumper, blue jeans and closed footwear. In cross-examination, in reference to what he said in the triple-0 call, he agreed that the cap of one of the assailants may have been red.
In relation to the other two assailants, Mr Harb could not describe the second male and did not see a third male. Mr Indari described the second male as Caucasian and 20 to 25 years old (consistent with Mr Nowak), and the third male as 18 to 25 years old with black hair (consistent with Mr Gusa). Notably, Mr Indari ascribed younger age brackets to the second and third males, which is consistent with the fact that the applicant is the eldest of the three men.
Investigating police obtained two sets of CCTV footage from a business premises and a restaurant in close proximity allegedly depicting the same three males taken 1 hour and 45 minutes respectively before the carjacking. It was the Crown case that these three males were the applicant, Mr Nowak and Mr Gusa. It was conceded at trial by counsel for Mr Nowak that he was depicted in the CCTV footage. It was also conceded by counsel for the applicant that Mr Gusa was depicted in it. No concession was made by counsel for the applicant that he was depicted in any of the CCTV footage.
Shortly before midnight the following evening, police stopped the three men together as they were climbing over a high fence around a vacant lot in Powell Street, Homebush. Police located a key to a Mercedes Benz at the base of the fence, as well as a flick knife in the gutter. The key was subsequently confirmed to be the key to Mr Harb's stolen car, and the flick knife was found to have the applicant's DNA on the handle and his thumbprint on the blade. Counsel for the applicant accepted that the knife belonged to the applicant.
When stopped, the applicant was wearing a black Nike cap with a white tick on the front which was identical to the cap worn by a male alleged to be him in the CCTV footage. Mr Nowak was wearing a black Lacoste cap with a crocodile logo above the right ear which was identical to the cap worn by the male conceded by counsel for the applicant to be Mr Nowak in the CCTV. Mr Gusa was wearing shoes with some red-coloured sections which matched those worn by the male who was conceded by counsel for the applicant to be Mr Gusa in the CCTV.
On 17 September 2015, one week after the carjacking, the applicant participated in an ERISP. He denied any involvement in the carjacking, claiming an alibi which he refused to disclose. A crown shaped tattoo on the outside of the applicant's right hand is visible in the video of the interview. A tattoo with a very similar appearance can be seen on the male alleged to be him in some of the CCTV footage. The applicant confirmed that he lived on Park Street, Homebush, and that he owned a Mercedes Benz but a different model to that of Mr Harb. The applicant agreed that he was stopped by police the evening following the carjacking and that the Nike cap he was wearing was his.
A search warrant was subsequently executed at Mr Nowak's residence and an Adidas hoodie matching the one worn by him in the CCTV was seized.
On 19 September 2015, the stolen Mercedes was recovered by police in Chiswick. Mr Harb's number plates had been removed and replaced with stolen number plates. The Mercedes was forensically examined. An expert witness gave evidence that there was a "mixed" DNA profile on the steering wheel, which came from three contributors. The applicant could not be excluded as the major contributor and, statistically, it was "100 billion times more likely to obtain this mixed profile if it originates from the applicant and two unknown individuals rather than if it originates from three unknown unrelated individuals in the Australian population." The expert agreed with the proposition that "his DNA matched that of the major contributor" to the DNA on the steering wheel of the stolen car.
Some months later, at the request of the applicant's then solicitor, Mr Harb participated in a photo board procedure, which included a photo of the applicant. Mr Harb did not select anybody.
The applicant and Mr Nowak did not give or call any evidence at trial. The applicant did not run an alibi or a positive case. Rather, it was the applicant's argument that the Crown had not proven beyond reasonable doubt that he was one of the offenders.
