R v Chahine

M v The Queen (1994) 181 CLr 487 MFA v The Queen (2002) 213 CLR 606 R v Habib [2005] NSWCCA 223 CASES CITED: RPS v The Queen (2000) 199 CLR 620 TKWJ v R (2002) CLR 124 R v Birks (1990) 19 NSWLR 677 Ratten v R (1974) 131 CLR 510 R v Moussa (No. 2) (2002) 134 A Crim R 296

PARTIES: Hassan Chahine Regina

COUNSEL: A - Mr W Terracini SC C - Mr P Miller

• 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1833

GROVE J SIMPSON J ROTHMAN J

5 April 2006 Hassan CHAHINE v REGINA Judgment 1 GROVE J: I agree with Rothman J. 2 SIMPSON J: I agree with Rothman J. 3 ROTHMAN J: Mr Hassan Chahine appeals his conviction by a jury and seeks leave to appeal the sentence imposed by Shillington DCJ on 10 September 2004. 4 Mr Chahine was convicted of robbery in company contrary to s.97(1) of the Crimes Act 1900, an offence that was alleged to have occurred on 4 June 2001. Mr Chahine pleaded not guilty and was convicted after a five day trial. 5 Mr Chahine raises four grounds on the appeal against conviction and three grounds on sentencing. 6 The grounds are: a There was a miscarriage of justice due to the incompetence of trial counsel; b The trial judge erred in directing the jury that the trial was a re-trial without adequately explaining the implications of that direction; c The trial judge erred in directing the jury as to joint criminal enterprise; d The verdicts were unreasonable and incapable of being supported by the evidence; e The sentence imposed should be reduced because: i. The sentence is manifestly excessive; ii. The sentencing judge misapplied s.21A of the Crimes (Sentencing Procedure) Act 1999; and iii. The sentencing judge erred in not finding special circumstances. Facts 7 At around 4 pm on 4 June 2001, two males robbed the St George Bank at Revesby. In the course of the robbery, one of the robbers was hit on the leg when a security screen was activated as he was jumping into the teller area. The robbery was in the amount of $16,585 and was caught on surveillance photos. The surveillance photos do not distinctly identify the appellant. It was alleged, at trial, that the appellant was the robber that jumped into the teller area and was hit by the security screen. The descriptions of this robber were, not unusually, a little different. The teller who was farthest away described him as "slim, very tall and dressed in dark or black clothing with something wrapped around his head". A teller who was slightly closer described him as "slim to medium build, medium to tall in height … wearing sun glasses, a beanie and … a black part of material covering his mouth." A person working nearest to the front door of the bank described him as being "quite young, very tanned, quite slender, around 6 feet tall with a prominent jaw line and prominent lips, and that he was wearing blue jeans, a tan belt, sneakers, a navy blue baseball cap and dark sunglasses." This robber told everyone in the area to get down and demanded money. He also asked for the safe to be opened; started pulling open the drawers and taking money which he placed in his pants. A customer in the bank said he had seen two males outside the branch before he had gone into the bank and that one had a shirt over his face and that the other had a hood over his head. He was at the rear of the bank when the robbery occurred; heard the security screens go up and saw one of the males "wearing a red sports jumper and telling everyone to get down". 8 Both males left the bank and climbed into a Nissan 200 ZX which was parked directly outside and in which there was a driver, also male. The customer wrote down the registration number. The car was followed for a short time and then lost. The car had been stolen from the Westfield car park in Hurstville some time after 2 pm that day. 9 At approximately 4.20 pm (i.e. within approximately 15 minutes of the robbery) the motor vehicle was located in Punchbowl parked outside a house. It had a smashed passenger window and damage to the ignition. The police saw three males walk to the motor vehicle from the driveway of the units in front of which the car was parked. The appellant, wearing a grey coloured top and black pants, opened the driver's door and sat inside. The police drove their car up to the Nissan parking in front of it at an angle which prevented the Nissan from being driven away. The police officer opened his door, drew his pistol, pointed it at one of the alleged co-offenders and yelled "Police, police, get on the ground." 10 At this point, the appellant got out of the Nissan and went to the footpath via the back of the car near the other two co-offenders. The police gave evidence that each saw a bundle of $10 notes fall onto the roadway as the accused got out of the car and walked towards the back. A $50 note was also located on the ground. The appellant raised his arm and yelled out "Juvenile, Juvenile". One of the police officers restrained one co-offender while the other police officer restrained the other co-offender. While the police officers were doing this, the appellant ran up the driveway of the premises next to those from which he had come and sought to go over the fence moving up the street, away from the premises at which he was originally seen. One of the police officers said that he saw a large amount of money go up into the air; the other said that the appellant was throwing a large amount of money into the air as he was jumping the fence. The money ended up strewn all over the driveway and the garden bed and that amount included a number of cash notes and bank binders. Other police chased the appellant who was ultimately apprehended and arrested. At the time of his arrest, the appellant was wearing a white t-shirt and blue jeans. He had long hair, which was tied back. 11 Later that evening police searched a particular unit in the block which was the premises where the appellant was first seen. They retrieved a number of items of clothing, one of which was a navy blue baseball cap and also found a bank slip binder on the floor. 12 The evidence before the Court below was that the trip from the St George Bank at Revesby to the address at which the car was found took, at 60km per hour, 11 minutes and 30 seconds. 13 Inside the Nissan, police located a Nokia mobile phone and a blue jumper. The use of the mobile phone was linked to the appellant. 14 A DNA sample was obtained from the cap located in the search of the premises; this DNA was from three different contributors. The appellant could not be excluded as a contributor and the evidence was that about 1 in 1,200 people could have contributed that DNA. The expert who had conducted the DNA tests, was cross-examined about the possibility of the DNA having been found on the cap because of a "secondary transfer" of the DNA rather than direct contact. The Crown expert did not agree that that was a real possibility. 15 The appellant did not give evidence at the trial. I will need to return to this at a later time. Rather, the defence case was conducted by way of cross-examination of the police officers and other witnesses together with the calling of an expert being a molecular geneticist who gave evidence about the secondary transfer of the DNA and disagreed with the Crown expert that such an occurrence could be discounted in the present situation. The cross-examination of the witnesses included cross-examination on the basis that there had been no money that had fallen from the appellant or that was thrown into the air as the fence was scaled. 16 Evidence was also given by one of the police officers that they had told the appellant at Bankstown Police Station: "We have photographs of the offenders and one is wearing the same shoes as yours." Shortly thereafter, the appellant sought to swap his shoes with another prisoner. 17 As earlier stated, the appellant did not give evidence. As a consequence, there was no evidence from the appellant: · Denying any involvement in the robbery; · Explaining his presence at the unit; · Explaining his position in relation to the red Nissan outside the unit; · Denying that he dropped money on the driveway as he went past police; · Denying that he threw money when he was climbing the fence; · Explaining the presence of the phone in the red Nissan; · Giving evidence about the baseball cap which the Crown alleged was worn by the appellant during the robbery; · Explaining why he tried to swap his shoes when he was in custody at the police station.

