These grounds relate to the admission into evidence and use made of a security camera photograph taken at the scene of the Unanderra robbery. Three matters of complaint are raised. They are that the trial Judge erred in admitting the photograph, failed to give proper directions to the jury as to the use to be made of the photograph and failed to give the special caution which is required in relation to photographic evidence of identification.
22 Counsel for the appellant argued that s 115 of the Evidence Act 1995 operated to exclude the photograph from evidence. This section, so the argument ran, precluded its use in the trial because the appellant was in police custody and had not refused to take part in an identification parade (s 115(5)(a)) Furthermore, so it was argued, even though the photograph was admitted into evidence the direction given by the trial judge did not fulfil the requirement of s116 in that the jury was not informed that there was special need for caution before accepting identification evidence nor told the reasons, both general and particular, for such need for caution.
23 This submission lacks a sound basis. Picture identification evidence is defined in s 115 (1) of the Evidence Act 1995, (the Act) to mean,
"identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers"
24 This provision, particularly when viewed against the prohibition in s 115(2) of the Act (which precludes the use of pictures which suggest that they are pictures of persons in police custody), is not directed at pictures of the kind involved in the present case. It is concerned with pictures "kept for the use of police officers". In short s115 is concerned largely with what are colloquially known as "mug shots". The very form of s115 directs attention to pictures of a very different kind from those taken by security cameras at the scene of a crime. Furthermore the photograph taken from the security camera was not used by any witness who identified the appellant for the purposes of making their identification, indeed the one witness who used photographs kept by police officers did not identify the accused and there is no suggestion in the evidence that the photographs which that witness was shown included the photograph taken from the security camera.
25 The complaint made on the appellants behalf in relation to the direction given by the trial Judge concerning the security camera photograph also fails.
26 An identification line up was held on 20 January 1998. Three witnesses clearly identified the appellant. A number of other witnesses who did not attend the line up gave descriptions of the robber which matched the description of the appellant. There was thus adequate evidence to go to the jury of the identification of the appellant at the Wetherill Park robbery.
27 Early in the summing up the trial Judge indicated that a particular warning would be given about the security camera photograph. It was. The trial Judge told the jury, inter alia, that;
"there is a special need for caution before accepting identification evidence… I warn you identification evidence may be unreliable"
and:
"because of the dangers of convicting on such evidence…identification evidence should always be examined most carefully"
and:
special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification"
and :
"the common experience of criminal courts over the years… has demonstrated that identification evidence, however honestly given may turn out to be unreliable"
28 The trial Judge then posed a number of question for the jury to consider in relation to the identification evidence, again informed the jury yet again to "scrutinise and examine very carefully the identity evidence" and having done this examined the situation and evidence of each of the witnesses who gave evidence of identity. In my opinion the directions given to the jury by the trial Judge were in accordance by the requirements of the law and a close examination of them reveals no error.
29 Grounds 5 and 6
The person who carried out the Wetherill Park robbery on 3 October 1997 was armed with a hand gun. That person was clearly identified as the appellant by a number of witnesses. The person who carried out the Unanderra robbery on 17 October 1997 also carried a hand gun. During the course of the robbery it was discharged, two shots being fired. The appellant was arrested on 25 November 1997. At the time of his arrest he was carrying a small plastic bag and the police evidence was that a hand gun was found in such bag. Ballistics tests were carried out on the hand gun. They established that the hand gun found in the small plastic bag carried by the appellant was the same as that from which the two shots has been fired at the Unanderra robbery.
30 Counsel for the appellant complains that the trial Judge failed to give a direction to the jury as to what constituted "possession" as a matter of law. That submission with all respect to Counsel completely misses the point in relation to the hand gun. The issue posed at the trial was whether or not the hand gun was in the plastic bag which the appellant was carrying at the time of his arrest. The appellant's case was that there was no hand gun in the bag at the time of his arrest and that the police evidence to the contrary should not be accepted. The issue was gun or no gun in the bag, not some fine distinction as to whether the gun being in the small plastic bag constituted possession.
31 In an interview which was video recorded the appellant was shown the plastic bag and asked: "Do you agree that you were in possession of this plastic bag?" to which the appellant answered: "Yes". However when then asked if the bag had been taken from him in the toilets at the centre at which he had been arrested, he said he had nothing to say. Later in his interview when he was again asked if he agreed that he was carrying the plastic bag he answered "No". When asked: "And do you agree that at the time you were arrested at Parramatta you were in possession of a pistol", he replied: "No, I agree there was one there, with, the police actually had yes but I deny possession of the gun" . Leaving aside the problems posed for the credibility of the appellant by the foregoing, what is clear is that the issue the appellant was raising was that the gun was planted on him by the police; in colloquial parlance, that he had been "loaded up".
32 The trial Judge directed the jury that they had to be satisfied beyond reasonable doubt as to appellant being in possession of the gun. The evidence in that regard was examined in detail and the jury was directed to scrutinise that evidence carefully and in doing so to bear in mind the position of disadvantage in which the appellant was placed.
33 In my opinion the direction by the trial Judge adequately and correctly informed the jury in relation to the issue for their consideration and the onus that the Crown had to discharge in that regard. In this context it is appropriate to note that no direction was sought at the trial in relation what possession meant. That was undoubtedly because the nuances of what constitutes possession in law were not involved in the case.
