R v Conci; R v Kane [2005] VSCA 173

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I agree in the disposition of these matters as proposed by Eames, J.A. and I do so for the reasons advanced by him in his judgment.

2 The applicants were both convicted by verdicts of a jury on one count of theft, one count of armed robbery and one count of intentionally causing injury. Conci now makes application for leave to appeal with respect to both conviction and sentence and Kane makes application for leave to appeal against conviction only.

3 The offences arose out of a robbery which occurred at about 4 a.m on 14 July 2001 at a Caltex service station in Brunswick. The service station attendant, Mr Adchalingam, was working at the rear of the store when two men entered, one of whom was wearing a beanie and the other a baseball cap. Whilst one man went to the till the other moved to the back of the store where Adchalingam was standing. The employee moved towards the counter, intending to stop the men, and as he did so he was pushed by the man who had walked towards him at the rear of the store. The man behind the counter had been using a knife in an attempt to open the till and he stabbed the employee to the chest with the knife, causing a small injury. Adchalingam picked up a bin and faced the two men, who were then behind the counter. He threw it at the men and then ran from the store, after first activating a silent alarm.

4 Adchalingam told the jury that when he was stabbed he had a clear view of his attacker's face, and he described the knife which had struck him as being very sharp and having a length approximating two-thirds of the palm of his hand.

5 On 6 October 2001, that is, some four months after the robbery, Adchalingam was shown a photo-board and asked if he could recognise anyone in the photographs. He identified photograph No. 2, which it was agreed at trial was a

photograph of the applicant Kane. When he made that identification Adchalingam said that the person shown in photograph No. 2 was the man who had stabbed him at the time of the robbery.

6 The events inside the service station were captured by security video, a tape of which was tendered in the trial. Adchalingam said in answer to cross-examination that he had told the police that the person who came to the back of the store was wearing a beanie and was about five foot two inches tall. He said that the other man was not wearing a beanie and he was aged about 32 or 33 years and was about five foot ten inches in height.

7 On the day following the robbery, that is, on Sunday 15 July 2001, police officers gave chase to a Ford sedan which was reported to have been involved in the robbery the previous day. A pursuit ensued, which concluded when the vehicle ran off the road and struck a pole. There were four people in the car, whom police took into custody. The driver was Richard Waite. The front seat passenger was the applicant Michael Conci. In the back seat were Kelly Dennerley and Jordan Glasgow, the younger brother of Conci. Upon searching the occupants of the vehicle, Richard Waite was found to be carrying a closed pocket knife, about ten centimetres in length. When the vehicle was searched by police a number of items were recovered from it including, in the boot, the cash register box, and also another knife, which had a black handle.

8 By the time of the trial of the applicants, Richard Waite and Kelly Dennerley had already been dealt with in the courts for their own participation in these offences. Their sentences had been reduced by virtue of them undertaking to give evidence against the two applicants,

9 Waite had pleaded guilty to offences of theft of a motor vehicle, robbery, theft of petrol, driving offences and possession of a regulated weapon. He had been sentenced to two years' imprisonment, to be suspended after twelve months, for a period of three years. At the time of these offences Waite was subject to and in breach of a suspended sentence which had been imposed on 19 September 2000, but by the time of the trial of the applicants Waite had not been charged with the offence of breaching his suspended sentence.

10 Dennerley had pleaded guilty to one count of armed robbery being that which occurred at the service station, and also entered a plea of guilty to a charge of attempted robbery in an unrelated matter. She had been sentenced to eighteen months' imprisonment on the armed robbery count and twelve months' imprisonment on the other count, with a total effective sentence (after cumulation orders) of two years' imprisonment, but the whole of her sentence had been suspended for two years.

11 When interviewed by police, after being apprehended, Waite gave a record of interview, subsequently followed by a statement. The same photo-board was shown to Waite as was later shown to Adchalingam and he, too, identified photograph No. 2 as the second man who entered the service station. He told police, initially, that he did not know that man, save that he was known to him as Pat.