But each of these matters were plainly raised through the cross examination of each relevant witness. 18 I will deal firstly with the conviction appeal and then the sentencing appeal, ground by ground. I deal with the grounds on conviction in reverse order.

Ground 4: The Verdicts were Unreasonable and Incapable of being Supported by the Evidence 19 The written submissions of Counsel on behalf of the appellant are informative on this issue, not because of the issue itself, but rather because of the impact that it has on the first ground of appeal. They were:

"[39] The appellant contends that a jury acting reasonably and properly ought to have entertained a reasonable doubt so as to warrant appellate intervention … [40] It is submitted that whilst the Crown case may have been reasonably strong on the charge of accessory after the fact to robbery in company, it was weak in relation to the charge in relation to charge of robbery in company. [41] The appellant relies on the following: s There was no identification of the offenders; · There was no fingerprint evidence linking the appellant to the offence; · There was no evidence from any of the eye witnesses that one of the offenders had a ponytail. The appellant was observed to have a ponytail when he was arrested; · The bank employee … described the man (alleged to be the appellant by the Crown) as wearing a navy blue baseball cap. The appellant was not excluded as being a contributor to the DNA on the red baseball cap that was found; · Evidence of the police officers in relation to the dropping of money was inconsistent, but in any event capable only of making out a charge of accessory after the fact to robbery." 20 Each of the above dot points is an accurate summary so far as it goes. During the course of his oral submissions, Mr Terracini SC for the appellant sought to amend this ground so that it was to read in a way which confined it to circumstances where the appellant had been able to give an explanation. 21 The apparent reason for that attempt to rewrite ground 4 is that, on its face, it is inconsistent with ground 1 of the appeal. In dealing with ground 1, which is based upon an alleged refusal to allow the appellant to give evidence, Mr Terracini SC described the Crown case in the following terms: " …it was, in my submission, an overwhelming case, and there were no prospects, on any rational assessment of the material, that the jury could accept a version if he did not give one." 22 Notwithstanding the submissions of Counsel for the appellant, the Crown case against the appellant was not overwhelming. It was also not weak. Each of those descriptions have been used by Counsel. 23 A challenge to the jury's verdict raises for consideration principles that have been discussed on a number of occasions. The most often used passage is that from the joint judgment in M v The Queen (1994) 181 CLR 487, which was considered, again, by the High Court in MFA v The Queen (2002) 213 CLR 606. His Honour Justice McClellan CJ at CL (with whom Simpson J and I agreed on these principles) summarised the tests in the following way in R v Habib [2005] NSWCCA 223: Section 6(1) of the Criminal Appeal Act provides as follows: 'The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.' Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493.

