R v McKeon

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3079 FILE NUMBER(S) : LOWER COURT Latham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60057/04

STUDDERT J KIRBY J HISLOP J

Judgment 1 STUDDERT J: The appellant, Glen Peter McKeon, was convicted on a number of counts of aggravated armed robbery and of stealing motor vehicles. These convictions followed a number of trials. The appellant appeals against his convictions following two of these trials, namely those which commenced on 12 November 2002 and 25 November 2002. He also seeks leave to appeal against the severity of sentences imposed upon him. 2 It will, of course, be necessary in considering the appeals against conviction to consider the grounds of appeal as they relate to each trial discretely.

The first trial 3 The first trial concerning which the appellant appeals against his conviction commenced on 12 November 2002 and the indictment presented contained two charges:

(a) that with his co-accused, Morgan Paul Kain, he stole a motor vehicle on 21 December 2000;

(b) that with the same co-accused on the same date he did rob Maree Joy Barton of money the property of Westpac Banking Corporation whilst armed with a handgun. 4 On 25 November 2002 the jury found both accused guilty on both counts. 5 The prosecution case was that the appellant and his co-accused participated in an armed robbery at the Westpac Bank at Picton. Both men entered the bank wearing black balaclavas and the appellant was carrying a gun. He stayed at the counter whilst the co-offender jumped the counter and stole $9965. The two men left the scene using the stolen vehicle, the subject of the first count in the indictment. 6 The case against the appellant was based upon circumstantial evidence alone. One of the Crown witnesses selected the co-offender's photograph from photos shown some two months after the robbery, expressing the view that she was "I would say about eighty percent sure" that the photo was of the co-accused (T 63, 13 November 2002). However there was no identification of the appellant. 7 There were varying descriptions concerning the offender claimed to have been the appellant:

(i) Ms Barton, the bank officer first confronted, described him as wearing a black balaclava and dark clothes and as being five foot ten inches in height, thin, with a normal voice.

(ii) Ms Affleck, a second bank teller, described him as being about five foot six inches, wearing dark track pants.

(iii) A third bank officer, Ms Cameron, described him as a bit taller than the other man, slim to medium build, wearing a black T shirt with Asian writing on the back. This witness said that this man took off his balaclava as he ran out of the bank and the witness saw the left side of his face. He had a crew cut with flecks of grey in it, his chin came to a point and he was approximately thirty years of age.

(iv) Detective Thomas described the appellant at the time of his arrest in January 2002 as being about 180 centimetres, as being of slim to medium build, with blue-grey eyes, Caucasian, aged nearly thirty-seven years of age, having short brown hair. This was a description not dissimilar from that of the bank officer confronted at the counter, although she described the person confronting her as having eyes that were not light but dark in colour.

(v) Photographs of the appellant after his arrest and introduced into evidence (Exhibit L) depicted the appellant with very short cut hair and a chin matching that described by Ms Cameron.

(vi) Mr Watt-Bright was walking past the bank when the robbers ran out and he saw the robber who the Crown contended was the appellant take off his balaclava. He did not see his face but he said this person had a black multi-band radio with a little aerial.

(vii) The Crown also relied upon evidence that the appellant booked into the Mercure Hotel at Rosehill under a false name "R. Gibbs" on the day of the robbery, some two hours after it occurred. There was a deal of evidence linking the appellant to that false name: (a) he had used it weeks earlier speaking to a police officer, Constable Fawkner. There was no challenge to the evidence of this police officer that she became aware after 16 January 2001 that the appellant and Robert Gibbs were the same person (T 140, 14 November 2002); (b) surveillance videos kept by the Mercure Hotel afforded evidence as to the appellant's identity, although there was no video available for 21 December 2000; (c) on 21 December and on a number of occasions after that date telephone calls were made from the room that "R. Gibbs" booked into to the appellant's sister.

(viii) Evidence was given in the Crown case that on 27 December 2000 witnesses saw two men alight from a car in a carpark at Tweed Heads. Each person was carrying a dark coloured bag. The witness saw one of these people drop his bag behind the car and police were called. The bag was a dark backpack and it was found to contain a black balaclava with eye and mouth holes, a grey Nike T shirt, and a pair of black tracksuit pants with red, yellow, green and white bands on one leg. Two of the bank officers present at the robbery had noticed that the balaclavas were machine stitched around the eyes, and it was the Crown case that the balaclava found in the backpack, as well as the tracksuit pants found there, were identical with those worn by the robber who stood at the counter of the bank. The dark grey Nike T shirt was like one worn by the appellant at Wollongong on 6 December 2000. On that date he withdrew some money from a bank account in Wollongong and there were security camera photos taken of him which depicted him wearing a T shirt similar to the one found in the backpack. The T shirt had no collar, but a button at the neck with the Nike logo just below it.

(ix) The appellant's fingerprints were found on the vehicle from which the two men had been seen alighting before the backpack was dropped on the ground in the carpark at Tweed Heads. A thumbprint was found on the rear passenger door and there were prints of two of his fingers on the rear window on the driver's side of the door.

(x) Further evidence linking the appellant to the bag dropped in the carpark at Tweed Heads was a boarding pass for a Qantas flight from Coolangatta that same day (see (xii) below).

(xi) The appellant was arrested in a room at the Mercure Hotel, Rosehill on 16 January 2001, the co-accused being also present with his girlfriend. A pair of running shoes was found in the room and these shoes appeared to be identical to those worn by one of the robbers pictured in the bank security camera photographs. Also in the room police found a scanner not inconsistent with the object that Mr Watt-Bright had described.

(xii) Later on the day of the arrest of the appellant police searched premises used by the appellant's co-accused and found there a number of items linking the co-accused with the robbery. In addition to those items, the police found the boarding passes for 27 December 2000, one of which was in the appellant's name and the other of which was in the name "M. Kain". 8 The appellant gave no evidence at his trial and neither did his co-accused, although the co-accused's father gave evidence that on the day of the robbery or the next day he visited his son's unit, and he said on the occasion of that visit his son and his brother (to whose evidence I shall refer presently) were at the unit. 9 I turn from this outline to a consideration of the grounds of appeal referable to the first trial.

