Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : PEZZINO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 7

Application for review - Criminal law - Trial Judge's direction - Circumstantial identification evidence

Practice and procedure - Application for review of single Judge's decision - Whether review an appeal proper or rehearing - Interpretation of r 8 Supreme Court (Court of Appeal)Rules 2005 (WA) - Court of Appeal to make own assessment

Criminal Procedure Act 2004 (WA), s 112

Supreme Court (Court of Appeal) Rules 2005 (WA), r 8

Supreme Court Act 1935 (WA), s 61(1)

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VicLawRp 89; [1909] VLR 497

Jarvis v The Queen (1993) 20 WAR 201

Miles v The Queen (1997) 17 WAR 518

Pezzino v The State of Western Australia [2006] WASCA 7

R v DH [2000] NSWCCA 360

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

Zorad v The Queen (1990) 19 NSWLR 91

Brown (1982) 5 A Crim R 404

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Griffiths v The Queen [1994] HCA 55; (1994) 125 ALR 545

Jones (1995) 78 A Crim R 504

Kay v The Queen [2004] WASCA 222; (2004) 147 A Crim R 401

King v The Queen [2001] WASCA 198

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121

Neville v The Queen [2004] WASCA 62; (2004) 145 A Crim R 108

Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Matthews & Ford [1972] VicRp 1; [1972] VR 3

R v White [2002] WASCA 112

Readhead v The State of Western Australia [2005] WASCA 191

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Ruane (1979) 1 A Crim R 284

Thompson v The Queen [1968] HCA 21; (1968) 117 CLR 313

Thompson v The Queen (1992) 8 WAR 387

1 WHEELER JA: This is an appeal against sentence and an application for review of a refusal of leave to appeal against conviction. The appellant was convicted after trial by a jury of one count of burglary, one count of stealing a motor vehicle, four counts of armed robbery and one count of attempted armed robbery.

2 Briefly, the prosecution case was that on 29 May 2003 the appellant entered a Nedlands property where he broke into a locked shed and stole various items, including a BMW motorcycle. The motorcycle was said to have been used in the commission of four armed robberies and the attempted armed robbery. It was later abandoned and when found and returned to its owner, it was damaged. The four armed robberies and the attempted armed robbery took place on 30 May 2003, the day after the theft of the motorcycle.

3 The prosecution case was that the appellant went first to the Guildford post office wearing a motorcycle helmet with a visor and carrying a large knife. He demanded money and was given a little over $1300. He departed on the BMW motorcycle, the registration number of which as taken by a staff member matched that of the stolen motorcycle. A short while later he is said to have robbed a pharmacy in Bassendean again wearing the motorcycle helmet and carrying a large knife.

4 He then travelled to Morley where he attempted to rob another pharmacy but was foiled when the owner of the pharmacy threatened him with a machete. A Ms Olivier was working in that pharmacy and her evidence is particularly mentioned by the appellant and I turn to that shortly.

5 About half an hour later he is said to have driven the motorcycle to a newsagency where, still wearing the helmet, he is said to have wielded a weapon that was either a metal pole or a large knife and obtained money. He left that newsagency on the motorcycle, the registration of which was again noted. A short while later he is said to have robbed a pharmacy, again wearing the helmet and carrying the knife. He obtained a sum of money.

6 Some 10 days later the police searched a house where the appellant had been staying from time to time with his girlfriend. In the room occupied by the appellant the police found several thousand dollars worth of property which was able to be identified by the owner of the Nedlands property from which the motorcycle had been stolen. The appellant claimed that this property had been given to him by an acquaintance in payment of a debt.

7 At trial the prosecution produced telephone records which showed that the appellant's mobile telephone had been in use on 30 May 2003 and that calls had been made from it from places and at times which were consistent with the route taken in the course of the commission of the offences. The appellant claimed he had not made the calls, that he had been with his mother at the material time and that he had loaned his telephone for half a day to the person who had given him the electrical equipment.