The prosecution relied upon a circumstantial case to establish that the applicant was one of the perpetrators and, in particular, that he was the man who threatened Mr Harb with a knife and got into the driver's seat of the car. That case was comprised of the following pieces of evidence: 1. CCTV footage depicting three males (one of whom was, on the Crown case, the applicant, another his co-offender Mr Nowak and a third male Mr Gusa) at about an hour prior to the offence at the AutoPro Shop on Parramatta Road, Homebush, about 800 metres from the scene of the carjacking. 2. The footage depicted the male, who on the Crown case was the applicant, wearing blue denim jeans, closed in shoes and a dark hoodie which had the brand "RAW" and "G-Star" in white writing on the front and light coloured lining visible around the neck, and a Nike baseball cap with a "swoosh/tick" symbol on the front. The footage depicted the male who on the Crown case was the co-offender Mr Nowak wearing a dark hoodie with white lettering "Adidas" and the Adidas symbol above the name, a dark baseball cap, dark long pants and joggers. The third male was wearing a dark long-sleeved top and dark long pants with a coloured cap with a triangular symbol at the front and joggers which had some red colour on them. 3. CCTV footage taken about 45 minutes prior to the offence depicting three males (who on the Crown case were the same three males) in the underground carpark and passing by the frontage of the "Kammadhenu Restaurant" located on the corner of Burlington Road and Rochester Street, a short distance from where the offence occurred. 4. This footage depicted the three males with one (who on the Crown case was the applicant) wearing blue denim jeans and a dark hoodie which had the brand "RAW" in white writing on the front, the hood having visibly light coloured lining, and a dark coloured baseball cap. The footage depicted the male who on the Crown case was the co-offender Mr Nowak wearing a dark hoodie with white lettering "Adidas" and the Adidas symbol above the name, a dark baseball cap and dark long pants with a dark coloured cap and joggers with some red colour on them. 5. All CCTV footage depicts the same three males. 6. When all three were stopped by police the following evening the applicant was wearing a Nike brand baseball cap with the white "tick", the same as the baseball cap worn in the CCTV footage from the AutoPro Shop by the male who the Crown suggested was the applicant. A Mercedes Benz car key in a sealed snap lock sandwich bag was found in the vicinity and identified as the key stolen in the offence as well as a folding knife in the nearby gutter with the applicant's right thumbprint on the blade. 7. The stolen Mercedes Benz was recovered by police and the steering wheel was swabbed from which DNA was extracted with a mixed profile from which the applicant could not be excluded as the major contributor 8. The applicant's ERISP interview depicted a distinctive tattoo of a large crown on the applicant's right hand, which is consistent with a marking on the right hand of the male who the Crown allege is the applicant in the CCTV footage from the AutoPro shop.

Ground 1

The case against the applicant was entirely circumstantial. It relied upon a combination of the following matters: 1. The discovery of biological material on the steering wheel of the stolen Mercedes Benz that was a mixed profile containing DNA that included the applicant's profile. 2. The applicant being in the company of Mr Nowak and Mr Gusa on the previous day at a place not far from where the offence was committed. 3. The applicant at that time wearing a Nike brand hat matching that worn by "the blue jeans suspect" in the CCTV footage. 4. The knife found in the gutter near to where the applicant was arrested with his fingerprint on the blade and DNA from a mixed profile. 5. The key to the stolen vehicle being located near to where the applicant was arrested. 6. The applicant's appearance in the ERISP bearing a "reasonable resemblance" to the person in the CCTV footage. 7. Mr Nowak's concession that the man who the applicant pulled up with the following day was Mr Nowak and that he was in the same store at the same time with the same group with the person who the Crown contended was the applicant. 8. Mr Indari's description of the three men involved as wearing dark clothing "like black jeans or dark jeans with hoodies, black hoodies". 9. The similarity between the recovered knife and the description given by Mr Harb and the witness.
The applicant emphasised what was said by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 as follows: "[62] It may readily be accepted that 'it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.' That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt. And it does not detract from, and is consistent with, the further proposition that a 'trial judge must be astute to secure for the accused a fair trial according to law.' A trial judge must adequately direct the jury "both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part'; the trial judge is under a 'duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused' (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions 'put fairly before the jury the case which the accused' made. The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel."
The applicant reiterated the uncontroversial proposition that where the Crown case rests substantially on circumstantial evidence, a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: Baden-Clay at [46]; Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at 104.
His Honour's directions on this topic were given in these terms: "In this case the Crown relies, in respect of who the persons were who conducted the carjacking, wholly on what is called 'circumstantial evidence'. I say that because there is no direct evidence from the only available witnesses, Mr Harb or Mr Indari, that they saw either of the accused and can identify that person as being one of the carjackers. The Crown relies on circumstantial evidence: that is, the surrounding circumstances. In relying upon circumstantial evidence the Crown asks you to find certain basic facts, and then from those facts to draw a conclusion as to the existence of a further fact or facts. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video-recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken; but in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the jury is asked to reason in a staged approach. The Crown first asks the jury to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. The jury is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact that the Crown asks the jury to find, based upon the basic facts, is that an accused person is guilty of the offence charged. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation, and it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that you approach a circumstantial case by considering and weighing as a whole all of the facts you find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt. The correct approach is first to determine what facts you find established by the evidence. As I have already told you, any particular fact to be taken into account by you does not need to be proved beyond reasonable doubt. You then consider all of those facts together as a whole and ask yourself whether you can conclude from those facts that an accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because you are not satisfied of guilt beyond reasonable doubt. Of course it follows that you must then find the accused not guilty, but if you find that such a conclusion is a reasonable one to draw from the combination of those established facts, then before you can convict the accused you must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because you are not satisfied beyond reasonable doubt of the accused's guilt. … So in order to satisfy you beyond reasonable doubt of the accused's guilt of the offence, the Crown must first persuade you that the inference or conclusion it relies upon is a reasonable one to draw from the facts that you find established by the evidence. It then must prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks you to find, then the Crown's circumstantial case has failed."