1. The trial judge erred in declining to discharge the jury when it became clear that prejudice to the appellant could not be cured by directions to the jury. 10 Before the trial began, Goldring DCJ had considered an application for separate trials for the appellant and his co-accused. That application was unsuccessful. This appeal is not an occasion to revisit that earlier decision; rather, the question now is whether the joint trial has resulted in some unfairness so as to cause a miscarriage of justice: see R v Privett [2001] NSWCCA 518, and in particular the judgment of Sully J at para 8. 11 During the trial there were six applications for the discharge of the jury and this ground of appeal calls for consideration of each of these applications.

(a) The first application This application was presented as an application that a separate trial was warranted. The basis of the application was that evidence admissible only against the co-accused and which had been given on the previous hearing day was extremely prejudicial to the appellant.

The evidence that prompted the application was evidence given by Detective Waterer. The detective had given evidence of a conversation with the co-accused's twin brother, Nathan Kain, on the date that witnesses had seen the dark bag dropped on the ground in the Tweed Heads carpark. The purpose of the evidence led from the police officer was to eliminate the twin brother as one of the men seen alighting from the car in the carpark. The police officer was able to describe the twin brother's appearance and attire. Other evidence given as to that brother's movements between the end of December and the date of the appellant's arrest went towards eliminating the twin brother from being in Sydney in that period, and hence as being responsible for the clothing and the screwdriver found at the search of the co-accused's unit on the day that the appellant was arrested.

Counsel for the co-accused elicited from the police officer in cross examination that the twin brother had a portable scanner.

Having considered the application for discharge of the jury, the presiding judge rejected it but gave the jury the following direction before the resumption of evidence on 18 November 2002 (T 244): "The Crown case is nearing completion. All I wanted to point out to you for present purposes is you will recall there was some evidence on Friday in relation to the person known as Nathan Kain and there's no secret about this, Nathan Kain, as you heard from Detective Waterer, is a twin of the accused Morgan Kain. There were some photographs admitted into evidence and there were some other references to his photograph being taken at Tweed Heads Police Station on 27 December and there was some evidence given in relation to the vehicle which has already been the subject of evidence at Tweed Heads and Nathan Kain's association with that vehicle, having keys in his pocket, having a receipt in relation to vehicle repairs. Could I just make it clear to you at this stage, ladies and gentlemen, because I'm conscious of the fact that when the trial is fragmented like this it may appear difficult at first to understand how all these pieces of the jigsaw puzzle fit in, but can I just make it clear at this stage that that evidence in relation to Nathan Kain was led by the Crown against the accused Morgan Kain for this reason and you'll appreciate why. To the extent that the Crown needs to exclude the possibility that the person who committed the offence on 21 December was Nathan Kain and not Morgan Kain, that's why there has been reference to Nathan Kain and his presence at Tweed Heads on 27 December. There'll be other submissions made to you in the course of addresses about that but I just want to make it clear at this stage that that evidence only relates to the accused Morgan Kain."

The above direction made it clear to the jury that the evidence which prompted the application was not available against the appellant but was only available for consideration in the case against the co-accused. It was directed only to eliminating Nathan Kain as one of the bank robbers. In my opinion, this first application was correctly refused.

This application appears to have been prompted by fingerprint evidence given by Detective Mobbs and Detective Foley and by evidence given by Detective Fryer, who was involved in the search of the Mercure Hotel room on 16 January 2001 and who later showed the photographs to the witness who gave the identification evidence directed at the co-accused.

Detective Fryer was cross examined about that identification process (T 187-188): "Q. When you undergo an identification procedure, in other words when you're showing a witness photographs and asking them to see whether they can pick anyone out or whether anyone looks like a person they may have seen on an earlier occasion, it's ideal isn't it for that procedure to be video recorded. Would that be fair to say? A. No, not really… Q. They used a video recorder for the searches didn't they? A. Yeah. Q. So you had them available, correct? A. Yeah. Q. There's no particular reason why one wasn't used is there? A. Well I probably shouldn't get into the reasoning."

The last response concerned trial counsel for the appellant, although it is not clear to me why this was so. The process of identification of the co-accused did not bear upon the appellant's case at all. It does not seem to me that there is anything in the passage above extracted which would have warranted the discharge of this jury.

The next passage of evidence relevant to this second application for discharge of the jury was in the fingerprint evidence of Detective Foley (T 264-265): "Q. Did you do a comparison with any other persons other than the accused Glen Peter McKeon? A. After this particular matter? Q. Yes? A. Yes. Q. Who was that? A. Morgan Kain. Nobody else that I'm aware of. Q. Have a look at this document. Does that relate to case number 716233? A. That's right, yes. Q. Was a comparison done with anyone else. A. Yes, those persons supplied on this document. Q. Who is that? A. I've got Glen McKeon, Morgan Kain and Nathan Kain."

The above sequence of questions and answers followed the introduction of evidence of the appellant's fingerprints taken from a travel magazine at the Mercure Hotel. Exception was taken to the response "After this particular matter" on the basis that the response invited the inference that the appellant was involved in some other offence or offences. It seems to me that that concern was unwarranted. The witness was involved in examining a number of articles for fingerprints and the travel magazine was but one article or matter examined and tested.

The passage extracted certainly did not call for the discharge of the jury.

The next concern related to evidence given in cross examination of Detective Mobbs at T 257. Counsel for the co-accused asked the following questions that prompted the following query by the trial judge: "MORRISON: Q. Ms Mobbs, you have a colleague by the name of Mr Hamilton, correct? A. That is correct. Q. Who is a fingerprint expert as well? A. That is correct. Q. Have you ever had a different opinion to him? HER HONOUR: I'm sorry? What's the relevance-- MORISON: Q. Have you ever had a different opinion to him in a fingerprint analysis? HER HONOUR: In this trial?"