8 Evidence was led from the appellant's mother who said that the appellant had been with her at the time of the offending. However, there was some doubt about the date described by his mother, since she described the appellant as having worn distinctive shoes which had been given to him by his girlfriend on his birthday which was the day after the offences.

9 The armed robbery the subject of count 8 was captured on video surveillance. The offender was shown on that video as wearing shoes that had a similar pattern to shoes later seized by the police from the appellant.

10 Turning first to the application for review in relation to the appeal against conviction, there were originally seven grounds of appeal. His Honour found that none of them had any reasonable prospect of succeeding. His Honour is asserted to have erred in relation to grounds 1, 4 and 5. No argument is put before us by the appellant in addition to that which was put before Steytler P, who refused the application for leave. The appellant is content for the purposes of this review to assert that this Court should allow his application if it is convinced that Steytler P committed an error in his reasoning. It may well be that, this being a review rather than an appeal, it rather falls to us to evaluate for ourselves afresh the grounds pressed by the appellant, rather than the appellant having that higher burden which he was prepared to take on himself. For the purposes of this review, nothing turns on that distinction.

11 So far as grounds 4 and 5 are concerned, it is my view that Steytler P was correct for the reasons given by him. They are to be found in **Pezzino v The State of Western Australia [**2006] WASCA 7 at [23] to [27] inclusive. There is no need to add anything further in relation to those grounds. It is also my view that his Honour was correct in what he said at [11] to [15] inclusive in relation to ground 1. However, I would wish to make certain additional observations in relation to that ground.

12 The ground, which is somewhat lengthy and argumentative, is concerned with the direction which his Honour gave in relation to identification. It begins by asserting that the "key issue" at trial was identification. It was not the key issue. There was, as I have noted, significant circumstantial evidence linking the appellant to the robberies and attempted robbery. That was the evidence which formed the core of the State case.

13 So far as what the appellant submits is to be regarded as identification went, in broad terms the descriptions of the offender in each case were of a person wearing a full-face motorcycle helmet with a visor and dark clothing consistent with clothing worn by motorcyclists. An eyewitness in relation to count 8 described the offender as having olive or tanned skin with acne scarring across the top of his cheeks, a description which was consistent with that of the appellant. One of the witnesses in relation to one count, however, described a jacket which was quite different from the clothing described by others and sandy-coloured and shoulder-length hair, which again was at odds with other descriptions. His Honour specifically drew the jurors' attention to that variation.

14 So far as Ms Olivier was concerned, she had said that she had seen the offender walk past her father's shop two or three times before he entered in order to attempt to commit the robbery. When he had done so, he had looked inside the shop and she had made eye contact with him. She later took part in a photo board identification process which was videotaped and which the jury viewed. She was looking for the offender's eyes as that was all she had seen. During the videotaped procedure she said, "I think it's number 2," that being a photograph of the appellant. In cross-examination she explained that she thought that the eyes and eyebrows in the photograph matched those of the offender.

15 Significant portions of what his Honour said to the jury about the question of the offender's appearance are set out in [13] of the President's reasons which I do not reproduce but it is important to consider the structure of the direction. The thrust of his Honour's direction to the jury was: that there were general similarities in many of the descriptions; that there was one witness whose description significantly differed from others; that what the jury made of those descriptions was a matter for them; but, importantly, that no witness had identified the accused as the offender and that the jury should proceed on the basis that, "Whatever view you take of the consistency of the various descriptions and what that might tell you, no witness has positively said that the accused was that person."

16 In his Honour's opening remarks about the evaluation of the evidence of witnesses generally, of which there were but a small number, his Honour made the conventional observation that people may honestly believe something but yet be mistaken so that their evidence may be unreliable (t/s 417). Then, turning to the particular issues in the trial, his Honour first of all discussed the difference between direct and circumstantial evidence and then (t/s 419) said:

"The prosecution does not have any witness who says, 'I saw Mr Pezzino hold up,' for example, 'the Guildford post office.' None of the witnesses - and I will deal with this shortly - go so far as to identify Mr Pezzino as the man who committed offences upon their person and property. Instead the prosecution says, well, there are a number of circumstances which, taken together, point irresistibly to the conclusion that it was the accused even though nobody comes forward and says, 'I saw him'." (Emphasis supplied)

17 Having said that, his Honour then gave conventional directions in relation to circumstantial evidence illustrating what it was and how one could reason from it. At page 421 his Honour said:

"I said earlier that the prosecution does not rely on identification. I will come shortly to what the prosecution does rely on and talk about that. I want to emphasise this."