The applicant argued that his Honour's directions in these terms did not point to the collection of facts that may have amounted to an alternative hypothesis consistent with his innocence. Moreover, the applicant argued that the italicised portion of the summing up extracted above inferred that the onus shifted to him in that the conclusion referred to had to be established by him.
With respect to the first proposition, it is correct to say that his Honour did not specifically outline the matters for which the applicant wished to contend at the same time as he gave the circumstantial case direction. It is in that sense also true to say that his Honour did not describe or outline to the jury what the applicant had submitted was the particular set of facts said to be consistent with his innocence. He did, however, later outline the arguments of defence counsel with respect to the asserted deficiencies in each of the several pieces of circumstantial evidence and DNA evidence upon which the Crown relied, including the following: "Much of the cases, in relation to what Mr Jauncey and Mr Webb have put to you in relation to this matter, depend on what you make of the observations as given by Mr Harb and Mr Indari in respect of the actual carjacking itself. As I have pointed out to you no one actually says that either of the accused was one of the three persons. There was at least an identification process in relation to Mr Obierzynski and you have heard that that was by way of a photo array, so the witness was shown a number of photographs and asked whether he could identify any person in the photo array as being one of the persons … neither Mr Harb nor Mr Indari ever actually identified any particular person as being involved in it. The best they could do was to give you their recollection of what actually happened and what they observed at that time. So, much of the addresses of the Crown and Mr Webb and Mr Jauncey have relied on taking you to the fine detail as to what was either said or not said in the Triple-0 call, said or not said in the initial statement to the police one hour after by Mr Harb, or said or not said in Mr Indari's statement the following day, or was or was not said during the course of their evidence in the trial some 18 months after the event. Their observations are important in relation to your assessment of whether the Crown can prove its case beyond reasonable doubt. … It is the case that, in respect of both Mr Webb and Mr Jauncey, that they have concentrated on suggesting to you that, or submitting to you, that you could not, on the evidence presented by the Crown, find beyond reasonable doubt that either of their clients was one of those three persons involved in the carjacking."
The applicant does not complain that his Honour failed properly or adequately to outline or summarise the applicant's response to the prosecution's circumstantial case. Having regard to the detail into which his Honour descended in this respect, that is not surprising. In our opinion, his Honour adequately summarised the applicant's response to that case.
Having regard to that unexceptionable summary, however, it becomes clear that the applicant did not contend for or propound some specified or particular alternative factual hypothesis which, if accepted as a reasonably available alternative to the Crown case, would have exculpated him. The burden of the applicant's case was not that there was any reasonably available alternative interpretation of the Crown's set of facts that would cause the jury to have a doubt. The applicant's position was simply that the Crown's circumstantial case did not establish his guilt beyond reasonable doubt. Specifically, the applicant maintained that he was not involved in the events giving rise to the charges and that any proper assessment of the Crown case could not support a finding of guilt to the criminal standard. Apart from the DNA on the steering wheel, the applicant did not, for example, suggest some particular alternative explanation for the evidence that the Crown contended were circumstances which, taken together, established the applicant's guilt.
As already noted, the evidence established that the applicant's DNA was found on the steering wheel of Mr Harb's car. His Honour referred to that evidence in these terms: "Now Mr Jauncey also referred you to the DNA located on the steering wheel and the fact that the car was not discovered until some nine days later, so it could not point to his client, according to Mr Jauncey, as being the one who got into the car and drove it away. Well of course, as I have said to you already in relation to the expert's evidence, her evidence cannot tell when DNA got somewhere. It can only tell you that it is there when it is examined. It might have been there for days. It might have been there for months. It might have been there for years… Of course the Crown relies in particular on the DNA on the steering wheel as showing or demonstrating a relationship between the stolen motor vehicle and [the applicant]. In the circumstances, where there is nothing in the trial which would explain how his DNA got there than if you accepted that he has had some connection, either direct or perhaps secondary, through someone else, to that steering wheel at some time."
Clearly, in that passage from his Honour's summing up, he dealt with an available but innocent explanation for how the applicant's DNA became deposited upon the steering wheel. Secondary transfer of the applicant's DNA was capable of supporting an alternative hypothesis consistent with innocence.
His Honour specifically identified all of the deficiencies in the Crown's circumstantial case to which the applicant drew attention. No complaint is made asserting the contrary, and no direction was sought from trial counsel to remedy or rectify any such deficiency. The applicant's alternative hypothesis was that he was not responsible for the theft of Mr Harb's car and that the Crown could not prove otherwise. The applicant's final submissions to the jury supported this: "So when you closely examine the evidence what you are left with is a series of frayed threads and frayed threads may give rise to a suspicion, but no matter how you tie them together, they do not amount to a conclusion beyond reasonable doubt that my client was the man standing next to the car door telling Mr Harb to get out of the car holding a knife."