12 At trial Dennerley gave evidence that on the evening of Friday 13 July 2001 she had been in the company of Richard Waite in the city when they had come across a motor vehicle in which there were three males who introduced themselves. There was "Michael" and his brother "Jordan", but she said she did not catch the name of the third man. She and Waite got into the car and they were offered, and took, drugs. She denied that she left the city in a taxi. Dennerley said she had two tablets of ecstasy in the vehicle and later the group obtained heroin on two occasions. They then drove around the streets debating how they could obtain more money and it was agreed, she said, that they would commit a robbery at the Caltex service station. Dennerley volunteered that she would go into the service station, first, so as to check how many people were present. Having done so she returned to the car and reported to its occupants, whereupon it was agreed by all that a robbery would be committed. Michael's brother, Jordan, wanted to go in but Michael would not let him do so and instead went himself. Dennerley said it was agreed by all that a knife was to be used as a weapon in the robbery. She saw the knife in the possession of the man whom the Crown contended was Kane. She said that Michael (whom the Crown alleged was Conci) and the other man (Kane, on the Crown case) left the car and went into the service station. Michael had exchanged jackets with his brother and Dennerley had given Michael a scarf. Dennerley thought that both of the men were wearing hats.

13 Shortly afterwards the two men returned to the car, carrying the till. Waite was driving the vehicle and they departed the scene. Dennerley said that Michael was upset with Kane[1] because Kane had stabbed the service station attendant. Kane was agitated and was stabbing the back of the passenger seat with a knife. They drove to Kane's house where the till was opened and the money divided between them. Michael and Waite then left to obtain further heroin, which was later used by all the occupants. An argument developed between Jordan and Kane over money, which resulted in Kane suffering an injury. The vehicle left the premises, the till having been put back into the boot of the car. Kane was dropped off at a hospital and the four remaining occupants of the car drove away. Waite stole petrol at a service station and shortly thereafter the vehicle became involved in a police pursuit.

14 Under cross-examination Dennerley conceded that she had been a heroin addict at the time and that heroin addiction can affect memory. She had taken up to fifty valium on the date of the offence and had also taken ecstasy and had used heroin once or twice that evening. She agreed that she had given an undertaking to give evidence in the trial and that she would be further sentenced if she did not give evidence in accordance with that undertaking. She agreed that on occasions during the night of the offences she had been going in and out of consciousness. Under cross-examination she agreed that there had been no discussion about using a knife until after she had made the inspection at the service station and had returned to the car. She said at one point Waite had been in the rear seat but then when the two applicants went into the service station he got into the driver's seat. She agreed that she had told police in her statement that Waite knew Michael and his brother Jordan but that he did not know the third male in the car.

15 In his evidence Waite confirmed Dennerley's evidence that they had been together in the city when they had met Conci, his brother Jordan and Kane. Waite said that he had first met Conci in 1999 and had been in his company on a few occasions since then. He did not know Conci's brother Jordan and did not find out they were brothers until later. He said he had first met Kane in about 1999 and had then seen Kane on an almost daily basis for a period of about three or four months. (That evidence was carefully confined, by agreement between prosecution and defence, in order that the jury not learn that Kane and Waite had been in prison together and that it was in prison that they had seen each other on a daily basis for some months).

16 Waite said that after he and Dennerley joined the others in the car they went to look for amphetamine, travelling together by taxi to Brunswick for that purpose. Thereafter they decided to steal a car. Waite said that he stole a Ford sedan and they then drove away in it and discussed robbing a service station. He said Dennerley had gone into the service station to reconnoitre and upon her return an argument ensued between Jordan Glasgow and Conci because Glasgow wanted to go in to the service station for the robbery but Conci would not allow him to do so. Glasgow then remained in the back seat and Conci and Kane entered the service station. They returned with the cash register, whereupon Waite drove away, being directed to Kane's house.

17 On the journey to Kane's house Kane said that he may have stabbed the service station attendant. Once inside Kane's house they shared the proceeds of the robbery, then Conci and Waite left in order to again purchase drugs. They later returned with heroin, which was consumed by all. Kane was injured in an argument with Glasgow and Kane was driven to a medical centre. After dropping Kane off they went to Waite's house and then subsequently Waite stole petrol and the vehicle was pursued by police and crashed. The cash register was still in the boot of the car when they were apprehended.

18 Waite agreed that he had consumed a lot of drugs, including both valium and speed, on this evening and that he had used heroin on the day of the offences, which drug he agreed affected memory and perception. He agreed that he had pleaded guilty to a charge of robbery rather than armed robbery, on the basis that he knew nothing about a knife being used. He denied that at any stage he had been in the back of the car and denied seeing anyone swapping clothing or hats. He agreed that he was badly affected by drugs on this night and that a knife had been found in his possession. He said he had been given that by Jordan Glasgow.