18 His Honour then spoke briefly and generally about the evidence which the appellant says is identification evidence and having, as I note, introduced this discussion with the words, "I want to emphasise this," his Honour again said:

"But no witness has positively identified the accused person."

19 His Honour went on to give the direction quoted by the President to the effect that the prosecution did not put forward any evidence that any witness positively identified the appellant. Shortly thereafter, his Honour turned to what the prosecution case was and said:

"The prosecution rely, it seems to me, principally on the circumstance of the finding of the property of [the owner of the motorcycle] ... "

and then went on to discuss that evidence in some detail.

20 It seems to me, then, that his Honour was very clearly and plainly saying to the jury that the prosecution case was that there was circumstantial evidence upon which the State relied, and that the prosecution case was not that there was any witness who had said that the appellant was the person who was the offender, so that the jury could not reason on the basis that there was identification.

21 It was clear from what his Honour said that, at most, in the context of this case, there was some evidence which the jury might have regarded as not inconsistent with that circumstantial evidence relied on by the State. I am fortified in that view of the case by the observations of counsel for the appellant at trial who, when there was a discussion as to whether the jury should be redirected, it being submitted on behalf of the State that there had been some inaccuracy in what his Honour said to the jury about Ms Olivier's evidence, said to his Honour:

"As you said, it's not identification evidence. It goes no further than consistency ... "

(referring to the evidence of Ms Olivier specifically).

22 Turning now to the particulars of what it is submitted was wrong with his Honour's direction, the appellant first asserts that it was incumbent upon his Honour, as someone with no interest in the outcome of the case, "to state and clarify the nature of the identification evidence for the jury". His Honour plainly did so. He said that there was no identification.

23 The other two particulars effectively repeat each other but are phrased in different ways. One asserts that his Honour failed to remind the jury of the divergence in the descriptions given by various witnesses. I would observe, of course, that his Honour also did not take them through the similarities. The other is that the identification evidence was not sufficiently commented upon by his Honour. The appellant asserts, relying upon Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VicLawRp 89; [1909] VLR 497 and more recently Zorad v The Queen (1990) 19 NSWLR 91, that a judicial summing up must "include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence".

24 The first observation that I would make about these submissions is that, as the learned President pointed out, his Honour did explain to the jury the significance of the identification evidence in the sense that he told them that it was not identification properly so-called and not evidence upon which the State urged them to rely. In that context, a detailed summary of the evidence might well have been seen as contradicting to an extent the message which his Honour was trying to convey. That was a matter for his Honour's judgment and it seems to me in the circumstances of this case, it was a sensible course to take.

25 If this were a true identification case in which a key issue or even a significant issue was whether the accused had been identified as the offender, I would accept that the special nature of identification evidence does require a very detailed discussion of the evidence, of the kind set out in authorities such as Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (at 565). As I have said, however, it was not left to the jury on that basis, but emphatically the opposite.

26 However, as to the broad proposition that in every case a Judge must include a collected resume of the evidence and a brief outline of the arguments in relation to that evidence, it must be said that this proposition does not seem to be consistent with s 112 of the Criminal Procedure Act 2004 (WA) ("the Act"). That section requires a Judge to instruct the jury on the law applicable to the case, but as to the facts provides that the Judge may make such observations about the evidence that the Judge thinks necessary in the interests of justice (replacing the former s 638 of the Criminal Code (WA) which was in broadly similar terms). I would, of course, accept that a Judge has a duty to ensure a fair trial and must refer to and explore so much of the evidence as is necessary in order to achieve that end. Section 112 is plainly not intended to detract from that duty.