His Honour quite properly picked up this submission in his summing up as follows: "So Mr Jauncey's ultimate submission to you was that the Crown had referred to this as a circumstantial case based on a number of critical threads, and that you would find that those threads were highly frayed and, therefore, there was no cable, as the Crown suggested."
We are unable to accept the submission that his Honour failed either properly to put the applicant's response to the Crown case in general or to adumbrate what was in truth an available and reasonable alternative hypothesis consistent with his innocence in particular. In this respect, we note that the applicant specifically complains that his Honour failed to refer to any of the features of the applicant's case that pointed to the fact that he was not the offender. Tellingly, the applicant does not identify what these features are or may be. That seems to me to be because there are no features that suggest that the applicant was not the offender, so much, on the applicant's case, as an absence of features, taken together, that are capable of establishing the Crown's circumstantial case that he was the offender. That was the way the applicant defended the proceedings and that is the way that his Honour explained it to the jury.
So far as concerns the second proposition, we do not read his Honour's direction as reversing the onus of proof. The direction complained of is taken directly from the standard direction on circumstantial evidence in the Criminal Trials Bench Book. That does not, of course, give it any particular status and certainly does not immunise it from attack if it can otherwise be shown to be deficient. However, in our opinion, any proper reading of the impugned words does not lead to an impression that the applicant bears the onus, or any onus, of proving the alternative exculpatory hypothesis. The "other reasonable conclusion" is clearly enough one to be drawn, if it is available, from the whole of the evidence in the case. In the present case, that evidence was limited to the evidence led by the Crown. As the direction makes plain, the emphasis is upon "any other reasonable conclusion arising from those facts". The wisdom that informs this area of discourse is that the jury cannot reach a conclusion beyond reasonable doubt based on certain facts if an available alternative interpretation of the same facts raises such a doubt. There is nothing in his Honour's direction that in any way infers or suggests, let alone directs the jury, that the alternative conclusion must be established or proved by the applicant.

Additional submissions

Although not the subject of separate grounds of appeal, the applicant appears to raise three additional complaints about the conduct of the trial. Having regard to the fact that the applicant's counsel somewhat unusually sought to argue grounds 1 and 2 together, the following matters raised by the applicant do not fit comfortably within either of those grounds considered separately. In any event, the applicant did not seek leave to add further grounds of appeal and the Crown did not oppose the applicant raising these areas of complaint in this way.
Concerning the first of these matters, as already noted, the significant issue in the proceedings was whether the Crown could identify the applicant as the offender holding the knife and confronting Mr Harb at his car. The applicant contends that, by reason of the way his Honour dealt with the distinction between direct and circumstantial evidence, in a case in which identification was critical, his Honour inappropriately and erroneously "minimised the lack of identification" of the applicant as the important issue in the applicant's response to the Crown case.
Once again, this complaint arose from his Honour's use of the standard direction in the Criminal Trials Bench Book as follows: "In a circumstantial case, the Crown lacks direct evidence of that kind. That does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken; but in a circumstantial case no individual fact can prove the guilt of the accused."
The applicant's concern appears to be that his Honour's immediate juxtaposition of his cautious reference to the value of direct evidence of identification, in a case in which "identification" by circumstantial evidence is the significant issue, somehow inversely but inappropriately elevated the Crown's circumstantial case by comparison to a level of acceptability that it otherwise did not have and should not have been given. In the applicant's terms: "In the example that his Honour supplied regarding the differences between direct and indirect evidence [he] effectively invited the jury to minimise the case mounted by the applicant."
A number of things should be said about this. To start with, the applicant did not mount any positive case. He properly, but only, contended that the Crown had failed to prove that he was involved in the events that gave rise to the charge. He did not, for example, call evidence from a witness whose evidence may have been potentially degraded by his Honour's cautious reference to the reliability of identification evidence.
Next, the Crown's own case included evidence from witnesses who saw and observed the offence being committed. These were Mr Harb and Mr Indari. The very fact that these witnesses were not ultimately able to identify the applicant as the relevant offender is just as likely to have conveyed to the jury that the Crown's reliance upon a circumstantial case was not its first preference. This was favourable to the applicant rather than the reverse.
Finally, as the direction says in terms, a circumstantial case is not necessarily weaker than a case based upon direct evidence. That proposition is uncontroversial. It should not, however, be misunderstood or misinterpreted to say, or by inference to suggest, that where identification is the issue, a circumstantial case is necessarily or possibly stronger than a direct evidence case. The example contained in the standard direction coincidentally deals with identification but not in our view in a way that is likely to have caused any confusion.