19 When cross-examined by counsel for Kane, Waite agreed that he had told police that Kane was about the same height as Conci and had short brown hair. He agreed that he had told police that he had met Conci and his brother and a third person whom, he told police, he did not know, but that that person said his name was Patrick. He said that when he was shown the photo-board by police he was not 100% sure when he made the identification of Kane from the photo-board.

20 Waite said he had not noticed that the applicant Kane was missing four top teeth. (The only witness called on behalf of Kane in his defence was a dentist who said that at the time of these offences Kane had had, in all, seven teeth removed from his mouth, four of which were at the front of his mouth).

21 Kane agreed he had an extensive criminal record and could be re-sentenced if he did not give evidence against the applicant.

22 The owner of the stolen vehicle gave evidence that after the vehicle was returned to her home by police she found yet another knife, on the floor at the back seat, and she also found stab marks to the back of the driver's seat.

23 Neither applicant gave evidence.

Conviction application - Conci

24 Conci made application for leave to appeal on one ground of appeal, alleging that the verdicts were unsafe and unsatisfactory. Three particulars were given. At the hearing of the application the existing ground of appeal and its particulars were abandoned, and counsel sought leave to amend the grounds of appeal by substituting new grounds for the existing ground. The Court permitted counsel to argue those grounds without ruling on the application to amend at the outset of the hearing.

25 The proposed grounds of appeal which were argued before us on behalf of Conci were as follows:

1.(d) The learned trial judge erred in directing the jury that they could convict the applicant of the offence of count 2 (armed robbery) even if they were not satisfied beyond reasonable doubt that he had entered the service station.

(e) The verdict of guilty on count 2 (armed robbery) was unreasonable and/or cannot be supported by the evidence.

2. The verdict of guilty on count 3 (intentionally causing injury) was unreasonable and/or cannot be supported by the evidence.

26 As to proposed ground 2 Mr Hughan submitted that Conci's conviction on count 3 of intentionally causing injury was unreasonable and/or could not be supported by the evidence by virtue of the fact that the prosecutor confined the case against Conci on count 3 to an allegation of complicity with Kane which was based on the principle of aiding and abetting. Unlike the approach adopted for the armed robbery count, the prosecution did not contend, in the alternative, that with respect to count 3 Conci was complicit by virtue of having acted in concert with Kane.

27 It is remarkable that the prosecution confined its case against Conci on count 3 to the contention that he aided and abetted Kane in committing the offence of intentionally causing injury. Had the Crown relied instead, or alternatively, on the doctrine of common purpose then the case against Conci on count 3 would have been overwhelming. In my opinion, a reasonable jury would inevitably have concluded beyond reasonable doubt, from all the circumstances, that there was a common criminal purpose between Conci and Kane and that Conci must have foreseen that the intentional causing of injury to the service station employee by Kane was a possible incident of the crime which they had agreed to commit. On that basis he must have been convicted on count 3: see Johns v The Queen[2]; McAuliffe v The Queen[3]; Miller v The Queen[4]. That would have been so notwithstanding the fact that Conci may have had qualms about what Kane had done in stabbing the employee and wished he had not so acted. If Conci, having forseen that such an offence was a possible incident of the planned crime, nonetheless did not withdraw from the enterprise, then he would have been guilty, on this basis, whatever be his regret for its occurrence: See R v Lowery & King[5]

28 The jury, however, were not instructed as to common purpose and were directed solely as to complicity with Kane by way of aiding and abetting. Given that that was how the Crown put its case, Ms Carlin accepted that it must be on that basis alone that the reasonableness of the verdict should now be assessed.

29 Mr Hughan submitted that there was no evidence, whatsoever, that Conci encouraged or offered any assent to the intentional injury offence which was committed by Kane. Not only was there no direct evidence of his assent to the stabbing, counsel submitted that the evidence disclosed that Conci remonstrated with Kane when the two returned to the vehicle after the robbery had taken place. Conci's criticism of Kane for having used the knife was only consistent with that being an offence for which he had given no express or tacit assent, counsel submitted.

30 Similar arguments had been addressed to the judge at the conclusion of the evidence, upon a submission that there was no case to answer with respect to this count. The learned trial judge concluded that the submission amounted to a contention that a conviction would be unsafe and unsatisfactory, rather than that there was no evidence at all on which a guilty verdict on count 3 could be sustained. He concluded that it would be inappropriate for him to take the count away from the jury in those circumstances. That ruling was not challenged on appeal, and was plainly correct: see Doney v The Queen[6]; R v R[7].

