REGINA v MERRITT [1999] NSWCCA 29 | Case summary

Judgment on Convictions 1 THE COURT: Noel Joseph Merritt (an Aboriginal man) was convicted on 18 August 1997 after trial by jury in the District Court on two offences - (i) on 13 September 1995, he stole a motor vehicle DZC 481, the property of Mark Andrew Edwards; and (ii) on 13 September 1995, being armed with a sawn-off rifle, he assaulted Robert Leggett with intent to rob him, at the time of the assault, wounding him. 2 On 11 December 1997 the appellant was sentenced in respect of the first offence to a fixed term of penal servitude for twelve months, to commence on 2 October 1998 and expire on 1 October 1999 and in respect of the second offence, a term of fourteen years penal servitude of which the minimum term was nine years commencing on 2 October 1998 and expiring on 1 October 2007 and an additional term of five years commencing 2 October 2007 and expiring on 1 October 2012. 3 Before dealing with the Grounds of Appeal it is convenient to briefly set out the facts. 4 Robert Leggett was employed by Armaguard, the security service operated by Mayne Nickless Limited, as a security guard. On Wednesday 13 September 1995 he was part of a crew comprising him, Timothy Malone and Bryan Wallace, who were engaged in making cash deliveries from an armoured vehicle. Leggett and Malone performed the deliveries and Wallace was the driver. At about 10 am the truck arrived at the Endeavour Credit Union which is located on the ground floor of the Royal Alexandra Children's Hospital, Camperdown. Malone and Leggett left the vehicle with a bag containing $12000 in cash to be delivered to the Credit Union. Wallace remained in the vehicle. 5 Leggett was confronted by a hooded man holding a sawn-off rifle pointed at his head. He grabbed the gun and forced the barrel down. In the struggle, the gun went off and Leggett was shot in the lower abdomen, falling to the ground and blacking out for a few seconds. He heard three to four gunshots from close to him. Leggett was not asked whether he was able to say if either of the men was wearing gloves. 6 There was no dispute that the person who shot Leggett was one Stephen Lord, who later pleaded guilty and was sentenced. Another man was seen by Leggett in company with Lord also wearing a hood. The case for the Crown was that the other man was the appellant, Merritt. 7 At the time of the struggle between Leggett and Lord, Malone, as it happened, was inside the security section of the Credit Union, handing over the money to an employee. As the two checked the money together and Malone was in the process of signing it over, he heard loud voices and a loud banging noise from the entrance to the Credit Union. He looked around the closed security door towards the entrance of the Credit Union and saw two persons, each wearing balaclavas and each holding a gun. He saw Leggett on the ground. Malone said that he fired three shots at both offenders with his .38 calibre revolver, hearing one of the offenders scream when he did so. The two men fled. Malone opened the steel door and ran to Leggett. As he did so, he saw the other men running up the hallway towards an exit and one turned and pointed his gun towards him. Malone fired at least two and possibly four shots at that stage and it seems that there was no return of fire. He followed the two men out through the exit and saw them running up towards Pyrmont Bridge Road. He then reloaded his revolver because he thought it was empty. He went up to the main road but by the time he got there, they had disappeared. He thought the two men were about 5'9" tall and of similar build. Malone said that he had done a lot of target shooting as a marksman. He was not asked about seeing gloves on the offenders. 8 In the meantime, Mr. Wallace had got out of the truck, and saw the two men running out of the building into the exit onto Pyrmont Bridge Road, one going right towards Parramatta Road the other left towards Glebe Point Road and then they went out of sight. He noticed that one of the men was wearing a dark blue shirt and dark blue trousers whilst the other man, he thought, was wearing a white shirt. He noticed one stumbling; the man who ran to the right from the exit. He could not see their hands. 9 A Ms Harris saw one of the offenders, with a gun in his left hand, enter the back of the car and the car drive off quickly. She remembered the number of the registration plate as OCZ 481. 10 A number of other witnesses were called who had seen part of the events inside the hospital. Their evidence, though undoubtedly relevant, added little of forensic significance to the case except in a general sense of setting the scene. Not surprisingly, their observations were limited, somewhat confused and coloured by the shock of the moment. 11 A Mr Colin Gill was driving a bus in Pyrmont Bridge Road and was stopped at the intersection with Lyons Road in the lane closest to the gutter when he heard four shots and saw two men running up a lane One went behind the bus where he lost sight of him and he saw the other on the opposite corner. He drove on and as he did so, he saw a car speeding off in front of him going down Pyrmont Bridge Road towards the city. Mr Gill described the man who was standing momentarily in front of him as about thirty, with an olive skin, 5'6" or 5'7" tall with dark hair although whether he was wearing a balaclava or not he was unsure. 