The applicant next complains that certain parts of the applicant's ERISP were highly prejudicial and should have been excluded. No submissions are made in support of that contention. The offending parts are not identified. No application was made at the trial concerning the ERISP. This complaint requires no further consideration in this Court.
The applicant's last complaint concerns the effect of his Honour's direction and what the applicant describes as "identification opinion of the applicant [given] by police". The portion of his Honour's summing up about which the applicant complains is as follows: "Now Mr Jauncey has said to you that there is in effect no evidence that photograph number 1 in Exhibit 5, which shows the person with the 'RAW G-Star' top on, is in fact Mr Obierzynski. You may not recall, but you will find in his ERISP, or that is the interview with the police, that in fact there is a reference on p 5, at question 49, when they have just been referring him to the fact that they have some CCTV footage on Burlington Road, and ask him: 'Q. Would you like to see the pictures of you? A. Yeah, I would want to see them.' The fact that the police officer said, 'Would you like to see some pictures of you?' is an opinion of the police officer's but it is a matter for you, not for the police officer, as to whether this is a photograph of Mr Obierzynski. So you should disregard the fact that the police officer purported to identify him from the photo. But he was asked if he wanted to see them. He said, 'Yes, I want to see them.' And at question 49: 'Q. Well, Zac, it is fair to say that, you know, you have mentioned that you, in the car repair - the car repair shop, where - where you were trying - trying to buy a hacksaw.' And instead of a clear answer, 'yeah' or 'no' or something of that nature, you get 'um' or 'em'. So what is relevant about that is that it appears that the officer is suggesting that in some previous conversation, of which there is no evidence, that Mr Obierzynski has said something. You might take 'car repair shop' to be a fair description of AutoPro, but he has conceded that he was there at some stage on some indeterminate day, trying to buy a hacksaw. So there is that reference, and of course in the interview, they try to get him to acknowledge that it is him in the photograph, and you will see at question 55: 'Q. This is - do you agree this is a picture of you in the car repair shop? A. I'm not saying nothing.' Later, question 59: 'Q. Mate, as you can see in the picture, we can see that the person which we believe is you - A. Mm. Q. - because you're wearing a Nike Dri-FIT tick hat. A. Yeah, look, the ones that you took from my property, that's when I got done the other night, yeah.' It is a matter for you whether that assists you, as to whether in fact Mr Obierzynski is the person in that photograph, but in any event the Crown relies on you comparing photograph 5 - or sorry, I should not say photograph 5 because photograph 5 is really just to remind you of what is on the CCTV footage. You should look at the CCTV footage and see what you see of that person, and you are entitled to then compare that person to how he looks in the shop, or he looks on the street or in the car park, to how he looked when he was interviewed in the ERISP, because you will have that DVD too. So you can make your own comparison as to whether the person in photograph 1 of Exhibit 5 is Mr Obierzynski, and there is one other matter you can take into account as to whether it is him or not. He has been sitting in front of you for days. It is now, of course, 18 months later, but you still have some impression as to what he looks like and you can compare that to what you see in the photographs, what you see in the CCTV footage, and reach your own conclusion. It is entirely a matter for you."
The applicant submitted that these comments, although framed as a warning about the dangers associated with police opinions, should not have been "admitted" in the trial. We take that complaint to be a reference to the extracts from the ERISP, rather than a complaint about anything said by his Honour concerning them. The applicant submitted that not only were the quoted sections of the ERISP inadmissible, but they also unfairly implied that the applicant had admitted his presence at the AutoPro shop with two others close to the scene of the offence. It invited the jury to consider whether, given that "admission", they could more readily accept the Crown's circumstantial case.
The applicant submitted that his responses to police questions were not in truth admissions and that the recitation of them by his Honour was highly prejudicial to the applicant and diverted the jury's attention from his defence submission that he was not part of the taking of Mr Harb's vehicle.
The applicant accepted that this portion of the evidence and the summing up was not raised by trial counsel and that Rule 4 applies. However, the applicant also contends that the errors described have led to a miscarriage of justice and that the applicant may accordingly have lost the chance of an acquittal that was fairly open to him: South v R [2007] NSWCCA 117 at [34]; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20] - [21].
The Crown responded by noting that the ERISP had been the subject of certain deletions by agreement between the parties, and that there had been no application to exclude anything in addition. The Crown contended that the applicant could not in those circumstances complain that other questions and answers in addition should have been excluded.
The applicant has contended that the impugned questions and answers cited above as part of his Honour's summing up should have been excluded upon the basis that the evidence was inadmissible as evidence of the police purporting to identify the person depicted in the CCTV footage, who the police asserted was the applicant when they questioned him, relying upon the decision of the High Court in Mundarra Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50. The Crown contended that in fact the police in the present case were doing no more than showing the material to the applicant in order to get his response following his arrest as to whether it was him or not.