31 Although the learned trial judge declined to take count 3 away from the jury with respect to the applicant Conci, his Honour made strong comments to the jury about that count. He told the jury that if they were satisfied it was Kane who was holding the knife at the time that the victim was struck they would have to consider whether Conci was also guilty of the offence, and he added:

"My comment to you is that, if you are satisfied beyond reasonable doubt, that Michael Conci was the other person who went into the shop, in the light of that evidence concerning him being upset with the other person who went into the shop, it would, in my opinion, be dangerous for you to convict him of the offence of intentionally causing injury, for that reason."

32 Later, after directing the jury concerning the complicity of Conci as an aider and abettor, his Honour added:

"In going over that matter, as I said to you, that perhaps in the context of this case it is difficult to be satisfied that Michael Conci was an aider and abettor in respect of the causing of injury because the evidence was that he had argued with the man said to be the accused Kane when they got back into the car and abused him for having used the knife on the alleged victim. And I was making the comment in fact

that it might be difficult in this case to come to the conclusion that Conci was an aider and abettor, when the evidence was that so soon thereafter Conci was being critical of Kane for having used the knife."

33 Mr Hughan submitted that this Court ought conclude that the evidence was such that a jury acting reasonably could not have been satisfied beyond reasonable doubt that the applicant Conci was guilty of this offence, as an aider and abettor_[8]_.

34 The distinction between what might be sufficient - for a count requiring proof of specific intention - to sustain a verdict of guilty on the basis of common purpose, on the one hand, and as an aider and abettor, on the other hand, was illustrated in the joint judgment of Wilson, Deane and Dawson, JJ. in Giorgianni v the Queen[9]. Their Honours held that foresight of possible consequences might be sufficient intention in law for many offences but they added:

"There are, however, offences in which it is not possible to speak of recklessness as constituting sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement."

35 Count 3 required proof of specific intent. As to what would be sufficient to establish that a person was aiding and abetting, their Honours continued[10]:

" The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts . . ."

36 No objection was or is made to the directions given as to aiding and abetting. They followed the standard formula of R v Lowery and King (No.2)[11]. Mere passive acquiescence or assent, without more, would not be sufficient to create guilt. There must at least be a direct or indirect expression of willingness to assist the principal offender, without it being necessary that actual assistance was provided, or that there be conduct amounting to concurring in the carrying out of the offence: see R v Makin[12].

37 Were the actions of Conci such that they constituted aiding and abetting, counselling or procuring the offence of intentionally causing injury to the store attendant? Put another way, was it open to the jury to conclude that Conci aided and abetted the intentional injuring of the victim? Ms Carlin submitted that it was open to the jury to so conclude, having regard to the nature of the attack on the victim, the manner in which the robbery took place, the discussion which preceded the robbery and the conduct of Conci during and after the robbery. Not only did he do nothing to dissuade Kane from his conduct during the robbery, it was Conci who sought to keep control over the victim so that the robbery would not be impeded. After the robbery Conci shared the spoils. Thus, Ms Carlin submitted, the two men acted as a team, each supporting the other.

38 The jury had the benefit of the video tape, which the jury might well have regarded as providing strong support for Ms Carlin's contention that they had acted as a team, with Conci providing support and encouragement for all of the conduct of Kane, notwithstanding his protests afterwards that Kane should not have stabbed the employee.

39 In my opinion, his Honour was right to conclude that it was open to the jury to convict the applicant Conci on the evidence before them as to count 3. Indeed, it was not contended before us that there was no evidence at all on which the jury could have concluded that Conci was guilty on count 3. Plainly, and notwithstanding his Honour's comments, the jury so concluded. The jury would more comfortably have drawn an inference against Conci in this regard by virtue of the fact that he chose not to give evidence. Having reviewed the evidence in this case I have concluded that the verdict was not unreasonable or unsupported by the evidence.

40 In my opinion, therefore, the contention that the verdict on count 3 was unreasonable or cannot be supported by the evidence is without substance.

41 I turn to proposed ground of appeal 1, which complains that the conviction of Conci on count 2 (armed robbery) was unsafe and unsatisfactory or could not be supported by the evidence.