12 Paul Yarrow was a courier who, at the time of the robbery, was travelling north-easterly in Pyrmont Bridge Road and, when stationary at a red light at the intersection of Lyons Road, saw a man run alongside a parked bus and in front of his van, into a block of flats known as the Johanna O'Dea Court. He then disappeared over a grassed area. Johanna O'Dea Court is bounded on one side by Pyrmont Bridge Road and on the other by Lyons Road and on the third by Lambert Street. The man was wearing a sloppy joe and track pants and (significantly) white gloves. Mr Yarrow was confident that he would notice the difference between a person who looked about 30 years old and one who (like the appellant) looked in his mid forties. He had grown up in areas that had a high population of Aboriginal people and had a number of Aboriginal friends. Mr Yarrow saw this person run though the area occupied by Johanna O'Dea Court but lost sight of him in a car park area under the building. Mr Yarrow was asked by counsel for the appellant to look carefully at him in the court. He did so and agreed that the appellant did not have the appearance of the man who ran in front of his car, was considerably older than that person and had a different hairstyle to him. His assessment of the age of the person whom he saw was that he looked about his own age and he was influenced in that respect by his black hair. He saw the man in all for about 90 seconds and was able to observe his face for 10 seconds, 15 at the most. His recollection was that the man was 25 to 30 years old with black curly hair, of Aboriginal appearance, 5'8" tall and medium to solid built. Although he assisted with the preparation of a Penri sketch of the person that he saw, he was unhappy with the level of resemblance achieved and described it as being only 65% right. 13 It is convenient at this point that we deal with an additional Ground of Appeal raised on the appellant's behalf, to which no objection was taken by the Crown. We granted leave to the appellant to argue the ground, which is in the following form - The learned trial judge erred in not allowing Counsel for the Appellant to ask a witness questions relating to identification. 14 The evidence is as follows : JAUNCEY: Q. Mr. Merritt, stand up please. (Accused complied). That is not the person you described, is it? A. I can't see, sorry, I have not got my glasses. Q. Did you have your glasses on the day? A. Yes. Q. Have you got them there? A. Yes. Q. Would it help if you got closer? A. Yes. HIS HONOUR: Just move down from the witness box and closer. JAUNCEY: Q. That is not the person that you saw? OBJECTION (FORM). QUESTION REJECTED. Q. Look at Mr. Merritt. Look at Mr. Merritt's face. That face does not match the Penri description that you gave to the police sometime after 13 September, does it? OBJECTION. QUESTION REJECTED. Q. Have you ever seen Mr Merritt before? OBJECTION. QUESTION REJECTED. Q. Mr Merritt does not have the appearance of the man who ran in front of your car on 13 September? A. No. (Witness returned to witness box). Q. You would agree having had a close look at Mr Merritt he is considerably older than the person who ran in front of your car? A. Correct. Q. Even taking into account that Mr Merritt has a different hair style to the person that you described? A. Yes. 15 In our view, having regard to the issues in the trial, his Honour correctly rejected the first question indicated. The question was ambiguous. The witness had seen the offender fleetingly two years previously. Over that period his features may well have changed. What the witness was, in effect, asked to do was to compare the present appearance of the appellant with his recollection of the offender but the form of the question also asked implicitly whether any differences may be explained by the passage of time or, perhaps, incomplete observation or confused recollection. If these elements were separated and asked discretely, there could have been no objection to them: R v Palmer [1981] NSWLR 209. 16 The second rejected question was, however, quite proper. The Penri sketch was tendered by the prosecutor, no doubt for the very purpose of permitting the jury to compare it with the appellant's appearance. I do not see why that very question could not be asked of the witness who had (indirectly) made the sketch. 17 The third rejected question was also proper, in our opinion. It was implicit that it related to the occasion of the robbery though in terms it was unqualified and hence ambiguous. However, any positive answer could be further explored and a negative one was not ambiguous. In truth, the opinion that was sought from the witness that the person in the courtroom was not the person that he saw almost two years before, was an inference drawn entirely from the differences between the appearance of Mr Merritt at trial and the witness's recollection of the person that he had previously seen. In the result, this was the evidence actually adduced by the appellant's solicitor. We do not see how taking the matter one step further advanced the appellant's case, except as a forensic flourish. Thus even if his Honour's ruling erred, we consider that no prejudice was occasioned to the appellant. We would reject this ground of appeal. 18 We return to an account of the evidence. A Mrs Wendy Hawker, who happened to be the head physiotherapist at the hospital, had left the out-patients' section between 9.30 am and 10 am and walked out of the hospital grounds onto Bridge Road. She heard what she thought were gunshots (and obviously were) and flattened herself against the hospital wall on Bridge Road so that she was looking back towards where the hospital road comes out onto Bridge Road, thus looking easterly down Pyrmont Bridge Road towards the city. Almost immediately she saw two men in balaclavas running out of the gateway from the hospital into Pyrmont Bridge Road. She did not notice whether they were carrying anything. One of them ran into a white car, which could have been a Commodore, which was parked at the lights at the corner of Lyons Road and Pyrmont Bridge Road, and got into the front passenger seat. She noticed that as he got into the vehicle he took the balaclava off. She recalled that the number plate of the vehicle was green with white writing and the commencing letters were either DSV or DCV. The second man ran across the road towards the Johanna O'Dea building. As he ran, he had to stop in the middle of the road and it was here that he took his balaclava off. Mrs Hawker saw him run though the carpark under the block of units, past the cars that were parked there and when he got to the second row of cars he threw something underneath one of them. She did not see what it was that he had thrown. She then saw him continue through a lane leading to Mallett Street. She found it very difficult to describe the person that she saw getting into the car because she only got a glimpse of him from the back but she thought he was Caucasian. She recalled that the balaclava he had been wearing was black. She did not get a chance to see the driver of the vehicle. 