There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the 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. On the contrary, the court must pay full regard to those considerations.' … … In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].

In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.

Embracing the test adopted by the majority of the court in M the joint judgment stated: 'Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55]. The joint judgment offered the following by way of guidance: 'The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].' " 24 To these principles I added in the same judgment: "[117] … As Gleeson CJ said in a wholly different context: 'Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.' ( Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 566)

[118] In the context of a criminal trial the requirement for finality of factual assessment by a jury must be qualified by the importance of the liberty of the individual and the fundamental requirement of the criminal justice system to prove guilt beyond a reasonable doubt. It is reconciling those two issues which the judgments of the High Court in M v R (1994) 181 CLR 487 and MFA v R (2002) 213 CLR 606 in part address. However, even in that context, in the joint judgment of McHugh, Gummow and Kirby JJ in MFA the High Court reminded us that "a 'verdict of a jury' particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputations of accused persons a special authority and legitimacy and hence finality." ( MFA at 621 [48])

[119] Such finality is qualified by the existence of s.6(1) of the Criminal Appeal Act only because of the intolerable prospect that if an unreasonable conviction, or one unsupported by the evidence, remains extant, it would be inconsistent with the legitimate exercise of lawful power which the community has come to expect from its legal system. (see MFA at [59]) …

[122] The only other further matter of principle to which I should make reference is the passage from M cited in the Judgment of McClellan AJA at [54]. The Judgment in M v R at 494 insofar as it speaks of a "significant possibility that an innocent person has been convicted" is referring, when speaking of an innocent person, to a person of whom it can be said there is not evidence that would satisfy the burden of proving guilt beyond a reasonable doubt. (See Chamberlain v R (1994) 181 CLR 487 at 495)" 25 The Crown case was a circumstantial case and, while there were areas where the evidence could have been stronger, there was sufficient material upon which the jury could convict. In other words, it was open to the jury to be satisfied of the appellant's guilt applying the criminal standard of proof, beyond a reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence. (see MFA at [55]) 26 It was legitimate for Counsel at the trial to draw attention to the deficiencies in evidence. But inferences to the requisite standard could be drawn and were drawn by the jury. They were faced with the alternative, on all that was before them, of believing that the appellant was involved in the robbery or believing the explanation of the appellant that: · The money ($10,670) found on the driveway and outside the units was planted by police (presumably out of their own money); · Alternatively, all the police were lying about the money; · It was sheer coincidence that he was in the premises immediately after the robbery with two others; · Alternatively, he was merely an accessory and not a person involved in the robbery who had left within the 5 minutes in question; · The DNA on the cap was transferred from material with which the cap had come in contact; · The attempt to swap shoes was not evidence of consciousness of guilt.

There was other evidence but this is the material the appellant would have sought to explain, if he had been called to give evidence. 27 The jury found, and was entitled to find, that all the circumstances together proved, beyond reasonable doubt, that the appellant had committed the crime.