42 The prosecutor contended to the jury that they should be satisfied that Conci was one of the two men who actually entered the service station to commit the robbery, but he addressed the jury, also, on an alternative basis for conviction. He submitted that even if the jury concluded that Conci had remained in the vehicle, and that Kane and someone else had entered the service station, then he was nonetheless a party to the offence because he had agreed to the armed robbery as one of the occupants of the vehicle and he had subsequently shared the proceeds of the robbery.

43 Mr Hughan submitted that for Conci to have been convicted of armed robbery rather than just robbery on the alternative basis which the prosecutor advanced the jury would have needed to be satisfied beyond reasonable doubt that Conci knew that the robbers were going to be armed with a knife. He submitted that the evidence was deficient as to that and, thus, the jury could not be satisfied that Conci would have had that knowledge. Mr Hughan pointed to several matters which he submitted lent weight to the contention that it was unsafe for the jury to conclude that Conci would have known of the presence of a knife.

44 Mr Hughan referred, first, to the redirection of the jury in response to an exception taken to the charge on this issue. The learned trial judge told the jury, counsel submitted, that the evidence as to whether the knife had been produced before the robbery was "equivocal" and that "there was some reason why you should perhaps have a doubt about that". The short answer to that contention is that in making those remarks his Honour was not stating his own opinion, but was merely repeating the submissions of defence counsel.

45 Next, counsel referred to the evidence of Dennerley at trial that she had seen the knife before the armed robbery was committed, and that it had then been held by Kane. Mr Hughan noted that the witness had agreed that at the committal she said she had no memory of having seen the knife until after the armed robbery had been committed. At trial she explained the discrepancy by saying to the jury that she had been nervous at the committal, and gave the wrong answer. She strongly asserted that the correct position was as she had stated at trial. The jury were entitled to accept her trial evidence, in my opinion.

46 Mr Hughan, next, submitted that Waite had pleaded guilty merely to robbery, on the basis that he did not know that a knife was going to be used, and he had given evidence on this trial that he had not seen the knife. As to that argument, the jury might well have considered that Waite's maintenance of his denial as to that was explained by the fact that his denial had led to the Crown accepting his plea to robbery only, and not armed robbery. It was, perhaps, understandable that he was anxious not to undermine the favourable outcome he had obtained. Whilst that might mean that he had been lying to the jury on that issue, it did not mean that the jury had to reject all of his evidence.

47 In my opinion, it was open to the jury to convict Conci on count 2 on the basis that notwithstanding the evidence of Waite that he had not seen the knife, and the suggestion that Dennerley had given different evidence at the committal, there remained evidence that at least one knife had been in the car and the jury were entitled to conclude that it was known by Conci that a knife was to be used for the purpose of the robbery. Dennerley gave evidence at the trial that the knife had been produced in the car prior to the robbery. The presence of one or more knives in the car would have enabled the jury to draw an inference that Conci would undoubtedly have known that the robbery was to be effected by use of such a weapon. Given that one or more knives were in the car the improbability of the robbery being conducted without being armed with one of them would have been apparent to the jury. Furthermore, the very fact that after the robbery Conci complained about Kane's use of the knife suggested that it was its use that upset him, not that he had been taken by surprise by the fact that Kane had been armed with a knife.

48 In my view, a conviction on count 2 was available on the evidence in this case, and this ground was not made out.

49 In my opinion, Conci's application to amend his grounds of appeal should be allowed but his application for leave to appeal against conviction should be dismissed.

Conviction appeal - Kane

50 The applicant Kane listed seven grounds of appeal, six of which were abandoned upon the hearing of the application. The sole ground which was argued (ground 6) reads as follows:

"6. The learned trial judge erred as to a matter of law in omitting from his charge to the jury that:

(a) two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact;

(b) any emphasis that the only pieces of evidence linking the accused to the crime was the two pieces of identification evidence;

(c) any comment that the photo-board photograph is only a two dimensional representation of the accused;

(d) any comment as to the 'rogues gallery' effect of the photo-board evidence;

(e) any comment that the defence are not present during the process of identification from the photo-board;

(f) any reminder of the witness Waite's statement that he was not 'one hundred per cent sure' as to his identification from the photo-board;

(g) any comment as to the process by which Waite came to give evidence and the benefits for Waite in so doing and the consequences if Waite failed to give the evidence expected of him;

(h) any comment that Waite had not been charged in relation to a breach of a suspended sentence; and

(i) any reminder that the witness Dennerley said in evidence that Waite did not know the third male in the vehicle."