19 So far as the other man was concerned, Mrs Hawker said she only saw his face very briefly from an angle. She thought he was medium height, perhaps a little taller; his build was medium to slim. She found it hard to tell his skin colour, but she thought he had mainly "Caucasian-type features but with a dark, swarthy look to his skin". She thought he was about 30 to 35 years old. His hair colour was brown to black, straight and somewhat short; his face seemed to be pock-marked (as was the appellant's). She saw one of his hands. He was wearing a dark blue T-shirt and dark blue pants. The balaclava was black. 20 Immediately after Mrs Hawker saw these events, she spoke to a security guard and a little later to the police. She accompanied a uniformed policeman to the place where she had seen the man throw something under the car. She looked under it and saw what she thought was the balaclava and also semi-transparent, white latex gloves, which she described as surgical gloves. One of these gloves bore a fingerprint of the accused. Mrs Hawker was shown a video film containing a picture of the appellant but was unable to make any identification. She had not seen anything unusual about the gait of the man she saw running towards the Johanna O'Dea building although, on the prosecution case, he had been wounded once and, possibly, twice. Although she had not seen the men carrying anything, she was not certain that they were not doing so. She thought that seeing the gloves would have jogged her memory about whether the man she had seen crossing the road was wearing gloves but she did not, in fact, recall this. 21 It is necessary to go back a little to events earlier that morning. Mr Favari, who lived in 150 Wigram Road (close to the hospital) in a townhouse, had gone with his wife to the carpark provided for residents and their visitors under the building. He noticed a white Commodore with green numberplates in the visitors' carpark and three persons entering the car. This was about 9.30 am. He returned at about 5 or 10 minutes past 10 o'clock and he noticed that the car's engine was on with the door open but no one either in the car or nearby. He described the three men who were entering the car when he first saw it. One was tall, about 45 years old, wearing blue jeans and normal dress. The shortest of the three was wearing a black leather jacket and was between, perhaps, 30 and 40 years of age and of normal build. The build of the third person was between that of the former and the latter and he was between 20 and 30 years old; he was wearing a balaclava on his head. All of them appeared to be of European extraction. Mrs Favari gave descriptions more or less consistent with those of her husband, although she thought that the tallest of them had olive-coloured skin. The Commodore bore registration plates DZC 481. A Mr Sutton was leaving his premises in 150 Wigram Road, Glebe when he heard a car screeching around the corner into the drive near to his premises and around the corner into a parking bay just out of his view where he was sitting in his car. He started his vehicle and stopped for the other car to come in. He backed out and started to drive up the driveway towards the street when he saw two men coming up the drive past his car and run in front of him across the road. He thought that one of them looked Caucasian or Anglo-Australian, was about thirty years of age and possibly 5'9" tall and stocky build. He described his complexion as fair, a bit ruddy, and his hair as sandy-coloured and curly. He thought that the other person was about thirty years old, or possibly younger, and looking like a Maori or Islander. He thought that he was certainly dark, well-built and was wearing a light-coloured T-shirt and track suit pants or baggy jeans. In the course of the police investigations, Mr Sutton was shown a video with a number of faces on it, including that of Merritt. There were no faces that particularly looked like the two persons that he saw. As it happens, the video also contained a picture of Lord, who Mr Sutton thought looked vaguely familiar, but he was unable to identify him although it seems certain that Lord was one of the men he had seen. I should mention at this stage that his Honour, the trial judge, warned the jury that the mere fact that the police were able to produce a photograph of the appellant from their modus operandi section should not lead them to conclude that he had a prior criminal record or that he had ever been convicted or charged or in any sort of trouble with the police and that they should not pre-judge him "to determine that he somehow had been in trouble before this case". No complaint is made about the adequacy of this direction. 22 The Commodore had obviously been stolen, the ignition barrel found hanging from the dashboard. In the car were found loose-fitting gardening-type gloves and a beanie with eye holes cut into it virtually identical to that found in the Johanna O'Dea carpark with the white latex gloves. The owner of the motor vehicle said that he had not left either the gloves or the beanie in the car. It is inescapable that these were items used in the robbery. A bloodstain was also found on the front passenger side seat of the car which was not there when the car was stolen. It is also plain that this bloodstain resulted from wounds sustained by one of the offenders. 