Ground 3: Misdirection as to Joint Criminal Enterprise 28 Counsel submitted that a passage of the direction of the trial judge misdirected the jury and directed them to find guilt and/or particular facts. In pressing this submission, Counsel for the appellant quoted a paragraph in the trial judge's summation from page 7 (see later) and a further paragraph at page 9. In fact, all of the paragraphs in between those cited by counsel dealt with the directions given to the jury on the question of joint criminal enterprise or common purpose. In the course of it, his Honour dealt with the necessity, in order to find a joint criminal enterprise, that persons had reached an understanding or arrangement amounting to an agreement between them that they will commit a crime. He made clear that it was not necessary that such understanding or arrangement be expressed or that evidence be given of the particulars of the conversation. His Honour made clear to the jury that they were entitled to look at the facts as they occurred, namely, the stealing of a car a short time before the robbery, that the driver was sitting in the car waiting for two men who went in to rob the bank, then left the bank, got into the car and drove off. He then made clear that, if the jury found such an agreement existed, each of those three men (the two that went into the bank and the driver) would have been guilty of robbery in company. He made it clear that in those circumstances "it is the law that the man sitting in the car is as guilty as the man who climbed through into the back area of the bank and took, actually scooped up the money and took it out." It is in that context that his Honour then said: "So in this case, members of the jury, it is not necessary for you to be satisfied beyond reasonable doubt it was the accused who actually went through to the back. It is, of course, the Crown's case that he was the man. But if you were satisfied that he was one of the persons, one of the two that went into the bank, then, or even that he was the man driving the car, if you are satisfied beyond reasonable doubt on the circumstances presented by the Crown's case that to be the situation, it would be an appropriate case for you to return a verdict of guilty."

It is the above passage about which complaint is made. 29 As I understand the submission of Counsel on this ground, it is that in the last sentence of the immediately preceding quote his Honour directed in a way which "implicitly encompassed a finding of fact by the trial judge that the Crown evidence (if accepted) constituted proof of a joint criminal enterprise." That submission takes his Honour's comments out of context. His Honour had immediately prior thereto said: "A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed, and its existence may be inferred from all the circumstances. It need not have been reached any particular time before the crime was committed. Now applying that to this case, members of the jury, as I said, where [I think this should be whether] there was an agreement between the three people involved is a matter which you will have to decide. There is no one who has come before you to say that they heard these three men discussing a proposed robbery at some house some distance away, and it is not necessary that that evidence need be given, because you are entitled to look at the circumstances." 30 While there are some comments on the facts that, if one disregarded the context, may have been put less neutrally than they might have been, there is nothing in the direction to the jury which was impermissible when taken in the context of the whole of the summing up. It is informative to remind oneself of the passage in RPS v The Queen (2000) 199 CLR 620: "[41] Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the facts in the case. No doubt, that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions, it will require the judge to identify the issues in the case and the relate the law to those issues. It will require the judge to put fairly before jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. [42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases, a judge must give the jury warnings about how they go about that task and, of course, it has long been held that a trial judge may comment, and comment strongly on factual issues." 31 Whatever comments may have been made by the trial judge in his directions to the jury, they were not such, in this area, that the task of ensuring a fair trial was compromised. 32 It should be noted that this matter was not one raised by Counsel at the trial. Counsel did raise with his Honour that it would not be open to the jury, on the Crown case, to return a verdict on a finding that the accused was the driver of the vehicle. That submission was not based upon whether the driver of the vehicle was part of a common purpose but rather that there was no evidence that the accused was in fact the driver of the vehicle. 33 In all the circumstances, this ground fails.

Ground 2: Direction as to Re-Trial 34 It was put to one of the police officer witnesses in cross-examination that there were prior proceedings in that court the year before the cross-examination occurred. There was cross-examination as to one or more alleged differences between the evidence given in this trial and the evidence given on the prior occasion. At the conclusion of the evidence, his Honour said to the jury: "Members of the jury, there's been some questions asked of this witness and some earlier witnesses, I think, about evidence given in this Court on an earlier occasion. The situation is that this is a re-trial. So I just inform you of this situation." 35 Complaint is made about that statement by his Honour because, it is said, his Honour should have explained to the jury that the first trial did not proceed to finality. 36 There is evidence before the Court that in the first trial of the appellant, the trial judge discharged the jury without allowing them to conclude their deliberations. The reason for that is irrelevant now, but it seems that the first trial judge became unavailable. 37 It is submitted that the unexplained information by his Honour, quoted above, would have caused speculation by the jury that the appellant had been previously convicted of the charge but had managed to secure a re-trial on appeal. I find the logic of this submission difficult to follow. The only time a re-trial would be ordered on appeal is because there is some miscarriage of justice which vitiates the finding of the jury. On one view, at least, a new trial ordered on appeal may be a far more favourable reason for the accused than a jury (or one of its members) being unable to make up its mind. However the submission presupposes far too much. Firstly, it assumes that jurors would know the reasons why re-trials occurred. Secondly, it assumes that a jury may discriminate between reasons for a retrial in a manner unfavourable to the accused. Thirdly, it assumes, in the context of a trial, that a far greater significance be ascribed to the comment by his Honour than it deserves. Given the cross-examination on prior statements, it was not inappropriate for his Honour to explain that this was a re-trial. This was done immediately after the evidence had been given. It was part way through the third day of the trial and there were another two days of evidence and submissions. 38 In my opinion, this comment by his Honour could have had no effect on the deliberations of the jury and, to the extent that a juror was familiar enough with the legal process to discriminate between a re-trial after a hung jury and after a successful appeal, such a juror would have no need to speculate, contrary to the appellant's submission, and such a juror would be aware that in either case there had been some unfairness or lack of result in the proceeding, warranting the second trial. Common sense would hold that there would be no need for the second trial if the appellant had already been convicted. It is simply unbelievable that a jury would take a view inconsistent with that proposition. The trial judge, both at the opening of the trial and at the opening of the directions, emphasised that it was the jury, and the jury alone, which had the responsibility of deciding the facts and that such decision must be based upon the evidence adduced before them and nothing more. 39 This ground has no substance.