27 It seems to me that the effect of s 112 of the Act is rather similar to that of s 161 of the Criminal Procedure Act 1986 (NSW) which provides that at the end of a criminal trial a Judge "need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary". That section permits a Judge not to summarise, rather than permitting the Judge to do so, as s 112 does, but each provision must be understood as giving a Judge a discretion which is to be exercised in the interests of ensuring a fair trial. A very useful survey of authority in New South Wales and in the High Court concerning the role of a Judge in relation to factual issues in a criminal trial generally was undertaken in the New South Wales Court of Criminal Appeal in R v DH [ 2000] NSWCCA 360. The relevant authorities are considered in some detail from [68] through to [79] inclusive of that decision. Their effect is then summarised at [82] through to [86] in the following terms:

"[82] Taking account of the circumstances of a trial, a judge may be entitled to form the opinion that a summary of the evidence is unnecessary. As observed by the High Court in Domican, whether the judge is bound to refer to the evidence depends on whether the jury would have sufficient knowledge and understanding of the evidence without assistance. Trials will vary considerably in their length, content and complexity. Allen J observed in Condon (adopted by Wood J in Williams) that guidance for the jury needs to focus on the critical issues.

[83] Williams referred to the short length of the trial as being a factor which would favour the appropriateness of a trial judge's decision not to summarise the facts. Wood J also referred to a single issue trial, when the summing-up follows immediately upon the defence address, as a factor relevant to the decision not to summarise the evidence.

[84] As I have said, Wood J's remarks about respecting the common sense and intelligence of the jury, as well as respecting the decision of counsel in acquiescing in the judge's decision and not seeking any further directions, are important. They are apposite to this trial which was relatively short (4 days), notwithstanding the interposition of other matters and an early adjournment on one day to allow the complainant to receive advice. Moreover, the facts were within a small compass, involving only two counts. The trial was principally a contest of credibility between the complainant and the appellant, with the focus on the complainant's credibility. This must have been patently apparent to the jury and was underlined by his Honour in the summing-up. It is difficult to see what would have been gained (for the jury) by a restatement of the factual matters already the subject of addresses by the Crown and defence.

[85] The strictures of the High Court in RPS are relevant. A judge is not bound to comment on the facts unless her or his other functions require it. In many cases, the safer course to take is to make no comment on the facts except to remind the jury of counsels' arguments. This remark by their Honours in RPS raises the question of the possible dangers which may be inherent in summarising the evidence. The trial judge here was aware of this possibility when he raised the issue with counsel. He referred to the lack of a transcript and the manner in which some witnesses gave their evidence (including the complainant) making note taking almost impossible. There was the clear risk that, in summarising the evidence, his Honour could have misled the jury.

[86] There is also the point made in Davis, another short trial with only six witnesses, that summing up on the evidence may lead to a one-sided appearance being presented to the jury."

28 I would add to those observations that at [88], the Court expresses the view that "the observations in Zorad should not be too highly elevated so as to have the effect of nullifying the power and discretion [contained in the statutory provisions]".

29 I would respectfully agree with the observations of the New South Wales Court of Criminal Appeal. The summary quoted is in many respects apposite to the present case. This was a short trial, having lasted only five days. The extent to which the various witnesses were relevantly unable to identify the accused as the offender would have been very clear to the jury as a result of the cross-examination and as a result of the general remarks made by his Honour. Further, it was plainly, as I have noted, a case in which a detailed summary of the evidence relating to issues of identification may have given that issue undue prominence. For those additional reasons, I conclude that the President was correct in refusing leave in relation to ground 1.

30 Turning to the appeal against sentence, I have already set out the circumstances of the offences. The sentences imposed in respect of those offences were, subsequent to the transitional provisions, 2 years' imprisonment in respect of the burglary, 3 years in respect of the stealing of the motor vehicle, and 6 years in relation to each of the armed robberies and attempted armed robbery.