It was not ultimately suggested that Detective Mobbs had a different opinion from Detective Hamilton on any issue that bore upon the trial, but trial counsel for the appellant submitted that her Honour's last question in the above extract invited the inference that there was some other trial involving the same accused. Once again, I consider this concern to be unwarranted. The question directed to whether the witness had a different opinion to Detective Hamilton was extremely general: "Have you ever had a different opinion to him?" Her Honour's question could only be taken in context as querying whether the question was intended to elicit whether the witness had differed from Detective Hamilton in some other case or in respect of the interpretation of fingerprints in this case. There was no reason for the jury to infer that any query about another case was directed to another case involving the appellant.

The next matter concerned questioning of Detective Foley (T 263): "Q. Officer, have you made a statement in relation to this matter? A. I have. Q. Do you have that with you? A. I do. For which? Q. In relation to the travel magazine? A. I tendered that one before. Q. Officer is it the case on 30 January 2001 an exhibit was received at the Special Examination Section at Prospect? A. That's correct. Q. Have a look at this, and was that exhibit a travel magazine? A. Yes it was. Q. And was it entered into an exhibit book? A. It was. Q. And was it then examined for fingerprints and during this examination fingerprints were developed and photographed is that the case? A. That's correct."

The response: "I tendered that one before", it was submitted, invited the conclusion that the appellant had been involved in some earlier proceedings at which the travel magazine had been tendered. It is clear from her Honour's exchange with counsel about this (T 273), that her Honour, who was doubtless alert to the atmosphere at the trial, did not think that the response of the witness invited the conclusion for which counsel contended, and I do not consider that the response was prejudicial to the appellant. I certainly do not think that the response warranted the drastic step of a discharge of the jury. Her Honour did not rule formally upon the above applications but, in my opinion, none of them viewed individually or cumulatively called for the discharge of the jury.

(c) The third application A bank deposit slip dated 22 December 2001 evidenced that the co-accused deposited $250 in cash into his twin brother's account at the Cabramatta branch of the National Bank. The objection to the introduction of this evidence was not based upon relevance, nor was the subsequent application for discharge, but trial counsel for the appellant submitted that the evidence was prejudicial because "Cabramatta was the drug capital of New South Wales" (T 297).

In my opinion, her Honour was correct to reject this application. Acting responsibly, the jury could not possibly draw any inference adverse to the appellant simply because he made this deposit.

(d) The fourth application This concerned evidence given by Detective Thomas, the officer in charge of the relevant investigations. Evidence was elicited to the effect that the police were conducting inquiries as at 11 January 2001 that extended to the Sebel Hotel (T 307). On that date Detective Thomas asked other police officers to ascertain whether there were security camera videotapes for either or both the Mercure Hotel and the Sebel as at that time. Previously evidence had been given that the co-accused had stayed at the Sebel between 11 and 12 December 2000. Counsel submitted that introduction of evidence of inquiries as at 11 January 2001 was prejudicial to the appellant. That, of course, was at a date after the commission of the crime being investigated. In my opinion, the issue to which exception was here taken afforded no justification for discharging the jury.

(e) The fifth application This concerned evidence given by the co-accused's twin brother, Nathan Kain. The Crown called this brother to eliminate him as a person involved in the commission of the robbery. He was cross examined by counsel for the appellant's co-accused (T 348): "Q. In relation to 21 December, is it possible you did rob that bank? HER HONOUR: Did you say the 27th or the 21st? MORRISON: Q. 21st. I'm sorry I meant the 21st. HER HONOUR: I think you might have given the wrong date. MORRISON: I'm sorry your Honour, I mean 21 December…Q. I suggest to you, Nathan Kain, that you did rob the bank at Picton on 21 December…" It was submitted that the appellant was prejudiced because the jury was invited to infer that there had been a robbery on 27 December. I do not consider that the exchange would have led the jury to such a conclusion or that it called for the discharge of the jury. What the exchange did was to correctly identify 21 December as being the date to which the attention of the witness was being directed.

The sixth application again concerned the witness Nathan Kain. Pursuant to leave granted, the Crown cross examined the witness. The witness said he was in Sydney in December 2000 to obtain some drugs. In the course of his evidence the witness responded to a question asked by the trial judge in the following passage (T 390-391): "Q. All right. But Mr Kain the point about it is this-- A. But it's the same things you know. Q. I know Mr Kain-- A. I don't want to hear her. I want to go to my cell. Q. Mr Kain just a minute. Just a minute. Can you please just listen to me because this is the point that is being put to you-- A. But she knows I'm a bank robber, she called me." Counsel then made the sixth application that the jury be discharged. This application was made upon the basis that the witness was an admitted bank robber and drug user and that he was associated with the appellant. Hence the appellant was prejudiced, it was argued. At the commencement of his evidence the witness said that he knew the appellant but he did not say anywhere in his evidence that he was associated with the appellant in any criminal activity. The Crown has correctly pointed out that the jury rejected the evidence that the witness gave as to his possible involvement in the robbery on 21 December 2000. This application for the discharge of the jury prompted her Honour to give this direction (T 396): "There's one further matter that I should raise with you and again, I only do this by way of ensuring, as I said to you at the beginning of the trial, that the accused, both of the accused receive a fair impartial and objective assessment of the Crown case against them on your part and I know that you've been very attentive and I accept without reservation that you understand the importance of that duty. In relation to the witness who is giving evidence now, Mr Nathan Kain, the issue in this trial has to do with Mr Morgan Kain and Mr McKeon. It has nothing whatsoever to do with what this witness may have done in his past. Now, you may not like people who take heroin and you may not like the sort of lifestyle that Mr Kain appears to be indicating to you that he's led. That has absolutely nothing to do with whether or not at the end of the day the Crown has proved beyond reasonable doubt that it was these two accused who were in the Westpac Bank at Picton on 21 December. Whatever you think of Mr Nathan Kain, whatever you make of his evidence is a matter for you but you must not, you must not form any adverse inference against either of the accused based on some dislike that you may have in relation to Mr Nathan Kain. Now, I just wanted to give you that caution, as I said, I know you understand the importance of being impartially and objective." In my opinion, the above direction was appropriate and adequate to address counsel's concern, and her Honour was correct to refuse the application of counsel. 12 The crimes charged, and in particular the bank robbery, amounted to a joint criminal enterprise involving two offenders. The witnesses in the Crown case gave evidence involving both offenders. It seems to me that it was in the interests of justice in avoiding the risk of inconsistent verdicts that the appellant and his co-accused be tried together on both counts in the indictment. Further, it seems to me, that it was in the interests of the accused and of justice that the various witnesses be examined and cross examined before the same tribunal of fact charged with the assessment of the reliability of those witnesses. The importance of these considerations was very recently addressed by this court, differently constituted, in Skaf & Ors [2004] NSWCCA 74: see the joint judgment of the court at [112]. 13 The court must however always be alert to guard against the risk of positive injustice that may arise in the circumstances of a particular case where there are co-accused: see Middis (unreported, Hunt J, 27 March 1991) where his Honour addressed the relevant principles. Nevertheless, it is ordinarily desirable that those concerned in a particular crime should be dealt with at the one trial: see Patsalis (1999) 107 A Crim R 432 and the remarks of Kirby J at 434. 14 In my opinion, it was entirely appropriate that the appellant and his co-accused were tried together, and nothing occurred during the course of the trial to change this. I consider each of the applications for the discharge of the jury was correctly refused and there was nothing in the way the evidence emerged at this trial which created a risk that the trial might miscarry. 15 Accordingly, I do not consider that ground 1 has been established.