23 When the appellant was arrested on 10 January 1966, slightly under four months after the robbery, a medical examination disclosed scarring which appropriately qualified experts called by the Crown deposed were consistent with entry and exit wounds caused by two .38 calibre bullets. Their opinions were that the scars were consistent with wounds inflicted between two and six months prior to inspection, or two to three months or, again, one and six months, with the highest degree of likely time of infliction very close to the date of the robbery. This evidence was uncontradicted. 24 For the purposes of this judgment it is not necessary to analyse the ballistics evidence of the scene. It is sufficient to state that there was sufficient material for the jury to conclude that each of the two men who took part in the robbery had been wounded by shots fired by Malone, the security guard, using a .38 calibre handgun. 25 I now turn to the grounds of appeal. Ground of Appeal No 1 is as follows - His Honour erred in law in allowing into evidence material relating to the Accused's intravenous drug use and not discharging the jury when a witness referred to the Accused's intravenous drug use. 26 The evidence giving rise to this ground of appeal came from Dr Stewart Anderson who, on 10 January 1996, on the appellant's arrest, took hair and blood samples from him and conducted an examination of his body. The results of that examination were set out in a statement which contained the following paragraph - I examined Mr Merritt's body and noted the following -...evidence of intravenous puncture marks to both cubital fossae ...the features noted on Mr Merritt's cubital fossae suggest intravenous drug usage. 27 This report, in accordance with usual practice, was provided to the defence before trial. The course of action adopted by the prosecutor in dealing with Dr Anderson's evidence was, following some introductory information, to get the Doctor to read his statement. Dr Anderson commenced with a general description including the following passage - I also noted evidence of intravenous puncture marks to both cubital fossae. 28 No objection was taken either to the course of asking the doctor to read his statement, before or following his reading of this part of it. 29 The balance of the statement dealing with a general description of the appellant's appearance was then read and the prosecutor asked additional questions and tendered an examination diagram. The prosecutor then asked - Q. The puncture marks you found on Mr Merritt's cubital fossae, did you form an opinion as to the likely reason that those puncture marks were present? A. Yes, they were suggestive of intravenous drug usage. 30 Mr Jauncey, the appellant's solicitor, who appeared alone and without assistance, immediately indicated that he wished to make an application and, in the absence of the jury, submitted that the evidence was so prejudicial that it could not be cured by any direction to the jury, and sought a discharge. The prosecutor submitted that the possible cause of the puncture marks went to motive in that it suggested he was a heroin addict and submitted that the analgesic effect of any heroin taken by the accused prior to the robbery might explain how, being shot, he managed to make good his escape. The prosecutor submitted that it was implicit in the hospital records, to which he and the defence had access, that the appellant was on heroin at the time he was arrested and suggested that he might wish to cross-examine the appellant about it should he give evidence. As we understand it, the suggestion (which was not spelt out) was that it was necessary that the Crown lead this material in its case or else it might be precluded from cross-examining the appellant should he give evidence by the rule that the prosecution should not split its case but should present it completely before the accused is called upon for his defence: see The Queen v Chin (1984-1985) 157 CLR 671. The prosecutor also made the legitimate point that Mr Jauncey had notice that the Crown proposed to call this evidence and took no timely objection. We have received evidence in this Court as to the prior discussions between the prosecutor and Mr Jauncey. We conclude that Mr Jauncey gave the prosecutor a clear intimation that he proposed to object to this evidence. However, he did not suggest that there should be a voir dire to determine its admissibility and did not seek one from the trial judge. He told this Court that the trial involved a number of complicated and difficult factual issues, and that he had briefly lost his concentration. We do not think that it is necessary to analyse this question any further than to state our conclusion that the reason for Mr Jauncey's failure to object in time was not tactically determined but simply because he was not sufficiently alert when this evidence was given to do so in a way that would have prevented its elicitation prior to determination of its admissibility by the trial judge. Mr Jauncey told this Court that the trial involved a number of complicated and difficult factual and scientific issues (which is certainly true) that had distracted him temporarily when the evidence was being given. (Indeed, we think that granting legal aid in the circumstances of this difficult trial for only one legal representative without assistance demonstrates a false economy.) As the evidence came out, Mr Jauncey belatedly appreciated that he should have objected at an earlier stage and then made his application. Despite the prosecutor's submission that the evidence established a possible motive for the robbery arising out of the need to finance a drug habit, and the basis for calling evidence as to the analgesic effect of heroin, nothing further was said about this evidence during the rest of this trial either by the Crown Prosecutor or by Mr Jauncey and his Honour did not mention it in his summing up. 31 The evidence was obviously irrelevant. The mere fact that the appellant had taken drugs intravenously around the time of his arrest could not support an argument, let alone tend to establish, that four months earlier he was an illicit drug taker, nor that such drugs comprised heroin nor that they (whatever they were) were ingested shortly before the robbery so that any possible analgesic effect might have