31 So far as the attempt was concerned his Honour noted that, on the one hand, it was an attempt but that, on the other hand, actual violence was used and so treated it as seriously as the completed robberies. No issue was taken with that treatment.

32 The sentences in respect of the robberies and the attempted robbery were made concurrent with each other. The sentence in relation to the burglary was concurrent with the sentence in relation to the stealing of the motor vehicle, which was cumulative upon the other counts. That makes an effective total of 9 years, and his Honour declined to order that the appellant be eligible for parole. The total sentence was ordered to be served cumulatively on the unexpired portion of a previous term of imprisonment. At the time at which he was sentenced, his Honour was advised that the appellant's earliest date for release on parole had been 11 September 2006. The effect of the sentence imposed on him in August of 2005 by his Honour is that his earliest date for release is now 30 August 2014.

33 The ground of appeal in relation to these sentences asserts that the total disposition was not just and was not an appropriate measure of the total criminality involved. Before dealing with that ground in greater detail, it is appropriate to refer to the appellant's antecedents and personal circumstances. As I have noted, he was convicted after trial so that there is no question of any discount for a plea of guilty.

34 At the time of sentence the appellant was 28 years of age. He had a significant record of offending which included possession of prohibited drugs, escaping legal custody, burglary and assault. There was a Children's Court record which his Honour ignored (save for making the observation that it may have been related to the breakdown and dysfunction of the appellant's early childhood). However, as his Honour correctly characterised it, the appellant's record showed that since he had turned 18 he had shown "a complete disregard for the law and for other people".

35 The appellant was, as his Honour accepted, a drug addict, in later times being addicted to amphetamine. That explained in part, although it did not excuse, the offending. His Honour accepted that the appellant had now some insight into his condition and - at least while in prison - he appeared to be motivated to change his lifestyle. His Honour noted that the motivation for the robberies, which remained unclear, may well have been tied up with the appellant's drug habit, but could also have been related to the fact that he was planning to spend some time with his then girlfriend in an hotel to celebrate his birthday "in some style". There was, it was plain, very little by way of mitigation and much in the appellant's history, as well as in the circumstances of the offences, to give rise to some pessimism about the appellant's prospects of rehabilitation and to concern about the need to protect the community from further offending by him.

36 It is not suggested that his Honour failed to take into account any relevant personal circumstances. His Honour also clearly, during the course of his sentencing remarks and during the course of exchanges with counsel, made particular reference to totality considerations as well as to the difficult question of whether it was appropriate to order that the appellant be made eligible for parole. His Honour noted the effects of the offending upon the victims of the various robberies by way of illustration of the seriousness of offending of this kind. In the end, the submissions made in relation to this ground do not suggest, and in my view could not reasonably suggest, that his Honour overlooked any relevant factor or wrongly took into account any factor which he should not have taken into account. The submission boils down to one of manifest excess having regard to the imposition of the total term on top of the period the appellant was then serving. That submission falls to be tested against the standards of sentencing appropriate to offences of this kind.

37 Prior to the amendments effected by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the range of sentences commonly imposed in respect of what might be described as conventional armed robbery was 6 to 9 years' imprisonment: see Miles v The Queen (1997) 17 WAR 518. After the transitional provisions, then, a term of 6 years' imprisonment is one at the top of, but within, the range.

38 These robberies were relatively serious examples of such offences having regard to the nature of the weapon and the aggressive way in which it seems to have been wielded in a number of cases. Count 7 involved the use of actual violence on a complainant who was over the age of 60 years. The individual sentences in relation to the armed robberies and the attempted armed robbery were appropriate.

39 Each of the armed robberies and the attempted armed robbery could properly be regarded as a separate transaction, each being the invasion of a separate legally protected interest at a different place involving different complainants, although on the same day and as part of one continuing spree. But for reasons of totality, it might well have been appropriate for his Honour to have made some of those terms either cumulative or partly cumulative on others so as to mark the invasion of those separate interests. Totality considerations, however, would suggest that considerations of personal deterrence and rehabilitation of the appellant and - to a somewhat lesser extent - considerations of general deterrence, might be appropriately catered for by making those terms largely or wholly concurrent. That is what his Honour did. The burglary offence, however, and the theft of the motorcycle were plainly, although related to each other, yet a further separate "transaction".