Ground 2: The verdict in the trial was unreasonable - incapable of being supported by the evidence 16 I earlier reviewed the evidence in the Crown case. 17 So far as the evidence of description given by those who saw the armed offender in the bank and as he left is concerned, there were discrepancies in the descriptions of that armed offender. In particular, counsel for the appellant has drawn attention to discrepancies in the evidence as to the colour of the appellant's eyes. On the other hand, Ms Cameron gave a description of observation which was anything but inconsistent with the evidence of the appellant's appearance at the time when, according to Ms Cameron, he had removed the balaclava. 18 The timing of the appellant's arrival at the hotel at Rosehill when he had the booking under a false name fitted in with the travelling time from Picton, where the armed robbery had been committed. 19 The evidence reviewed linked the appellant to the backpack which was dropped in the carpark at Tweed Heads and the jury could reasonably link the content of that bag to him. The jury could reasonably find that the Nike T shirt was his. The jury could also reasonably conclude that the distinctive tracksuit pants found in it were the tracksuit pants captured by the bank video film. The jury could also conclude that the balaclava in the pack was entirely consistent with the balaclava worn by the same offender. Then there was the evidence that at the time of arrest the appellant had in his room a pair of running shoes matching the distinctive shoes worn by one of the offenders, and under the bed clothing there was detected the scanner which matched what the witness Mr Watt-Bright had seen being carried outside the bank. 20 In addition there was a considerable body of evidence which placed the appellant and the co-accused in each other's presence between 21 December 2000 and 16 January 2001. 21 It seems to me that when one has regard to all the evidence in the Crown case, it was open for the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant, and in my opinion ground 2 fails.

The second trial 22 The appellant and his co-accused stood trial, each having pleaded not guilty to counts contained in an indictment:

(i) charging the stealing of a motor vehicle UKW 218 on 6 December 2000;

(ii) charging robbery whilst armed with a dangerous weapon, namely a handgun, of the property of City Coast Credit Union. 23 Both men were found guilty by the jury of both offences. 24 The Crown case was that the motor vehicle used in the robbery as a getaway vehicle was stolen from the Carlingford Court shopping centre on 5 December 2001. 25 On the following day a person armed with a gun robbed the City Coast Credit Union in the Westfield Shopping Centre at Warrawong of $7639. Whilst that robbery was taking place, a second man was keeping watch outside. The men joined up and left the scene in the stolen car. It was the Crown case, accepted by the jury, that the appellant was the gunman and the co-accused was the man who kept watch. 26 Ms Perrine was a teller on duty at the credit union premises at about 3.45 pm on 6 December. Her evidence was that she was approached by a man dressed in a baseball cap and wearing dark glasses. He was waving what appeared to be a gun. He told her it was a robbery, threw a plastic bag to her and told her to fill it with money. She complied with this demand, as did other tellers nearby. The gun was described as dull silver and the tip was orange. 27 A second teller also saw the gun. Ms Harris described it as silver, but she only saw it briefly as it was waved about. Ms Harris described the offender as about six feet tall or more, with short dark hair, and a normal voice with an Australian accent. 28 Ms Suthers, who was a supervisor at the counter, described the offender as between twenty and thirty and as having lightish skin, thin to medium build and being roughly five foot ten tall. She said he had "a thin face, withdrawn type face". 29 Detective Thomas gave evidence that the appellant was about 180 centimetres tall and thirty-seven years of age. 30 There were security cameras at the credit union premises and a number of still photographs of the offender were taken. In addition there was a video which showed the offender, on the Crown case the appellant, joining up with the co-offender after the robbery. 31 Ms Popovski was in the shopping centre during her late lunch break and noticed a man who she identified from photographs presented by the police on 20 February 2002 as the co-offender, Morgan Kain. Ms Popovski expressed herself as being "ninety-eight percent certain" of that identification. Ms Popovski said her attention was drawn to the co-offender because he was intently watching a security guard who walked past the credit union premises. She observed a second man joining Kain and that second man had a baseball cap on and a long sleeved shirt. He was hunched over holding a plastic bag to his stomach and Ms Popovski heard Kain say to him "Hurry up, the security guard is just down there". Ms Popovski followed them and saw them enter a motor vehicle and noted the registration number, UKW 218. That was the number of the vehicle which was stolen the day before from Carlingford Court shopping centre. Ms Popovski ran to a security guard and gave him the number. 32 Evidence was led by the Crown that one and a half hours before the robbery the appellant, in company with a second man, withdrew money from the appellant's account at the Commonwealth Bank, Wollongong. Without objection the Crown led from the bank officer that she had dealt with the appellant. The security camera at the bank took two black and white photographs and there was no dispute but that these were photographs of the appellant. 33 The Commonwealth Bank officer who dealt with the appellant gave a description of Kain and later selected his photograph from a number of pictures provided by the police as being the appellant's companion at the time the money was withdrawn. 34 The Crown introduced into evidence the Commonwealth Bank photos and photos from the credit union robbery. The two sets of photos invited the conclusion that the body shape and size of the robber matched the body shape and size of the appellant. The credit union photo showed part of the left running shoe being worn by the robber and that appears to be similar to the distinctive running shoes the appellant was wearing when he attended at the Commonwealth Bank. Whilst the robber is shown wearing a sloppy joe at the credit union premises, his photo there taken shows part of a shirt above the top of it, and what is protruding appears similar to the distinctive T shirt the appellant was wearing in the photo taken at the Commonwealth Bank. 35 The Crown also led evidence as to the dropping of the bag at the carpark at Tweed Heads on 27 December 2000. (The evidence as to this incident did not emerge in precisely the same way as it had done at the first trial.) Evidence was led that the fingerprints of both offenders were found in the car from which the two men were seen alighting and evidence was also led as to the subsequent finding of the Qantas boarding passes in the names of the appellant and the co-offender (referred to earlier at para 7(xii)). Further evidence was given about the contents of the dark bag. One of the items in the bag was a replica pistol and another item was a Nike T shirt identical to the one depicted in the Commonwealth Bank photographs. The replica pistol was very similar to that weapon which was described by Ms Perrine and Ms Harris and it had orange at the tip of the barrel. 36 Because Ms Popovski's evidence in cross examination raised the possibility that in identifying the co-accused the witness might have been mistaking him for the co-accused's twin brother, a chemist, who is the manager of a pharmacy at Mermaid Beach, was called to prove the dates upon which she administered a prescription drug to the twin brother and these included 20, 21, 22, 23, 24 November 2000. The witness said that the patient was required to attend personally to collect that drug. 37 Neither the appellant nor the co-accused gave evidence at the trial. 38 Against this background, I turn to consider the grounds of appeal.