been operating at the time of the robbery. For the same reason, it could not establish a motive at the time of the robbery. In our view, moreover, even if the appellant had been using illicit drugs at the time of the robbery, that would not be probative evidence of motive either at all or sufficient to overcome the significant prejudicial effect of such evidence. Given that the evidence was irrelevant, the question whether its probative value was outweighed by the danger that it might be unfairly prejudicial to the appellant (vide ss 135-137 of the Evidence Act 1995) does not arise. It may be that Mr Jauncey did not give notice to the prosecutor that he proposed to object to this evidence sufficiently emphatically and that a voir dire prior to its admission should have been conducted. However, that did not excuse the prosecutor from determining for himself the relevance and admissibility of the material. In our opinion, it was self-evidently inadmissible. It is most unfortunate that no opportunity was given to his Honour to determine and exclude this evidence before it was given in the presence of the jury. Whilst the incidents of adversarial proceedings are, by and large, conducive to the efficient and fair conduct of trials, prosecutors should not be tempted to run the gauntlet in order to adduce irrelevant evidence, especially where its effect may be significantly prejudicial. Whether objected to or not, this evidence should not have been tendered. 32 It is obvious from the account of the facts that we have already given that, although the Crown case could not be described as weak, it was certainly a good deal less than overwhelming. In this context, the evidence that the appellant was an intravenous drug user was highly prejudicial and may well have deflected the jury from the close examination which it needed to make of the circumstantial case sought to be made by the Crown. We doubt that any direction would have been capable of adequately disposing of the grave prejudice to the appellant of this irrelevant evidence and the consequence should have been that the jury must have been discharged. As it was, no direction at all was given as to what use, if any, might be made of this evidence. If the trial was to continue, the trial judge should immediately have ruled that the evidence was irrelevant and instructed the jury to completely disregard it, explaining perhaps why it was immaterial and trusting to their sense of fairness and ability to reason rather than poor memory to exclude it from their consideration. We are of the view that his Honour erred in declining to discharge the jury and then failing to give an appropriate direction that they should disregard the evidence and, accordingly, that this ground of appeal is made out. 33 The second ground of appeal is in the following terms: His Honour erred in law in allowing into evidence the evidence relating to the Accused having suffered gunshot wounds. 34 The evidence as to this subject is briefly but sufficiently set out above. 35 Objection was taken to its admissibility and his Honour ruled in favour of the prosecution following a voir dire. 36 The crucial considerations are whether and the extent to which the evidence of the wounds was probative and whether and the extent to which there was a risk that the jury might consider that the presence of such wounds reflected adversely on the character of the appellant. 37 The Crown case contained the following elements which, taken together, pointed to the appellant's guilt - (i) the appellant's fingerprint was identified on a latex glove, found with the other glove and with a beanie which bore a striking resemblance to a beanie undoubtedly used in the robbery; (ii) the beanie, and possibly the gloves, had been discarded by an offender; (iii) the beanie found in the getaway car was also found together with gloves, albeit of a different type; and (iv) a witness saw a man wearing white gloves, run from the hospital just after the robbery and towards the carpark, who was Aboriginal in appearance (although he did not believe he was the appellant). 38 In our view, the jury might reasonably have inferred that it was probable that both robbers were wounded by shots fired from a .38 calibre weapon. In this context, the fact that the appellant had suffered gunshot wounds that could have been inflicted by .38 calibre bullets and could have been inflicted at the time of the robbery, was capable of significant probative worth. The mere fact that, considered alone, the evidence was also consistent with an innocent explanation does not determine the question of its probative value. That question must be considered in the context of the evidence as a whole. 39 Mr Corr, the appellant's counsel, argued that the evidence of scarring was coincidence evidence. This submission can be shortly disposed of. It was not tendered to establish a coincidence in the sense that, it being proved that he had been shot at once, the appellant was likely to have been shot at again. This was no more coincidence evidence than evidence that, for example, the appellant had been seen in the vicinity of the crime by someone who was able to positively identify him. The essence of coincidence evidence is that there is established to have been two events in circumstances where the existence of one event establishes the likelihood that the appellant was responsible for, or involved in, the other separate event or to establish that the other of those events did not occur by accident (cf s 98(2) Evidence Act 1975). Accordingly, the rules relating to eliciting similar fact evidence either under the common law or s 98 of the Evidence Act 1975 are inapplicable. 