51 At trial Kane's counsel argued that there was reasonable doubt as to the identity of the second person who entered the service station and was responsible for causing the injury to the attendant. As I have said, Kane himself did not give evidence. It was submitted that the directions given by the learned trial judge were inadequate to draw to the attention of the jury the dangers of the identification evidence against Kane. Mr Kowalski submitted that the weaknesses inherent in Waite's identification evidence of Kane should have been highlighted by the judge.

52 In the first place, it must be said, as the judge indeed did, that Waite's evidence was really not that of identification, but of recognition. In any event, the attack on Waite's evidence of identification was a very thin one, in my opinion. He said in his evidence that he knew Kane, at one time having seen him on a daily basis for months. On the occasion of these offences he had spent the better part of a day in Kane's presence. Counsel pointed to his evidence of being less than 100% sure of the photo in the photo board, but in my opinion the jury would have been entitled to conclude either that he was being deliberately coy with police at that time or else that he was saying no more than that there was some uncertainty that it was a photo of the man he knew as Kane.

53 I observe in passing that the attempt by defence counsel to suggest to Waite that he might have been mistaken about the identity of the man who assisted Conci in the robbery was somewhat risky. The learned trial judge, on an application by the prosecutor, might well have been justified in allowing the prosecutor to establish that Waite's knowledge of the applicant Kane was gained from their time as fellow prison inmates on an earlier occasion.

54 Mr Kowalski submitted that his Honour inappropriately suggested to the jury that the evidence of Adchalingam corroborated the evidence of Waite, should the jury accept the accuracy of the evidence of Adchalingam. Mr Kowalski submitted that his Honour was wrong to suggest that Adchalingam's evidence provided corroboration of Waite. He submitted that this was an instance of two inadequate and dangerous identifications being incapable of lending support one to the other. He cited R. v. Burchielli[13].

55 In my view the detailed warnings said to have been appropriate in Burchielli were not required in this case. In Burchielli[14] Young, C.J. and McInerney, J. referred to the warnings identified in Davies and Cody v. The Queen[15] being those appropriate in the case of an identification witness whose previous knowledge of the accused has not made him familiar with his appearance. It was in that context that their Honours discussed[16] the problem as follows:

"Now it often happens that two pieces of evidence, each in themselves unconvincing will in combination produce a high degree of persuasion of a particular conclusion. The reason is often that the coincidence of the two pieces of evidence would be unlikely if the ultimate fact or conclusion had not occurred. But this is not true of identification evidence. Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact."

56 The situation being addressed in Burchielli was very different to that which arose here. Not only did Waite know Kane but the evidence of Adchalingam did not stand alone, either. The jury might well have regarded it as being supported to some extent by the video tape evidence which was tendered. As was made clear in Burchielli[17], what is required of a trial judge in a case in which an issue of identification is raised will depend very much on the circumstances of the individual case. In Burchielli[18] their Honours, in the joint judgment, referred to a passage from Lord Morris of Borth-Y-Gest in Arthurs v. Attorney-General for Northern Ireland[19] in which his Lordship held:

"The circumstances of individual cases will, however, greatly differ. Thus there may be cases in which a witness can say that at a certain place in time he saw and clearly recognised the accused person. If the accused person was someone who was well-known to him or at least was well known to him by sight and if the conditions at the relevant time were such that there was nothing to impede or to prevent recognition or to make recognition difficult, then a jury would mainly have to consider whether the witness was both truthful and dependable."

57 As their Honours said in the joint judgment in Burchielli, where it was necessary to do so the duty to give an identification warning would not be discharged by a half-hearted formula of words or a warning in general terms. As Gibbs, J. held in Kelleher v. R.[20] the jury must be given "careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence". In my view, however, none of the specific matters listed under the paragraphs of the remaining ground of appeal were matters which necessarily, either alone or in combination, had to be addressed by the learned judge in the circumstances of this case in order to avoid a miscarriage of justice on the question of identification. His Honour made clear that identification weaknesses and strengths was a central feature of the addresses of both counsel, and he addressed the issues adequately. The dangers of the evidence of Waite and Dennerley were clearly brought to the attention of the jury and no contrary assertion is now made about that, save that some further arguments are identified as being matters which might have been mentioned by the judge, by way of providing further illustration or emphasis of the arguments.