Ground 1: There was a Miscarriage of Justice due to the Incompetence of Trial Counsel 40 This ground depends upon the proposition that the appellant's counsel at trial ought to have called the appellant and refused to do so in circumstances where the appellant had requested on a number of occasions to give evidence and been refused. These reasons on that issue will also deal, to the extent necessary, with the amended ground 4, i.e. as sought to be amended in counsel's addresses: namely, the claim that it would have been a verdict which was unsafe and unsatisfactory, had the appellant given evidence at the trial. 41 For the purposes of advancing this claim, evidence was called and cross examination occurred as to the nature of the instructions obtained by Counsel in the course of the trial. 42 The appellant gave evidence on appeal twice, the later time after it was made clear by the Court that evidence had not been adduced from him as to that which he would have said if he had been called at the trial. 43 The affidavit filed for the appellant said in part: "[4] About one or two weeks before the trial Jack Rigg [the instructing solicitor] came to visit me at Parklea Gaol and we had a conversation. During our conversation words to the following effect were said: Jack Rigg said: 'As you know they're saying they've got DNA on you on the cap. We'll have to get our own expert.' I said: 'OK.' During the meeting I raised my concerns about the Crown evidence that a mobile phone supposed to belong to me was found in the car which was allegedly used in the robbery. I said: 'Look, about the mobile phone, it doesn't look good for me and I have to explain how it got there. I want to give evidence.' Jack Rigg said: 'No. No. No. I don't think you should. It will just open doors.' [5] As mentioned above, my trial commenced on 23 June 2004. On the second day of the trial, 24 June 2004, Detective Hart gave evidence about the phone that was found in the car by police that was alleged to be my mobile phone. After that evidence, I had a conversation with Greg Stanton [the appellant's Counsel at trial] during a break in the trial. During our conversation, words to the following effect were said: I said: 'I want to get up on the stand and tell the jury about how the phone got into the car.' Greg Stanton said: 'No, don't worry. That's the least of your problems.' I also said: 'He's lying about the money. I didn't have no money. The money they found was no where near where I jumped the fence. I want to explain that to the jury.' (My reference to 'he' was a reference to Detective Hart) Greg Stanton: 'It's been explained. The jury knows that he's lying anyway.' [6] I had a further conversation with Greg Stanton on 29 June 2004 in relation to me giving evidence. That was the day I heard the evidence of Vivien Beilby, the Crown DNA witness and my DNA expert, Dr Brian McDonald. … I said: 'Look, I've been to Hammoud's house. I've slept there. I've eaten there. I've worn his clothes. He's wore my clothes. We were good friends. I should tell the jury that so that they know that I've been there and I could of wore the hat.' Greg Stanton said: 'Don't worry about that.' … [7] At no time during the trial did I sign any document saying I had decided not to give evidence and at no time was I asked to sign such a document. At no time was it explained to me, nor did I understand why I should not give evidence. I just went along with what I was told which was that I shouldn't give evidence in the trial." 44 The other material upon which the appellant relies was that after the trial, the appellant terminated the services of both Mr Stanton and Mr Rigg. Other counsel was retained, as was another solicitor. They appeared for the appellant in the sentencing proceedings. Different counsel and solicitor have appeared on the appeal. 45 During the course of the sentencing proceedings, the appellant was asked, on oath, and answered in the following way: "Q: Do you acknowledge your guilt in this matter? A: Yes I do." 46 Evidence was then given as to the change in his life since the offence, and the likelihood of re-offence. Further, in the course of sentencing, the witness signed a Form 1 in which the appellant sought to have taken into account the offence of being "carried in a conveyance taken without consent of owner" being the red Nissan 200 SX to which reference has been made in the course of these reasons. The only time that could have occurred was in the few hours which included the time of the robbery. Evidence was adduced from each of the legal practitioners representing the appellant prior to the appeal. With one notable exception, those legal practitioners could not remember a large amount of the detail without access to the files which, mostly, they did not have. Otherwise the evidence was relatively consistent. The most relevant evidence was given by Mr Greg Stanton who was cross-examined. That evidence recited that Mr Stanton had given advice as to the calling of the DNA evidence by the appellant and that advice was given, after discussion with Mr Rigg, to Mr Chahine and certain members of his family. Further, Mr G Stanton was cross-examined by Mr Terracini SC on behalf or the appellant and the following evidence was adduced: "The instructions which I had were that Mr Chahine was not present at the robbery. Mr Chahine had not physically been within the unit in the block of flats from which the Crown said he had emerged on the day in question and that he had not discarded anything from his body, his pockets when he was decamping from police at the scene just before his arrest. … They were the instructions which I had, and I ran the trial accordingly. There was no alibi issue and that was the extent of it, sir."