40 If the motorcycle was stolen with no idea of using it to commit the robberies, then it was plainly separate in every respect. If, as counsel for the appellant appears to accept, it was the case that the appellant stole the motorcycle with a plan of using it to commit armed robberies, then that circumstance would aggravate the overall criminality involved in the armed robbery offences and it would be appropriate for some punishment in addition to that normally imposed for such offences to be imposed upon the appellant. In either case, it would be appropriate to impose a cumulative term of imprisonment in relation to the separate transaction represented by the burglary and the stealing. Again, that is what his Honour did. The actual term of 3 years imposed was one within the range of appropriate sentencing for the theft of valuable property in those circumstances.

41 So far as the totality of the term of 9 years' imprisonment is concerned, in relation to the offences committed by the appellant the totality principle requires that a sentence must be proportionate to the totality of criminal behaviour (a proposition with conceptual difficulties, but usually well understood in practical terms). Where the sentence is "richly deserved", or does no more than meet the crimes committed, then a reduction will not result from application of the totality principle, although there may ultimately need to be some reduction in order to ensure that the sentence is not "crushing": see Jarvis v The Queen (1993) 20 WAR 201, at 205 - 207 per Ipp J, at 211 - 214 per Murray J, and at 215 - 217 per Anderson J . See also Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330.

42 Before turning to the question of the term which the appellant was already serving then, I would summarise the position in this way: none of the individual sentences imposed in respect of any of these offences could be described as unduly severe, although the sentences in relation to the robberies and the attempt were towards the top of an appropriate range for offences of that kind. The only accumulation ordered by his Honour was that for the sentences for counts 1 and 2 which were to be served concurrently with each other but cumulatively upon the concurrent

sentences imposed in respect of the armed robberies and the attempt. That was not a particularly severe disposition.

43 The collection of disparate considerations referred to in shorthand as the "totality principle" also apply wherever a prisoner is sentenced for an offence while still serving a sentence for some other offence. The principle will be relevant to the determination of the length of the sentence and to the question whether the sentence should be imposed cumulatively or concurrently having regard to the course of criminal conduct viewed as a whole: see Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 at 8 per Anderson J (Pidgeon and Ipp JJ agreeing).

44 Of course, the principle does not require that there be some mathematical calculation which reduces an otherwise appropriate sentence by deducting from it the whole of the term which a prisoner may then be serving at the time at which sentence is imposed. Rather there is a need for an exercise of judgment which in some cases will result in a substantial reduction in the term which would otherwise be imposed or will cause it to be imposed partly cumulatively, while in other cases there will be very little regard to the sentence which the prisoner is then serving. His Honour plainly had regard to this principle since he said in sentencing the appellant " ... I will bear in mind the burden upon you of the total sentence I am about to pronounce, which will be cumulative on your present sentence of imprisonment."

45 The term of imprisonment which the appellant was then serving did not have very much longer to run, he being eligible for parole in relation to the term he was then serving in just over 12 months from the date on which he was sentenced by his Honour for these offences. In those circumstances, it seems to me that his Honour adequately took account of that factor in imposing the sentence which he did which, as I have noted, imposed cumulatively effectively only the term in relation to the stealing of the motorcycle. Having regard to the total criminality of the appellant's offending, that was a result which was, while not lenient, one which seems to me to have been within an appropriate range.

46 I would therefore dismiss both the review application and dismiss the appeal so far as it relates to the sentence.

47 ROBERTS-SMITH JA: I deal first with the application for review. The application under r 8 of the Supreme Court (Court of Appeal) Rules 2005 to review the decision of Steytler P sitting as a single Judge is

one in which his Honour refused leave to appeal on each of the five grounds of appeal against conviction set out in the appellant's case in CACR 173 of 2005.