40 It was also submitted that this evidence was adverse to the character of the appellant and therefore should have been excluded since it was not sufficiently probative to justify its admission. We do not consider that the evidence of gunshot wounds suggests that the accused was a person of bad character. It suggests no more than that he was a victim of a shooting. Even if there were some risk that the jurors, departing from reason and common sense, might have considered that suffering such wounds raised a question mark about the appellant's character, we consider that that risk was more than out-balanced by the significant probative value of the evidence. It was, however a matter upon which directions to the jury warning them against inappropriate speculation was appropriate. In this respect, his Honour, the learned trial judge, said - It is possible that you might decide that the scarring does in fact come from gunshot wounds, whilst not being persuaded that the wounds were effected by Mr Malone [the security guard] on 13 September. It would be wrong for you to reason in this fashion: the accused has gunshot wounds; gunshot wounds must mean that he has been involved in some antisocial or criminal activity; therefore he must be a bad man; therefore we will convict him of this robbery, even though we are not altogether persuaded he was at the scene. That would be quite wrong. You must under no circumstances use that line of reasoning. It would be wrong to leap from a conclusion that they were gunshot wounds, directly to a conclusion that he must be guilty, regardless of the other evidence. Do not do that. I am sure you will not. I cannot put that in any stronger terms. The gunshot wounds, if you find any, are relevant only if you are persuaded that they were delivered at the time of the robbery. That is a circumstance you take into account, together with the fingerprint and all the other evidence in reaching your conclusion. 41 Mr Jauncey, appearing for the appellant at trial, did not seek a redirection. It might have been preferable had his Honour pointed out that, at all events, to suppose that gunshot wounds might implicate the appellant in "some anti-social or criminal activity" was itself highly speculative and thus both an unfair and unreasonable line of reasoning. However, we are of the opinion that his Honour's directions brought to the jury's attention with sufficient force the important point that they were not to hold the fact that the appellant had gunshot wounds (assuming they were satisfied that they were gunshot wounds) against the appellant in any sense other than that, if they thought they may have been inflicted at the robbery, the fact of such wounding might be added to the other circumstantial evidence to prove his participation in the crime. 42 It follows from what we have said that we are also of the opinion that the evidence should not have been excluded pursuant to ss 135, 136 or 137 of the Evidence Act 1995. 43 The third ground of appeal is as follows - His Honour erred in directing the jury on the failure of the Accused to give evidence and remaining silent generally. 44 Following his Honour's summing up of the Crown case, his Honour gave the following directions - The accused did not call evidence, or did not give evidence. There are a number of important directions which I must give you in relation to that fact. An accused person may always give evidence in his trial, but he is under no obligation to do so. As I have already pointed out, the Crown bears the onus of satisfying you beyond a reasonable doubt that the accused is guilty of the offences as charged, and an accused bears no onus. He is presumed to be innocent until you are satisfied, or have been satisfied by the Crown that he is guilty. So the accused is entitled to elect to say nothing, and to make the Crown prove his guilt. You will recall the discussion we had about the caution administered by the police officers in questioning the accused following his arrest. They informed the accused that he was not obliged to answer any questions, and that is the law as I explained to you. A person who is questioned by the police has the right to remain silent, and he retains the right to remain silent even when he is on trial. That is the right that the accused has exercised here. Because the accused has merely exercised the right which belongs to every citizen you must not conclude that he has elected not to give evidence because he is guilty of the alleged charge against him. Such a conclusion by the exercise of the accused of that right to remain silent, would be completely wrong. It must not be viewed by you as an admission of guilt on his part. There are reasons why an accused person may not want to give evidence. He may fear that he will be confused by the cross-examination, or he may simply be content to rely upon the weaknesses, such as those which Mr Jauncey has suggested exist in the Crown case. There are no doubt other valid reasons, about those you must not speculate as to why the accused has not given evidence. In the present case, however, when judging the value of the weight of the evidence which has been put forward by the Crown in establishing its case against the accused, you may take into account the accused's election not to deny, contradict or explain the matters about which he could have given direct evidence from his personal knowledge. If you are satisfied the accused could have given evidence from his own knowledge of, for example the cause of the scarring detected, or the presence of his fingerprint on the glove, and if you are satisfied it is reasonable in the circumstances to accept some denial, contradiction or explanation to be forthcoming from the accused, if such a denial, contradiction or explanation were available then you may use the election of the accused not to put forward such denial, contradiction or explanation, as a circumstance which leads you more readily to accept, for example, the opinions of Doctors Anderson, Crozier and Oettle insofar as they may stand together, bearing in mind the criticism of those opinions made by Mr Jauncey, to which I shall return. You cannot, however, use the election by the accused not to put forward any denial, contradiction or explanation in order to fill in any gaps which may otherwise appear in the evidence on which the Crown relies. Its relevance relates only to the value or the weight which you give