The following exchange occurred between Mr Terracini SC and Mr G Stanton in the course of questioning: "Q: As I understand it, no evidence was called to provide an explanation as to the presence of the accused, the then accused, at the scene and his alleged involvement in it? A: Which scene? Q: At the scene of the robbery? A: At the bank? (The transcript does not adequately show the incredulity of Counsel being questioned as to the nature of that enquiry) Q: And thereafter there was no evidence called to explain where he was, what he did, etc? A: He denied, in instructions, that he was one of the persons depicted in the video camera surveillance, images captured and available to the Crown and its case. He couldn't provide an alibi and accordingly, no alibi was adduced, and there was a serious issue of identification, which he, as an accused would be, as was Mr Doudar, entitled to seize upon. There was no positive identification by any Crown witness of Mr Chahine as a person they claimed, either by line up, photo or video identification, to be one of the persons responsible for the robbery. The Crown relied almost entirely, not in terms of his allegedly being seen at the robbery, upon clothing and footwear. Q: And a mobile phone? A: Not at all. It was never said, at any stage, as I recall it, not having had access to the brief for some time, that Mr Chahine was either carrying or using a mobile phone at the bank. Indeed, whilst I don't agree that the specific conversation between myself and Chahine took place in relation to the mobile phone referred to in his affidavit, I was certainly of the view then and, on reflection I haven't changed my view, the mobile phone wasn't a critical issue in the Crown's case, and it was certainly - to quote his words - the least of his problems, attributed to him. That phone, on the Crown case, simply was a connecting point to Mr Chahine at some stage, either before, during or after the robbery, but it's use in the commission of the crime was never said to be a matter available to the Crown as evidence and I think I addressed upon that at some length. Q: Did he indicate to you that he wanted to give an explanation to the jury about certain issues in the case? A: Yes, and I did, as I did in the first trial, advise him strongly that that would be unwise and an unwarranted course of action for him to take. Q: Did he indicate on a number of occasions that he wanted to give evidence? A: No. There were no more than two occasions on the second trial. Mr Chahine was extremely confident and satisfied with the appearance that I had made on his behalf and his co-accused, as he then was, Mr Doudar, in respect of the first trial. He gave no evidence in the first trial, again on advice, and the issues on the second trial, the re-trial, were effectively no different and I gave him no different advice on the second trial. Q: Did he indicate to you he wanted to have it explained to him why he shouldn't give evidence? A: I gave Mr Chahine an explanation as to those matters without his need to ask me for that explanation." 47 To the extent that there is a conflict between the evidence of the appellant and the evidence of Mr G Stanton, I prefer the evidence of Mr G Stanton. Notwithstanding the time since the trial, his memory of the events was reliable and believable. On the other hand, notwithstanding a very mild cross-examination of the appellant, his evidence was, in part, unbelievable. I do not believe, in particular, that he understood the Form 1 document was a psychological report. I do not accept that Mr G Stanton did not give advice concerning whether Mr Chahine should be called to give evidence. It is not surprising that Mr Chahine, during the second trial, would rely largely on the same approach as occurred in the first trial which resulted in an acquittal in the case of his co-accused and in which, in relation to the appellant, the jury was discharged without verdict. Further, the calling by the defence of its own DNA expert to testify about transferred DNA is inconsistent with the explanation of the appellant given on appeal.