Ground 1: The trial judge erred in declining to discharge the jury when it became clear prejudice to the appellant could not be cured by directions to the jury 39 During the course of the trial there were two unsuccessful applications by counsel for the appellant for the discharge of the jury.

(a) The first application This application followed the introduction of evidence as to what was observed to have occurred in the carpark at Tweed Heads on 27 December 2000. The complaint was that in the way the evidence emerged it appeared that those who left the car were fleeing from the police. Mr Daniels gave evidence (T 172-173): "Q. What did you see happen when it was driving down the ramp? A. The car slowed, the doors came open and two youths jumped out. One went from the passenger's side left, the one on the driver's side ran around the front of the car and the car went around to the left. Q. Did you see anyone still remaining in the car after the two males that you've described got-- A. Yes, the driver. Q. Where was he? A. Driving. Q. Where did you see the car being driven to - where did it go? A. Just past the ramp on the down there's - he turned left. Q. He turned left? A. Yes. Q. Did you continue watching the Commodore, did you see where it drove after that. A. For about maybe 20 or 30 metres, that was it, the traffic started to move because the police were coming in . Q. Did you see the car after that or had you gone? A. No. We had driven up the ramp." (Emphasis added) Counsel for the co-accused then cross examined the witness: "Q. You saw both the back doors open, is that right? A. Well, yes. Q. This is in your statement of 27 December? A. Yes. Q. It's the day that it happened, so we'll go back to your statement? A. Yes. Q. Rather than you try and remember back to that day, wouldn't we - your accuracy? A. Yes. Q. You said that the - it slowed down the ramp and both the back doors flew open and two guys jumped out, is that right? A. Yes. Q. You only had the car on observation for a matter of seconds I take it, is that right? A. About 30 seconds. Q. There was another person in the car or at least one other person, is that right? A. Yes, the driver." Then (at T 174): "Q. The two people you saw get out of the car had short dark or brown coloured hair, correct? A. Yes. Q. Do you know where the car came to a halt? A. No. At no time when I'd seen it did it actually come to a halt, it was still actually moving, very slowly but-- Q. You saw one person running to the carpark, is that right? A. Two people running to into the car park. Q. Two people ran into the car park? A. Yes. Q. You didn't see anyone drop anything, did you? A. No." Mrs Daniels gave evidence (T 175-176): "Q. Now I just want to clarify something. As you saw the fawny coloured Commodore come down the roundabout at the top of the ramp and then come down the ramp, how many people did there appear to be in the car? A. Three. Q. And did you watch it as it came down the ramp? A. It was coming very fast down the ramp and so yes I looked up because of the noise from the travelling. Q. And what did you see happen as it was coming down the ramp? A. It was speeding down the ramp and it slowed down, it didn't stop, but it slowed down and the rear driver's side door and the front passenger doors opened and the two guys jumped out. Q. Was the car stopped or not? A. No it was still moving as they were getting out. Q. Did you see the car continue on? A. It then - there was a turn just in front of it and it screeched around the corner and away from us." It was submitted at the trial that the evidence above reviewed invited the inference that the passengers in the car were fleeing from the police. Even if that inference was to be drawn, it is important to bear in mind the significance of the evidence concerning the men in the car. It was to link the appellant to the contents of the dark bag and that link was sought and was relevant only to linking the appellant to the crimes charged. It seems to me that the evidence of Mr and Mrs Daniels went nowhere as against the appellant unless the jury found that it was the appellant or his companion that dropped the bag. Neither Mr Daniels nor his wife saw any bag dropped, although each of those who left the car was observed to be carrying a backpack or bag. It was another witness, Ms Brown, who saw one of the men drop his backpack as the two men were running off. The answer which Mr Daniels gave concerning the police was not directly responsive to the question asked by the Crown. It added nothing to the prosecution case but it does not seem to me that the introduction of this evidence involved any risk of the trial miscarrying. In my opinion, the trial judge was correct to refuse counsel's application. Her Honour gave a direction to the jury which is pertinent and to which I shall refer when considering the second application for discharge.