34 A number of circumstances over and above possession of the hand gun were relied upon by the Crown. These included the finding of a newspaper clipping in relation to one of the robberies in the premises occupied by the appellant, the finding in such premises of a pair of Nike Wind Runner shoes, the sole print of which matched an imprint left at one of the crime scenes and the sudden and unexplained wealth of the appellant. This was revealed by some 36 TAB tickets which were found at his residence, the dates of which followed closely upon the dates of the robberies and the amounts of which were unexplained. This was particularly significant in the light of the fact that the sole income of the appellant was a pension of some $320 per fortnight, that he had deposited an amount of $1500 in his account at the St. George Building Society on 20 November 1997 and had receipts showing the purchase at about that time of goods to a value of $1380. The trial Judge told the jury that it was not necessary to find each of these circumstances proved beyond reasonable doubt, but if any of them were found probably to exist "that finding might assist you in your main task, that is of course, to decide on the whole of the evidence you are satisfied beyond reasonable doubt that the accused is guilty"
35 This direction was in essence repeated later in the summing up and followed shortly upon a direction as follows:
"…before you can find an accused person guilty of a crime on the basis of circumstantial evidence you must be satisfied that such a finding is not only reasonably but that it is the only reasonably finding to make
It follows, that if there is another finding which is reasonably open, that is, if there is another reasonable explanation which is consistent with innocence, it is you duty to find the accused not guilty"
36 The directions given were both adequate and correct. The submission to the contrary is rejected.
37 Ground 7
The Notice of Appeal challenges the convictions on counts 2 and 4 (larceny of motor vehicles) on the basis of misdirection or inadequate direction in relation to the larceny). The Crown case was that the appellant was a passenger in each of the cars when he himself knew that they had been stolen.
38 The car used in the Wetherill Park robbery was stolen from Fairfield hospital sometime after 11am on the day of the robbery. It was parked at the time by its owner, who discovered that the car was gone when he returned at 4.15pm to the place where he had parked it. The robbery at Wetherill Park took place at about 3.50pm that day. The car used in the Unanderra robbery was stolen from Westfields at Figtree. It had been left there by the owner at about 1.15pm and was gone when she returned to the place where the car had been parked at 2.15pm. The Unanderra robbery took place around 2.45pm.
39 There was no direct evidence that the appellant stole either vehicle. There was evidence of description of the vehicles involved in the robberies which correlated such vehicles with those which had been stolen. In the case of the car used at for the Wetherill Park robbery a witness recorded the number of the vehicle involved as OHN 391. In fact the number of the stolen vehicle was OHH 391, but the general description of the vehicles matched that of the stolen vehicle. The second vehicle did not have all the registration numbers noted, but the evidence of description combined with that in relation to the numbers which were recorded, gave a good correlation between the stolen vehicle and the vehicle used in the robbery.
40 The trial Judge directed the jury that the robber in both instances got into a car which met him by obvious pre-arrangement, since he appeared to wait for the getaway car to arrive before he undertook the robbery. Having a get- away car is an important element in the planning and execution of a bank robbery and if it was the appellant who was involved in the robberies then it was open to the jury to infer that he well knew the circumstances in which the vehicles had been obtained. No challenge was made to the adequacy of the direction given by the trial Judge and on the hearing of the appeal any question relating to the conviction in relation to the cars was said to be "irrelevant." Counsel of the appellant said: "I don't rely upon it, if the court is against me on the other matters, because the sentences in relation to the cars really are of no consequence as they run concurrently". There is, therefore, no need to consider this ground any further.
41 Ground 8
This was not pressed at the hearing or dealt with in the written submissions filed on behalf of the appellant.
42 Ground 9 - Sentence
The appellant was sentenced to imprisonment for various terms which in aggregate gave an effective minimum sentence of 12 years, with an additional term of 4 years. The sentences were fixed to commence on the day of his arrest, namely 25 November 1997 and, taking into account the additional term, to expire on 24 November 2013.
43 The trial Judge carefully considered the circumstances of each offence, their seriousness and the consequences to the persons involved, particularly the lady who was wounded when the gun was discharged in the course of the Unanderra robbery. Those considerations called for a substantial penalty. The first robbery carried a maximum penalty of 20 years; the second a maximum penalty of 25 years. The first robbery was committed less than one month after the appellant had been released from maximum security on sentences for armed robbery, maliciously discharging a firearm with intent to prevent lawful apprehension and stealing a motor vehicle. During his time in prison he attempted to escape. In addition it appears that, although not taken into account by the trial Judge, the appellant may well have had another conviction for armed robbery or a like offence in 1985.
44 In Veen v The Queen (No. 2) (1987 - 1988) 164CLR 465 it was said:
"Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoners claim for leniency. That is not and never has been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties"(supra at 477 - 478 per Mason CJ, Brennan, Dawson and Toohey JJ)
and:
…"the antecedent criminal history of an offender is a factor which maybe taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the offence a continuing attitude of disobedience of the law. In the later case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind" (supra at 477)
45 Not only were the offences committed by the appellant serious in themselves, but they were obviously planned. In addition the appellant paid no regard for those who were terrorised by his acts or for the lady he shot. The case falls into a class of case in which the elements of retribution, deterrence and protection of a society warrant a severe penalty. The fact that the offences were committed less then a month after the appellant's release from imprisonment for like offences also calls for a punishment which will operate to deter the appellant and other offenders for committing offences of a like kind. The penalty imposed by the trial Judge was appropriate. It is consistent with the approach taken in R v Malcolm John McDonald (NSW CCA 12 October 1998, unreported per Spigelman CJ).
46 In my opinion the appeal against conviction should be dismissed as should the appeal against the sentence imposed.