48 I do not use the testimony given at sentencing, or the Form 1, as evidence of Mr Chahine's guilt. I am prepared to look at the issue of the trial on the facts as they existed at the time of the trial. I do, however, use the Form 1 and the evidence on sentencing as material going to the credit of Mr Chahine in his evidence on appeal. 49 On the evidence before this Court, the overwhelming impression is that counsel, Mr G Stanton, took a deliberate forensic course relying on the very matters raised by the appellant in this appeal which go to the weakness of the Crown case. It was, after all, for the Crown to prove its case beyond a reasonable doubt. Having heard Mr Chahine being cross-examined, albeit mildly, I have little doubt that such advice was correct. 50 In order for the appellant to go behind the conduct of his trial by counsel and the decisions taken in the running of that trial, he must show not only error by counsel but a miscarriage of justice and/or an unfair trial. Viewed objectively, not calling the appellant was a rational, tactical decision made to avoid forensic risk which did not result in a material irregularity or the loss of a chance of acquittal that was fairly open. (See TKWJ v R (2002) 212 CLR 124; R v Birks (1990) 19 NSWLR 677; Ratten v R (1974) 131 CLR 510; R v Moussa (No. 2) (2002) 134 A Crim R 296) 51 This ground of appeal is also rejected. As a consequence of the rejection of the grounds of appeal against conviction, it is necessary to deal with the question of sentence.

Manifest Excess 52 The appellant was sentenced to imprisonment for a non-parole period of seven and a half years and a balance of term of two and a half years. The term of imprisonment commenced on 15 March 2003. 53 The maximum penalty for the offence, being a contravention of s.97(1) of the Crimes Act 1900, is 20 years' imprisonment. The offence was committed while the appellant was on parole for a prior offence of the same kind. For that offence he was sentenced to imprisonment for three years and six months with a non-parole period of 20 months. That earlier robbery was committed whist on a good behaviour bond. He has a significant criminal history and his Honour was to take into account the matter on the Form 1. It must be said that the matter on the Form 1 was a necessary part of the principal offence and his Honour seems to have given that due weight by, seemingly, not requiring any or any substantial enhancement of his assessment of an appropriate sentence. 54 It is clear that the sentencing judge treated the offences very seriously; threats were made, although the bank robbers were not armed. 55 I accept that the sentence imposed is at the higher end of the range for this offence, but consider that it was within his Honour's proper sentencing discretion. 56 It is clear that his Honour treated the appellant's prior offences, together with the circumstance that the offence was committed while he was on parole for an offence of the same kind, as requiring condign punishment and far less mercy or concentration on rehabilitation.

Special Circumstances 57 Shillington DCJ declined to find special circumstances. The determination by a sentencing judge that there are or are not special circumstances requiring a departure from the specified statutory ratio of non-parole period to the term of the sentence is one almost entirely within the discretion of the sentencing judge. It would be unusual for the Court to intervene on the basis of a sentencing judge refusing to find special circumstances, or more accurately, refusing to find such special circumstances that require a lesser non-parole period. It would require evidence that the discretionary exercise miscarried (i.e. there was an error of principle or manifest error). The situation in this appeal does not warrant an interference with his Honour's exercise of discretion.

Failure to take into account Section 21A of the Crimes (Sentencing Procedure) Act 58 The submission made on behalf of the appellant, in relation to this ground relies upon the statements made by this Court, on a number of occasions, that an unexplained reference to the criteria adumbrated in s.21A of the Crimes (Sentencing Procedure) Act is unsatisfactory. In this case, however, the sentencing judge made no reference to s.21A as such. His Honour, an extremely experienced sentencing judge, paid regard to each of the relevant factors without denoting that some or all of them may be listed in s.21A. Such an approach discloses no error. The appellant does not point to any factor misused by his Honour or any factor not used in favour of the appellant that should have been used. 59 In the circumstances, I propose that the Court make the following orders: a Appeal against conviction dismissed; b Leave to appeal against sentence granted; c Appeal against sentence dismissed.

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.