One portion of his Honour's summing up on this topic at least is unfortunately ambiguous. That is as follows: "You should look at the CCTV footage and see what you see of that person, and you are entitled to then compare that person to how he looks in the shop, or he looks on the street or in the car park, to how he looked when he was interviewed in the ERISP, because you will have that DVD too."
The words "to how he looked when he was interviewed" are, in the context of that sentence, capable of also being misunderstood as references to the relevant individual shown in the CCTV footage. Similarly, the question asked by the police of the applicant whether he would like to see the pictures "of you" on one view suggest that the police are stating as a fact that the applicant is the person shown in the CCTV footage that the applicant agrees he "would want to see".
However, as the Crown quite fairly emphasises, these matters are referred to by his Honour in the same context as his Honour's unambiguous direction to the jury that they should look at the CCTV footage for themselves in order to see what they see "of that person", meaning the unidentified person depicted in the footage. The later reference to the applicant shown in the ERISP is clearly enough a separate and discrete reference to him. The fact that no application was made for a redirection concerning this portion of the summing up tends to support the fact that the words said by his Honour at the time did not appear to convey the difficulty of meaning that the applicant now seeks to identify as a matter of significance.
In our opinion the ERISP material does not unfairly create an impression either that the police have "identified" the applicant or that the applicant has in answering police questions conceded that the CCTV material depicts him. His subjunctive reference to the material saying, "Yeah, I would want to see them" is not in our view a response of acceptance or agreement but rather a response conveying what might be described as sceptical resignation. Taken as a whole and in context, his Honour's direction and the ERISP material quoted by him have not together resulted in a miscarriage of justice.

Ground 2

As already indicated, the applicant did not separately make submissions concerning the alleged unreasonableness of the verdict or the related contention that it cannot be supported having regard to the evidence.
The approach that is required for determining whether or not a verdict is or may be unreasonable is well settled.
When considering whether a verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is "whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": Baden-Clay at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370.
In performing this "independent assessment" of the evidence, this Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen at [7]. As the High Court said in Baden-Clay: "[65] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury."
See similarly Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; MFA at 624 and Atai v R [2014] NSWCCA 210 at [134].
The Crown submitted that it was well open to the jury to conclude beyond reasonable doubt that the applicant was one of the three males involved in the offence based on a combination of the following pieces of circumstantial evidence: 1. Mr Indari's representation in the triple-0 call that there were three males, all aged around 25 years, all wearing black hoodies and black or dark jeans. 2. Mr Harb's identification of the man with the knife having a "G-Star" brand even though he thought it was the brand of his jeans not his hoodie. 3. The evidence of both Mr Indari and Mr Harb that the man who approached Mr Harb and produced a knife was wearing a baseball hat. 4. The two sets of CCTV footage (exhibits 1 and 2) depicting three males in the clothes and apparel earlier described. 5. The applicant, his co-offender and a third male being together at the time of their arrest the following evening. 6. At the time of arrest, the applicant was wearing a black Nike "tick" baseball cap, the same as that seen in the CCTV footage. 7. A knife was found at the scene of the arrest which had a fingerprint matching the applicant's right thumb on the blade and the DNA result. 8. Whilst Mr Indari said in evidence that he did not see a knife, the Crown case was that the photo of the knife recovered during arrest had a silver metal holding at the bottom of the hilt which could well have been what Mr Indari saw. 9. The stolen key to the Mercedes Benz was found at the scene of the arrest. 10. A swab taken from the steering wheel of the Mercedes Benz when it was recovered 9 days after the offence had the applicant's DNA. 11. A marking evident on the top of the dorsum of the right hand of the male with the "RAW" "G-Star" hoodie in the footage was consistent with the applicant's distinctive tattoo of a large crown visible in the applicant's ERISP. 12. Mr Harb's description of the male who opened his door holding the knife is not necessarily inconsistent with the applicant's appearance in the ERISP.
The Crown contended in these circumstances that the evidence taken as a whole amounted to a very strong prosecution case and that the verdict could not be said to be unreasonable.
The burden of the applicant's complaint that the verdict is unreasonable fails in our view to come to terms with the strength of the several circumstances relied upon by the Crown taken together, but instead places undue emphasis upon the arguably limited probative value of each of the circumstances taken alone. It is well understood that in a circumstantial case, no individual fact is capable of establishing the guilt of the accused beyond reasonable doubt. It is only when all of the circumstances are considered together that it is possible for the Crown to construct a case of sufficient strength to prove the guilt of the accused to that standard.