to the evidence which the Crown witnesses have given, and to the inferences which the Crown seeks to have you draw. Hypotheses or theories consistent with innocence may cease to be rational and reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be primarily within the knowledge of the accused. I remind you however that the decision by the accused not to give evidence may spring from reasons of which we have no knowledge. I repeat that the exercise by the accused as to his right to remain silent must not be construed by you as any admission of guilt, and that the onus of proving his guilt beyond a reasonable doubt lies first, last and always on the Crown. What were the arguments which counsel used? Before I leave that subject, however, and go on to the arguments used by counsel, there is one thing I should say about this scarring. I have told you that you must not use against accused as any form of admission, the exercise of his right to remain silent when asked questions, because that is the right we all have. It would be worthless if somebody drew adverse conclusions from the exercise of that right. I will just explain to you the same holds true all the way through the trial. You must not draw any conclusions of guilt from the mere exercise by the accused of his right to remain silent during the trial, and to simply rely upon the weaknesses in the Crown case, which Mr Jauncey points out, and which I will return to. 45 It is submitted on behalf of the appellant that the passage in the directions as to the accused's silence which we have emphasised above is not in accord with the law as expounded by the High Court of Australia in Weissensteiner v The Queen (1993) 178 CLR 217 and considered by this Court in OGD (unreported NSWCCA 3 June 1997). This submission should be rejected. 46 In Weissensteiner, Mason CJ, Deane and Dawson JJ, said (227-229) - We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really be doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.... However, the appellant argued that, just as it is impermissible for the trial judge to suggest that inferences adverse to the accused may be drawn from a previous exercise of the right to silence, so it is impermissible for the trial judge to suggest that inferences adverse to the accused which are available to be drawn from the facts proved by the Crown may be drawn more safely when the accused does not give evidence of relevant facts which must be within his or her knowledge. We do not agree. There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge. In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence. 47 In their joint judgment, Brennan (as he then was) and Toohey JJ, following a discussion of the authorities and the relevant legislation, stated (at 235) - The limited use which can be made of an accused's failure to testify is of special importance when the prosecution case depends upon the drawing of an inference of guilt from the facts proved directly by evidence. In such a case, the jury must not use a failure to testify as a fact, albeit in conjunction with other facts, from which they might infer the accused's guilt...If there is insufficient evidence of the facts from which an inference of guilt could be drawn, a failure to testify cannot supply the deficiency. But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain or answer the evidence against him, has failed to do so. 48 We do not see how the directions of the learned trial judge, taken as a whole, differ in any significant way from the principles set out in the High Court. In OGD (unreported NSWCCA 3 June 1997) the substantial problem which the Court of Criminal Appeal needed to consider was a direction in accordance with Jones v Dunkel (1959) 101 CLR 298 where the accused had not given evidence. Such a direction was not given in the present case. We note that in OGD, Sperling J observed that in Weissensteiner the High Court approved directions which applied to a case based on circumstantial evidence and which, according to Sperling J, provide "a good precedent" in such circumstances. It is submitted here by Mr Corr that the jury were invited to use the appellant's silence to "fill in the gaps in the Crown case". Considered as a whole, it is clear that the jury were instructed that they could not use the appellant's silence for this purpose, both in terms and as the thrust of what his Honour said on this subject. 49 Accordingly, we are of the view that this ground must fail. 50 Ground of Appeal No 4 is as follows - His Honour erred in law in the directions given to the jury in relation to the requirements in a circumstantial case. 51 His Honour's directions in this regard were - How does the Crown seek to establish beyond reasonable doubt that it was the accused who was the other man? The Crown seeks to do that by what has been referred to by both lawyers as circumstantial evidence. What that means is simply that there is no witness who says, "I saw the accused commit this crime." Lawyers call that sort of evidence eyewitness evidence, direct evidence. Instead, in this case the Crown sets out to prove certain circumstances, that is facts and events which the Crown say prove beyond reasonable doubt that the accused is guilty because there is no other reasonable explanation. Circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed, in some cases it can be more convincing. However, 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 reasonable, but that it is the only reasonable finding to make. Let me give you a couple of examples well away from this case about the proof of a number of circumstances from which you would draw a conclusion. Imagine for example that you telephoned someone, and the phone appears to ring unanswered. It is at a time when you expect somebody to be home. Five minutes later you try again, and this time you get the engaged signal. Now you might, from those circumstances, conclude that your spouse or partner, whoever was expected to be at home, was out the first time, or under the shower or something, and is now