58 His Honour dealt with the question of identification at length in his charge and, in my view, did so in terms which were entirely appropriate and adequate in the circumstances of this case. His Honour was not obliged to put every argument which might be raised as to the dangers of identification: see Domican v. The Queen[21].

59 In reality, this case did not turn on identification evidence, at all. Rather, it turned on whether Waite was telling the truth in saying that Kane was the second robber. In my view there is no substance in this ground of appeal and Kane's application for leave to appeal against conviction should be dismissed.

Sentence - Conci

60 Conci was born on 26 March 1977 and was educated to form 3 level before commencing work at the age of fourteen years, after the breakdown of his parents' marriage. He commenced using cannabis from an early age and thereafter became a heroin user and, later, an addict. He admitted 96 prior convictions and four findings of guilt from seventeen appearances in the Children's Court, Magistrates' Court and County Court. Many of the offences were for dishonesty and drug offences, including many burglaries, and he has a prior conviction for armed robbery in 1994, when he was aged seventeen years and for which he was detained for eighteen months in a youth training centre.

61 It is unnecessary to deal at length with the circumstances of Conci. As I have said, it is not disputed that the sentences imposed in this case were within range.

62 The sentencing of Conci was complicated by the fact that he was already serving two separate sentences for other offences at the time of his sentencing on the current offences. The grounds of appeal with respect to his application for leave to appeal against sentence did not challenge the length of the sentences imposed on the individual counts but, rather, focussed attention on the declaration concerning pre-sentence detention, on the orders of cumulation with other sentences, and on the fixing of a new non-parole period.

63 On 12 March 2003 Redlich, J. had sentenced Conci to three years six months' imprisonment on a count of assisting an offender, he having initially been charged with murder. In effect, he was treated as an accessory after the fact to murder. Redlich, J. fixed a non-parole period of eighteen months and declared that 583 days pre-sentence detention had been served. That pre-sentence detention dated from 7 August 2001, when the applicant had been arrested on the murder charge. He had thereafter remained in custody. The head sentence imposed by Redlich, J. would have expired on 7 February 2005.

64 On 1 April 2003 Judge Davey sentenced Conci in the County Court at Bairnsdale (with respect to burglary charges) to a further sentence of twenty three months imprisonment and fixed a new non-parole period of twelve months. Judge Davey did not order that any portion of that sentence was to be served cumulatively on the existing sentence.

65 Against that background, on 17 June 2003 the learned trial judge dealt with the applicant on the present counts in the following way. His Honour sentenced Conci to nine months' imprisonment on the count of theft (count 1), to four-and-a-half years' imprisonment on the count of armed robbery (count 2) and on count 3 (intentionally causing injury) to twelve months' imprisonment. His Honour directed that three months of the sentence on count 1 and six months of the sentence on count 3 be served cumulatively with the sentence imposed on count 2. That produced a total effective sentence of five years and three months' imprisonment.

66 His Honour ordered that three years of the sentence be served cumulatively with the sentence imposed on 12 March 2003 by Redlich, J. and cumulatively upon any additional period ordered by Judge Davey in April 2003. His Honour fixed a new non-parole period, pursuant to s.14 of the Sentencing Act 1991, of four-and-a-half years, to date from the day of his own sentencing orders, 17 June 2003.

67 It is clear, in my opinion, that what his Honour intended to achieve was that when the cumulative portion of his own sentence was added to the sentence imposed by Redlich, J. the practical effect would be the same as though a head sentence of six years and six months commenced from the date of the sentence imposed by Redlich J. The non parole period was intended to have been four and a half years, also dating from the date of the sentence of Redlich, J. It is agreed by counsel that his Honour intended by the fixing of a new non-parole period to achieve a gap of two years between the new head sentence and the new non-parole period.

68 Although his Honour made an order that his sentence would be cumulative on any additional sentence which Judge Davey had ordered to cumulate on the sentence ordered by Redlich, J. there was, in fact, no such additional period.

69 Thus, it is apparent that his Honour intended that two years and three months of his sentence of five years and three month's imprisonment was to be served concurrently with the sentence imposed by Redlich, J. However, when the judge sentenced the applicant on this occasion the applicant had less than that period still to serve under the sentence of Redlich, J. once the pre-sentence detention of 583 days was taken into account.