Detective Waterer gave evidence that he saw the co-accused's twin brother in front of the Tweed Shopping Centre on 27 December 2000 (T 213). Her Honour interrupted the cross examination by counsel for the co-accused at T 214: "Q. Perhaps detective, it seems to me that the question, I don't know because Mr Morison doesn't want to enlighten me but it seems to me whether the question is whether or not Nathan Kain - the description given by the witnesses that you're aware of is capable of fitting your understanding of the appearance of Nathan Kain as at 27 December? A. Yes. I might be able to clarify it, the description given over the police radio was a general description and the three were classed as similar in appearance." It was submitted by counsel for the appellant that the evidence from Detective Waterer above reviewed added to the mischief occasioned by the evidence of Mr and Mrs Daniels. The evidence suggested that the vehicle from which the two men alighted was a wanted vehicle, that its occupants were people whose description was given over the police radio and that one of the them was a person whose last address was on the police computer. This was prejudicial to the appellant. Her Honour refused to discharge the jury, but in the course of the summing up gave the jury instruction as to how the evidence of the carpark incident at Tweed Heads should be regarded (SU 16): "Let me just say something about this incident at Tweed Heads which is a category of evidence referred to by the Crown and both counsel on behalf of the accused in the course of their addresses. I just want to make it clear that you cannot use evidence of the fact that the police were said to have been in attendance some time shortly after that incident at Tweed Heads in order to reason that either Mr McKeon or Mr Morgan Kain must be guilty of this offence. That would be an impermissible form of reasoning and the Crown does not rely upon it in that way. The Crown only relies upon the evidence in relation to Tweed Heads simply to attempt to connect the contents of the backpack with Mr McKeon and in order to demonstrate that Mr Morgan Kain was in Mr McKeon's company on 27 December. That is the purpose of that evidence and the only purpose of that evidence on the Crown case. So let me just return, if you were satisfied beyond reasonable doubt that Mr McKeon was one of the two persons who came from that vehicle, then but only then could you use the evidence of the contents of the backpack towards proof of the charge of armed robbery against Mr McKeon. So I have just dealt in some compartmentalised way with the evidence in relation to Tweed Heads." Later in the summing up the trial judge dealt with the case against the co-accused and in doing so returned to the evidence of the incident in the carpark (SU 50-51): "Even if you were to be satisfied beyond reasonable doubt that he was one of the occupants of the car on 27 December, whatever knowledge he may have had about the presence of the replica pistol on that day - and I am not suggesting there is any evidence of knowledge on that day - but whatever knowledge he may have had about the presence of the replica pistol on that day, that says nothing about whether he knew of its intended use on 6 December. You see, it does not logically follow that, even if he were to know about the replica pistol on 27 December, that that says anything about his state of mind on 6 December." The above directions were appropriate to alert the jury to the use which could be made of the evidence concerning what happened in the carpark. There is no reason to conclude that the jury would have done other than to heed her Honour's directions. In written submissions filed for the appellant it was submitted that the jury could have treated the evidence as to what occurred in the carpark as evidence of flight and the jury should have been given some direction on this issue. It does not appear that the notion of flight or guilty mind was any part of the Crown case and counsel for the appellant at the trial sought no direction about the carpark evidence after the jury was given the directions in point which I have set out above. It seems to me that there was no occasion for the trial judge to give any directions as to "flight". Rule 4 applies to the complaint about failure to direct as to flight, and in the circumstances of this case where flight formed no part of the Crown case, I would not give leave to the appellant to rely upon this issue here. 40 In my opinion Ground 1 has not been established. There was no necessity for the jury to be discharged during the course of this trial.

Ground 2: The verdict was unreasonable and incapable of being supported by the evidence 41 Earlier I reviewed the evidence in the Crown case. 42 There was positive evidence placing the appellant at the Commonwealth Bank at Wollongong with the co-accused approximately one and a half hours before the robbery at Warrawong. I referred earlier (at para 34) to the similarities in the appellant's appearance in the photos taken there and the appearance of the robber in the photos taken at the credit union. 43 Then there was the evidence linking the appellant to the bag dropped in the carpark at Tweed Heads, as well as to the content of that bag, which of course included the Nike T shirt, and the replica pistol matching the description of the weapon observed by the tellers at the credit union premises. 44 Consideration of the circumstantial evidence in this case leads me to conclude that it was open to the jury to be satisfied beyond reasonable doubt as to the appellant's involvement in the robbery of the credit union. 45 For the above reasons I propose that the appeals against conviction should be dismissed.

Application for leave to appeal against sentences 46 The appellant was sentenced on 20 June 2003 not only following upon the convictions the subject of challenge in this Court but also in relation to a significant number of other offences. The appellant seeks leave to appeal against all the sentences then imposed. 47 On 20 June 2003 the sentencing judge had the task of sentencing the appellant for seven counts of aggravated armed robbery, five offences of stealing motor vehicles and one offence of robbery. In addition, there was a further aggravated armed robbery charge and a robbery charge to be taken into account on a Form 1. 48 The total proceeds of these crimes was of the order of $93,000, of which $21,000 was recovered. 49 The aggravated armed robbery offences each carry a maximum penalty of twenty-five years imprisonment. The robbery charge carries a maximum penalty of fourteen years imprisonment and the offences of stealing a motor vehicle each carries a maximum penalty of five years imprisonment (ss 97(2), 94 and 154A of the Crimes Act). 50 All the offences were committed between 25 September 2000 and 11 January 2001. 51 On 25 September 2000 the appellant robbed credit union premises at Figtree. Several weeks later he robbed the same credit union again. 52 There then followed the aggravated armed robbery at Warrawong in which a stolen motor vehicle was used for the purposes of escape. The convictions for these two offences were the subject of one of the appeals earlier considered (the second trial). 53 Then, on 11 December 2000, there was a further armed robbery with an offensive weapon, with an associated offence of stealing a motor vehicle. That armed robbery was at Camden at the office of the Macarthur Credit Union. 54 On 21 December 2000 the appellant committed an aggravated armed robbery at the Picton branch of Westpac. Associated with this was the offence of stealing a motor vehicle. These two offences led to convictions at the first of the trials considered earlier in this judgment. 55 On 27 December 2000 the appellant committed an armed robbery with an offensive weapon at credit union offices at Kingscliff. Associated with that offence was the theft of a motor vehicle. 56 On 8 January 2001 the appellant committed an armed robbery with an offensive weapon at the Colonial State Bank at Nowra. 57 Three days later he committed an armed robbery with an offensive weapon at the National Bank at Katoomba. Associated with that offence was the theft of a motor vehicle. 58 When the judge came to pass sentence in respect of the crimes committed on 11 January 2001, her Honour took account of two matters on a Form 1. Shortly the facts in relation to those matters were:

(a) on 18 December 2000 the appellant robbed the Colonial State Bank at Camden of $3300 approximately;

(b) on 27 December 2000 at Tweed Heads the appellant robbed the Colonial State Bank of $407 whilst armed with a handgun. 59 It is to be noted that not only was the appellant armed with a gun when the crime was committed on 11 January 2001, but on that occasion he discharged the weapon he was holding into the carpet in the banking chamber. Her Honour observed in relation to the other aggravated armed robbery offences that they each involved the presentation of a firearm or a replica firearm to counter staff, either by producing the weapon itself or by revealing part of the weapon concealed on the appellant's person. 60 Five of the aggravated armed robbery offences were committed in conjunction with the theft of motor vehicles used to travel to and from the scenes of the armed robbery offences. 61 On 21 April 1995 the appellant had been sentenced to a head sentence of seven years imprisonment for armed robbery. That sentence did not expire until 16 May 2001, so all the offences for which her Honour was called upon to sentence this appellant were committed during the currency of that sentence. The appellant was in fact on parole in the period relevant to the commission of this spate of crimes. His parole was revoked on 19 October 2000 but the appellant was not arrested until 16 January 2001. Custody referable to the 1995 sentences did not expire until 17 September 2001 and her Honour therefore dated the earliest of the sentences imposed in June 2003 from 17 September 2001, from which time the appellant had remained in custody. 62 Her Honour categorised the criminality of the appellant as represented by the commission of these offences as being "of a very high order". Her Honour correctly observed that that was "something of an understatement" (ROS 13). 63 Four of the armed robbery offences and three of the steal motor vehicle offences were the subject of guilty verdicts after trial. Three aggravated armed robberies, one robbery and two steal motor vehicle offences were the subject of an aborted trial after which the prisoner entered pleas of guilty. In these circumstances her Honour observed, again correctly, that very little utilitarian value attached to the pleas that were entered, although her Honour recognised that the witnesses were not required to give evidence at a retrial following the aborted trial. Her Honour expressly took into account the pleas as reflecting inherent contrition. 64 The sentencing judge found that although the appellant was adopted he had a reasonably supportive family upbringing. After his adoptive father left the family home, the appellant lived with his adoptive mother, his sister and his grandmother. Her Honour found that his offending has arisen out of the appellant's abuse of illicit drugs, including heroin. There was one attempt at rehabilitation in the early '90s and a later attempt in 1999. 65 The applicant gave evidence before the sentencing judge who found him intelligent and reasonably articulate, and in some ways refreshingly honest. He did not rate his prospects of rehabilitation highly. Her Honour appears to have rated those prospects as "exceedingly dim", subject only to the appellant having reached a stage of life where offenders begin to tire of their criminal lifestyle. 66 Dr Westmore assessed the appellant on 5 May 2003 and her Honour had the benefit of the doctor's report and referred to it in her sentencing remarks, observing that the appellant's evidence "largely confirmed the content of the report". The doctor noted the appellant's history of drug abuse extending back to his teenage years. Dr Westmore wrote in part: "Despite the man's long history of criminal behaviour, I think there are some potentially positive aspects about him. He is I believe extremely bright, he has demonstrated a capacity to hold employment and hold a relationship. He finds it psychologically very stressful however when leading a conservative life in the community. This issue, along with other issues arising from some childhood matters, do need to be addressed with this man. His perception that he is no longer fitting into the prison population is probably a true and realistic perception. It may be that this is some early evidence of this man's personality is maturing and developing, something that occurs in many repeat offenders as they grow older. If he can be assisted with this maturation process and provided with a lot of assistance on his return to the community, then he will certainly have a better prognosis than if he does not receive such assistance. In the past his motivation for change is also starting to develop in this man. Obviously, with his background history, his prognosis at this time does need to be considered in a careful and cautious fashion. He needs extended psychological counselling and counselling about his drug abuse. He does have some psychological mindedness however and I note his ability to describe very well the stress he experienced while living in the community, the positive association he has made between stress and heroin use and his own recognition of the repeating cycle his life has become. Again, these are positive features as they suggest some increasing insight in this man." 67 The sentences imposed were as follows:

(i) for the offence committed at the City Coast Credit Union at Figtree on 25 September 2000, her Honour imposed a sentence of seven years imprisonment to date from 17 September 2001, and fixed a non parole period of five years to expire 16 September 2006;

(ii) for the offence committed at Figtree on 19 October 2000, her Honour imposed a fixed term sentence of five years imprisonment, again to date from 17 September 2001;

(iii) for the aggravated armed robbery offence committed at Warrawong on 6 December 2000, her Honour imposed a sentence of eight years imprisonment, again to date from 17 September 2001, and fixed a non parole period of five years. For the associated steal motor vehicle offence, a sentence of two years to date from 17 September 2001 was imposed;

(iv) for the aggravated armed robbery offence committed at Camden on 11 December 2000, her Honour sentenced the appellant to nine years imprisonment to date from 17 September 2001. A non parole period of six years, expiring on 16 September 2007, was fixed. For the associated steal motor vehicle, her Honour imposed a two year sentence to commence on 17 September 2001;

(v) for the aggravated armed robbery offence committed at Picton on 21 December 2000, her Honour imposed a sentence of ten years imprisonment, again to date from 17 September 2001. A non parole period of six years was set to expire on 16 September 2007. For the associated steal motor vehicle offence, the appellant was sentenced to three years imprisonment to date from 17 September 2001;

(vi) for the aggravated armed robbery offence committed at Kingscliff on 27 December 2000, her Honour imposed a sentence of ten years imprisonment to date from 17 September 2007. A non parole period of six years was set to expire on 16 September 2013. For the associated steal motor vehicle offence, a sentence of three years imprisonment was imposed to date from 17 September 2007;