48 Mr Watters submitted that on a review pursuant to r 8 it is necessary for him to demonstrate error of law or fact in the decision of the single Judge. That would pose a higher challenge than an exercise which required only that he persuade us that we should grant leave to appeal.

49 The rule springs from s 61(3) of the Supreme Court Act 1935 (WA) which was inserted by s 23 of the Acts Amendment (Court of Appeal) Act 2004 (WA). Section 61(1) of the Supreme Court Act provides:

"In relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of the Court of Appeal that are conferred on a single judge of appeal by rules of court."

"A person who is dissatisfied with a decision or order made by a single judge of appeal or a master may apply to the Court of Appeal to set aside or vary the decision or order."

50 Rule 8 uses the same language as s 61 of the Act. It provides that where a person who is dissatisfied with a decision made by a single judge wants to apply to the Court of Appeal to set aside or vary the decision, that person must file the relevant form within five working days of the decision.

51 Rule 9 provides contextual assistance. That rule states in subr (1) that Pt 5 div 4 of the Act applies to and in respect of an application made under rule 8,"as if [it] were an appeal".

52 Clearly, the references to the application being one for "review" and to the applicant wanting to "apply" to the Court of Appeal rather than to appeal are deliberate. They connote that a review is something different from an appeal. That conclusion is reinforced by r 9(1) because it would be unnecessary to say the application should be treated "as if [it] were an appeal" if it were indeed an appeal.

53 The outcomes which s 61 and r 8(1) envisage are that the application to review be dismissed or that it be granted and the decision of the single Judge be set aside or varied, which are consistent with either a rehearing by this Court or by an appeal in the strict sense.

54 I take the correct principle to be that on a review under r 8 the Court of Appeal is required to make its own assessment of the grounds in accordance with s 27 of the Criminal Appeals Act 2004 as explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at 487, 488.

55 Having done that, I have reached the same conclusion on each ground as was reached by Steytler P for the reasons given by his Honour in Pezzino v The State of Western Australia [2006] WASCA 7, the judgment from which the application to review is brought. I agree also with the additional reasons given by Wheeler J in relation to ground 1.

56 Section 112 of the Criminal Procedure Act 2004, as did its predecessor, s 638 of the Criminal Code, makes it clear that a trial Judge has a discretion about the extent to which, and how, he or she will make observations about the evidence. What a trial Judge thinks necessary in the interests of justice will patently turn upon the evidence in, and circumstances of, the particular case.

57 What was said by the Court in Zorad v The Queen (1990) 19 NSWLR 91 cannot constrain the width of the statutory discretion. Even so, as the Court said in Zorad at 105:

"The idea of a summing up is to present for the jury the issues of fact which they have to determine."

58 That was done here. In the present case not only was a detailed summary of the evidence going to identification not required, in my view it would likely have been problematic. Steytler P was correct to refuse leave to appeal against conviction and I would do likewise. Having reached that conclusion, I, too, would dismiss the application to review. As to the appeal against sentence, I agree with Wheeler JA.

59 MARTIN CJ: There are two matters before the Court. As to the application for review of the decision to refuse leave to appeal against conviction, I agree that it must be dismissed for the reasons given by each of their Honours with which I agree.

60 I would simply add that while I agree with everything that has been said by their Honours, and in particular Roberts-Smith JA, in this case we have not had the benefit of considered argument from the parties on the question of the approach to be taken or the test to be applied to an application for review of the refusal of leave, so that it may be that those

topics may fall to be reconsidered on a later and perhaps more appropriate occasion.

61 As to the appeal against sentence, there is no doubt that the sentences imposed were at the upper end of the range and were, as the sentencing Judge observed, severe. However, the individual sentences and the total sentence imposed were, in my view, within the range available to his Honour and no error of law, fact or principle has been established, which is of course a prerequisite to intervention by this Court. This appeal must therefore be dismissed for the reasons given by Wheeler JA with which I agree. It follows that each of the application for review and the appeal against sentence will both be dismissed.