70 His Honour intended that the new non-parole period of four years and six months which he imposed would date from his order but would be reduced by the period of 583 days pre-sentence detention. In order to ensure that the pre-sentence detention of 583 days was taken into account, and at the request of counsel on both sides that he so act, his Honour made his own declaration that 583 days had been pre-sentence detention. That declaration, it is agreed on both sides before us, was made in error, because the previous order of pre-sentence detention would continue to apply to the new total effective sentence: see R v Stares[22]. His Honour was not referred by counsel to relevant authority when they sought these orders.

71 There was an additional difficulty in the sentences which were imposed. Because the judge dated his orders as operating from the date of his own sentencing, then, so Mr Hughan submitted, the applicant had lost the benefit of about one and a half month's period of concurrency which he would have achieved by virtue of the total concurrency with the sentence of Redlich J, which Judge Davey ordered as to his own sentence. Ms Carlin did not concede that the sentencing orders had that additional result, but agreed that uncertainty remained whether that was so.

72 There are several ways in which this rather confused situation may be rectified so as to achieve the outcome which the sentencing judge intended. The most effective way is to impose exactly the same sentences on the individual counts as did his Honour, but to make no order as to cumulation of any portion of the sentences on counts 1 and 3 with the sentence on count 2. That would result in a head sentence of four years' and six months' imprisonment on the present counts. An order should then be made cumulating three years of that sentence upon the sentence imposed by Redlich, J., thus producing a sentence of six years and six months' imprisonment. A new non-parole period of four years and six months should be declared, but be dated from 12 March 2003, the date on which Redlich, J. imposed his sentence. The existing declaration of 583 days would then ensure that that period, to that date, was taken into account in calculating the earliest date on which the applicant would be eligible for parole.

73 I propose, therefore, that the Court make the following orders with respect to Conci's application for leave to appeal against sentence:

1. That the application for leave to appeal against sentence be granted and the appeal against sentence be heard instanter and allowed so as to vary the sentence as set out hereunder.

2. That the sentences on counts 1, 2 and 3 imposed on 17 June 2003 be confirmed.

3. That the orders made that three months of the sentence on count 1 and six months of the sentence on count 3 be served cumulatively with the sentence imposed on count 2, be set aside.

4. The total effective sentence, therefore, is four years and six months' imprisonment on the present offences.

5. That three years of the sentence on count 2 be served cumulatively upon the sentence of three years and six months' imprisonment imposed by Redlich, J. on 12 March 2003.

6. That a new non-parole period of four years and six month's imprisonment be imposed, commencing on 12 March 2003.

7. The Court confirms the declaration made by Redlich, J. on 12 March 2003 that there are 583 days pre-sentence detention.

[1] The witness did not suggest that she knew him by that name on the night, but said that she knew his name was "Pat". I have used the name "Kane" merely for convenience when recounting the evidence of the witness.

[2] [1980] HCA 3; (1980) 143 C.L.R 108, at 118-9, 131.

[3] [1995] HCA 37; (1995) 183 C.L.R. 108

[4] (1981) 55 ALJR 23.

[5] [1972] VicRp 63; [1972] V.R. 560, at 561, per Smith, J.

[6] [1990] HCA 51; (1990) 171 C.L.R. 207, at 217.

[7] (1989) 18 NSWLR 74, at 75, 85.

[8] Upon complaint that a verdict is unreasonable or cannot be supported by the evidence the test is whether upon the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt: see M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493-4; See, too, MFA v The Queen [2002] HCA 53; (2002) 213 C.L.R 606, at 614-5 [25]-[26].

[9] [1985] HCA 29; (1985) 156 C.L.R. 473, at 506.

[10] At 506-7.

[11] [1972] VicRp 63; [1972] V.R. 560, at 561-2.

[12] [2004] VSCA 85; (2004) 8 V.R. 262, at 266-7 [12]-[16], per Ormiston, J.A. and at 274-5 [39]-[42], per Callaway, J.A.

[13] [1981] VicRp 61; [1981] V.R. 611.

[14] At 615.

[15] [1937] HCA 27; (1937) 57 C.L.R. 170 at 182.

[16] At 616.

[17] At 618.

[18] At 618.

[19] (1970) 55 Cr.App.Rep. 161 at 168-170.

[20] [1974] HCA 48; (1974) 131 C.L.R. 534 at 551, cited in Burchielli at 619.

[21] [1992] HCA 13; (1992) 173 C.L.R. 555 at 561.

[22] [2002] VSCA 70; (2002) 4 V.R. 314.