In the present circumstances, that case is quite powerful. The similarity between the clothing worn by the three men shown in the CCTV footage and the clothing that the applicant and his companions are later found to be wearing is itself a compelling circumstance. The applicant's thumb print on a knife found near the scene of the incident and his DNA on the steering wheel of the car are two additionally strong pieces of evidence. The location of the key to the stolen car contained in a plastic bag is also a matter of significance when the applicant was later apprehended near the fence in Pollard Street the following day.
His Honour's summary of the Crown case, to which no objection was taken, appears fairly to outline the circumstantial case that the jury was asked to accept. That summary was relevantly in these terms: "The Crown asks you in this matter to conclude from the CCTV footage at Auto Parts [sic, AutoPro] approximately one hour before the carjacking, and the three persons who are seen in that CCTV footage, that they are Mr Gusa, Mr Nowak and Mr Obierzynski. The Crown relies on the clothing that is being worn at that time, and then also on the CCTV footage approximately 45 minutes before the carjacking, so, one assumes, something like a 15-minute walk from Auto Parts [sic, AutoPro] to the region of the Indian restaurant with a detour going down the driveway to the underground carpark and coming back out again. You may wonder yourselves why those three persons went into the underground carpark. Were they seeking to find some backdoor entrance to the Indian restaurant which they could have entered from the street if they wished to, and in any event walked past eventually? What was there in the underground carpark? From what you can see from the CCTV footage, there are only cars. There is no explanation before you as to why any of those persons went into the carpark and then, having reached the bottom of the driveway and briefly looked around, immediately left. The continuing footage from the Indian restaurant shows them then walking down the street towards the intersection of Burlington with Rochester, and the Crown asks that you infer from that that they continued on across the intersection and further down Burlington Street until eventually returning at some later time, approximately 45 minutes after they were filmed in the vicinity of the Indian restaurant, coming back in the opposite direction to which Mr Indari and Mr Harb had walked, to then carjack Mr Harb's motor vehicle. The Crown also relies on the descriptions that were given by Mr Indari and Mr Harb and the circumstances as to what happened in respect of the carjacking. There is no dispute in this matter that there was a carjacking. There is no dispute in this matter that it was, in terms of an event, a very brief event, and no doubt in stressful circumstances for both Mr Indari and Mr Harb. The Crown relies on what is said by them at various times, whether it be the triple-0 call or the statement made by Mr Harb approximately one hour after the event, or what Mr Indari said in his statement the following day. I am not sure we actually have the time for that, but let us say 24 hours later. Of course the Crown also relies on the evidence that has been given by each of those persons in the trial, the descriptions of clothing and who was wearing what, and who did what, and who may or may not have had a knife and its description are of course all relevant matters for you to consider. The Crown also asks that you take into account the circumstances of the following day in Pollard Street when three men who have been identified to you as Mr Obierzynski, Mr Nowak and Mr Gusa were stopped by police when they were - I am not too sure which - jumping over or jumping back over a fence, and in the near vicinity to where they were located was the Mercedes key which fitted the stolen motor vehicle in a zip lock sandwich bag, and in the gutter, also in the near vicinity, the folding knife which had the fingerprint and the DNA of Mr Obierzynski on it, and you will understand from Mr Jauncey's closing address there was no dispute that it was his knife, his fingerprint, his DNA. The Crown also relies on the fact that when the motor vehicle was finally recovered on 19 September, a forensic test of the steering wheel demonstrated the presence of Mr Obierzynski's DNA. There is no dispute that his DNA was on the steering wheel. There is of course no evidence as to when it might have been placed there, because as you heard from the expert, she can tell whether there is DNA there or not, but she cannot tell you when it was put there. She cannot tell you also whether it was a primary transfer or a secondary transfer. What that is, is - did he hold the steering wheel himself and leave the DNA, or did some garment of his come in touch with the steering wheel and you have got secondary transfer, or perhaps did he shake hands with someone who later got in the car and put his hand on the steering wheel and the DNA was transferred? So those are all matters for you to take into account; these are the particular circumstances that the Crown relies on. The Crown obviously suggests to you that you would draw the conclusion, the Mercedes Benz key having been found, on 11 September in the near vicinity to where they were jumping the fence, and it being forensically proved to be the key to the stolen Mercedes, that the key was associated with those three persons, and that because Mr Obierzynski's DNA was on the steering wheel of the car, that he was one of those three persons involved in the carjacking. So in order to satisfy you beyond reasonable doubt of the accused's guilt of the offence, the Crown must first persuade you that the inference or conclusion it relies upon is a reasonable one to draw from the facts that you find established by the evidence. It then must prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks you to find, then the Crown's circumstantial case has failed."