(vii) for the aggravated armed robbery offence committed at Nowra on 8 January 2001, her Honour imposed a head sentence of twelve years imprisonment to date from 17 September 2007 and fixed a non parole period of eight years to date from 17 September 2007;

(viii) for the offence committed at Katoomba on 11 January 2001, and taking into account the offences on the Form 1, her Honour imposed a sentence of fifteen years imprisonment to date from 17 September 2010 and to expire on 16 September 2025. Her Honour fixed a non parole period of six years expiring on 16 September 2016. For the associated steal motor vehicle offence, her Honour imposed a term of imprisonment of three years to date from 17 September 2010. 68 In aggregate therefore her Honour sentenced the appellant to twenty four years imprisonment with a non parole period of fifteen years. Her Honour imposed concurrent sentences for certain of the offences, but then for the offences committed at Kingscliff and Nowra sentences were imposed which were partly cumulative on the earlier sentences. Then for the offence at Katoomba, being the last offence chronologically, her Honour took into account the offences on the Form 1 and imposed another sentence which was partly cumulative on those sentences imposed for the Kingscliff and Nowra offences. 69 Mr Terracini informed the Court that the appellant is presently serving his sentences in maximum security conditions at Goulburn prison and hence the conditions of his imprisonment are especially burdensome. The appellant has had to endure these conditions for some two years and his future in terms of reclassification is uncertain. 70 The circumstances of the appellant's imprisonment can, of course, only be taken into account in this Court in the event that the Court first determines that there is occasion for intervention. 71 In written submissions it was contended that the sentencing judge was silent on the issue of special circumstances and, inferentially, that there was in consequence error in the structure of the sentences. 72 I do not accept this submission. In imposing a non parole period of six years in respect of the sentence of fifteen years, her Honour plainly determined that there were special circumstances. Indeed, her Honour made it clear in her sentencing remarks that the sentence imposed for the Katoomba offence was deliberately structured in the manner in which it was because of the necessity, as her Honour perceived it to exist, to partially accumulate sentences. 73 The sentences have been so structured that ultimately the appellant will have a period during which he is eligible for release on parole for a term of nine years. To my mind, putting aside for the moment the length of the head sentence, the appellant could have no justifiable ground for complaint about the manner in which that last sentence has been structured, nor indeed about the relationship of non parole period to parole period overall. 74 I find no error of principle or of fact in the sentencing remarks of this experienced judge. The real issue, as I see it, is whether the sentences imposed are manifestly excessive having regard to the appellant's total criminality. 75 It was pointed out in written submissions that the sentence of fifteen years imprisonment for the Katoomba offence was well outside the sentencing guidelines in R v Henry (1999) 46 NSWLR 346. However the appellant's case is not in the category of case contemplated in Henry. The appellant is not a young offender with little criminal history. He was nearly forty years of age when sentenced and he did not present with no or little criminal history. On the contrary he had a lengthy criminal history and all the offences for which he had to be sentenced were committed when he was on parole for armed robbery. The offences were committed with a degree of planning and in many of them the appellant had participated in the theft of a motor vehicle to be used to travel to and from the scene of the crime. The amounts taken were not small. In most cases there was absent a plea of guilty. 76 Hence the facts of this case take it well outside the guideline judgment in Henry. Counsel have been unable to refer the Court to any cases similar to the present case where an offender had to be sentenced for so many armed robberies where there was absent pleas of guilty. Moreover, there is the serious matter of aggravation that all these offences were committed whilst the appellant was on parole. 77 In the course of submissions, the Court has been referred to Bavardra (2000) 115 A Crim R 152; Lemene (2001) 118 A Crim R 131; and Itamua [2000] NSWCCA 502. For my part, I do not find that I am assisted by those cases where the features were very different from those here present. 78 In May this year an appeal by the appellant's co-offender in respect of the sentences her Honour imposed upon him for the Picton and Warrawong offences (and the associated steal motor vehicle offences) was dismissed (R v Kain [2004] NSWCCA 143). For the Picton armed robbery, Kain was sentenced to ten years imprisonment with a non parole period of six years; for the Warrawong offences, Kain was sentenced to seven years imprisonment with a non parole period of five years. The sentence for the Picton armed robbery offence was partially accumulated, so that the effective term of imprisonment imposed upon Kain was twelve years, with a non parole period of eight years. Her Honour took into account on a Form 1 the further aggravated armed robbery at Kingscliff on 27 December 2000. One of the grounds of appeal raised in Kain's appeal was lack of parity with the sentences imposed upon this appellant for the Picton and Warrawong offences, in respect of which offences it is to be observed that the present appellant received concurrent sentences. 79 The Court of Criminal Appeal in Kain rejected the lack of parity submission, as to which Levine J, with whose judgment the other members of the court agreed, said (at para 80): "In relation to the complaint about the lack of parity with the co-offender, Mr McKeon, I would have thought that the short answer to that is that his co-offender received a sentence of 24 years with a non-parole period of 15 years. In this regard I am not persuaded of any necessity to go behind the totality principle clearly applied by her Honour in dealing with the person who had committed far more armed robberies than the present one. I can see no sensible way of isolating from the greater number of crimes for which the co-offender was sentenced the one committed in common with the applicant." 80 To my mind, error in her Honour's approach to the totality principle in sentencing the present appellant has not been shown. 81 The overall effect of the sentences set by her Honour was to impose very stern punishment indeed upon the appellant. However, aggravated armed robbery is to be regarded as a most serious offence as the maximum penalty set by the legislature for this category of offence makes plain. Her Honour had a most difficult sentencing task and ultimately I am not persuaded that there was error in the execution of that task having regard to the number and gravity of the offences for which the appellant was to be sentenced. 82 I have come to the conclusion therefore that whilst leave to appeal against the sentences imposed should be granted, the appeal should be dismissed.

Proposed orders 83 1. That the appeals against conviction should be dismissed.

2. That leave to appeal against the sentences imposed should be granted, but that the appeals should be dismissed. 84 KIRBY J: I agree with Studdert J. 85 HISLOP J: I agree with Studdert J **********

Last Modified: 07/12/2004 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.