Having considered the whole of the evidence tendered against the applicant, we are of the view that the prosecution presented a very strong circumstantial case. The evidence established the applicant's guilt beyond reasonable doubt. The verdict of the jury was not unreasonable or unable to be supported having regard to the evidence. Ground 2 must be rejected and the appeal against conviction should be dismissed.

Ground 3

The applicant's third ground of appeal was directed to the sentence. It asserts (with slight grammatical modifications) that "his Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentence is manifestly excessive".
The applicant was sentenced to 7 years with a non-parole period of 5 years. That sentence was ordered to commence on the 19 September 2016. His Honour settled upon the commencement date because that was the date upon which a previous sentence of imprisonment expired.
His Honour was under the misunderstanding that the applicant had been in custody from that date until the time of his trial in March 2017. However, the applicant was in fact released on 19 September 2016 and was not in custody from that date until 19 March 2017 when his bail was revoked in respect of the present offence. In practical terms, this means that the effect of the sentence and non-parole period was 6 months less than that intended by the sentencing Judge. The effect of the sentence was for the applicant to serve some 4 years and 6 months in custody with a balance of parole of 2 years. That is to say the total effective sentence, taking into account his Honour's misunderstanding as to the pre-trial custodial situation, was one of 6 years and 6 months with a non-parole period of 4 years and 6 months. The ground of appeal asserting manifest excess should be considered in the light of that practical consideration.
Even taking that matter into account the sentence imposed upon the applicant was a severe one. Although his criminal record was very bad, and the facts of the present offence extremely serious, he was a person who had a substantial subjective case including the fact that he had suffered a serious brain injury when he was much younger.
The present offence featured a number of aggravating features. Perhaps the most significant of these was the fact that the offence was committed while the applicant was on parole for a number of similar offences. The applicant was sentenced on 16 May 2008 in the Sydney District Court in relation to six separate offences of robbery. Each of those counts of robbery were aggravated either by being in company or by virtue of the fact that the applicant was armed with a dangerous or prohibited weapon. The applicant was sentenced to various sentences of imprisonment. Those six sentences were themselves ordered to be served partially concurrently with an earlier, unrelated, offence of aggravated break and enter.
While the applicant was not to be sentenced twice for the earlier offences, the fact that the applicant was on parole for multiple offences of a similar kind was a significant aggravating feature. We have recounted the facts of the present offence in dealing with the conviction appeal. It was a very serious crime. The offence was categorised by the sentencing Judge as falling within the mid-range of objective seriousness for offences of its kind. There is no submission that this assessment was wrong. In those circumstances the standard non-parole period of 5 years provided a significant guidepost to the sentencing process in the way explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. It was by no means a "straitjacket" fettering the proper exercise of the sentencing discretion but it was a matter to be taken into account along with the maximum penalty of 14 years and all other matters relevant to a determination of the appropriate sentence arising under the sentencing statute and the common law.
There is no submission that the sentencing Judge failed to take into account any relevant matter, or that he mistook the facts in any way, or that he allowed extraneous considerations to guide him. There is no assertion that there was any patent error of law or fact in the approach taken by the sentencing Judge. Rather, the applicant seeks to establish that the sentence itself is manifestly outside of a permissible sentencing range so that it can be described as "wrong", "plainly unjust" or "manifestly excessive". In considering the submissions under this ground, it is important to pay due deference to the wide ranging discretion that the criminal law entrusts to sentencing judges. It is not to the point that judges of this Court may have settled upon a lesser sentence had they been exercising the sentencing discretion at first instance. There is no single correct sentence. As to these propositions, none of which is controversial, see generally Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15], Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
A number of reports were tendered and relied upon in the sentencing proceedings. These emphasised the fact that the applicant suffered a serious motor vehicle collision when he was about 17 years of age and, as a result, was prone to impulsive behaviour, disinhibition and had a more limited cognitive capacity for problem solving and deductive reasoning.
That was a significant matter to be taken into account in the sentencing process. However, it is clear that the sentencing Judge considered the applicant's condition closely in exercising the sentencing discretion. A substantial amount of the sentencing judgment was taken up with recounting that part of the subjective case and explaining its impact on what was, unquestionably, a tricky sentencing exercise. None of the findings of fact has been challenged on the hearing of the sentencing appeal. Nor has any suggestion been made that his Honour acted on a wrong principle in considering the impact of the applicant's brain injury on the proper exercise of the sentencing discretion.
While the sentence was a heavy one taking into account the applicant's relatively young age and cognitive difficulties, we are unable to conclude that it is plainly wrong or unjust. The singular ground of appeal on sentence cannot be sustained.
Because of the length of the sentence we would grant leave to appeal. However, the appeal must be dismissed.

Conclusion

In the circumstances we propose the following orders: 1. To the extent necessary, grant leave to appeal. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2019

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