evidently talking on the phone to somebody else. That is a reasonable conclusion to draw. But a moment's reflection will show you of course that that is not the only available explanation. For example, an alternative hypotheses may be that you dialled the wrong number once or both times. That there is something wrong with the phone, either at home or the one that you are using and so on. Whilst the conclusion you first drew is a reasonable one, it is not the only one, and consequently would not be a proper basis for drawing a conclusion of somebody's guilt. When you are drawing a conclusion of guilt, it has to be the only reasonable finding open to you. If there is another finding which is reasonably open, if there is another reasonable explanation which is consistent with innocence, then it is your duty to find the accused not guilty. Of course when you consider circumstantial evidence, you do so in light of all of the material in the case. Let me just, for an abundance of caution, give you another example about circumstances and how you may reach a conclusion from them. Assume that you were sitting opposite a hotel and you see a man dusty, tired, obviously weary, dirty, wearing his work clothes, perspiring, go into the hotel. You see half an hour later the man come out looking considerably perked up, looking much more refreshed, no longer hot, bothered and dusty, but cool, calm and collected, wiping froth from his moustache as he walks along the street, you might conclude that he has had a beer while in the hotel, because that would be a proper inference for you to draw in those circumstances. What are the circumstances which the Crown says would be established in this matter, and provide the basis for your concluding beyond reasonable doubt that the only proper explanation for their existence together is the guilt of the accused? 52 His Honour then dealt with each of the elements of evidence relied upon by the Crown, taking each part individually, reminding the jury of what the evidence was, then of the contentions made on the one hand by the Crown and on the other by the defence as to how they should evaluate that evidence. Having done this, his Honour then returned to what might be called the objective evidence that identified the appellant with particular circumstances that may have linked him to the crime namely, the fingerprint on the glove and the scarring, the Crown arguing that the glove was used in the robbery and the scarring resulted from wounds inflicted at the time of the robbery. His Honour then took up the argument of the prosecutor in the following language - He says correctly, as a matter of law, that you look at the totality of the evidence. You do not separate those two strands and examine them separately. You look at them together and ask whether there is any explanation for the existence of those two strands of evidence, consistent with the accused's innocence. If there is, you acquit him. If on the other hand you are persuaded that those strands of evidence, or conclusions from them exist only rationally on the basis that he is guilty, then you convict. 53 So far as this aspect is concerned, Mr. Jauncey sought the following direction - JAUNCEY: The only other thing I would ask your Honour is that you complete the traditional circumstantial evidence warning that you gave in the earlier part of your summing up. HIS HONOUR; Repeat it? Did you say complete or repeat? JAUNCEY: That you would complete it. 54 His Honour reminded the jury about the placement of the fingerprint on the glove but did not otherwise amend or expand his directions. We do not understand what Mr Jauncey meant by "complete", though his Honour may have, as he did not seek further clarification; possibly the transcript is incomplete. 55 It seems to us that the substance of his Honour's directions complied with the conventional requirements in such a case as exemplified by Peacock v The King (1912 13 CLR 619) and Barca v The Queen (1975 133 CLR 82). I take it that Mr Jauncey was implying that his Honour had not directed the jury that it could not return a verdict of guilty unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than guilt. However, this seems to us to have been the clear meaning, in language more amenable to lay understanding, of the passages emphasised by us in his Honour's directions on circumstantial evidence which are set out above. 56 It is submitted before us, however, that the directions of the learned trial Judge did not sufficiently expose the important point that "if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt": Shepherd v The Queen (1990) 170 CLR 576) per Dawson J at 585. It was further submitted that as to whether the case was analogous to the strands in a rope or links in a chain, the latter analogy was appropriate. Accordingly, it was said, a direction should have been given by his Honour to the effect that whether the gunshot wounds were caused in the robbery and whether the glove was used in the robbery were intermediate facts required to be proved beyond reasonable doubt before the appellant could be convicted. 57 Having regard to our conclusions as to the first and last grounds of appeal, it is unnecessary to determine this ground. However, it raises an important issue that should be clarified for the purposes of the new trial, if any. 58 As it is, we hope, clear from the summary of the evidence, the crucial matters upon which the Crown relied to establish the guilt of the appellant were that he had suffered gunshot wounds consistent with having been caused by .38 calibre bullets at a time when they might have been caused in the robbery, that a glove with the appellant's fingerprint on it was found at a place where an offender had deposited something almost certainly used in the robbery and which was virtually identical to a beanie or balaclava found, also in conjunction with gloves, in the motor vehicle used by the robbers. It is obvious that the Crown could not prove beyond reasonable doubt that the glove bearing the appellant's fingerprint was used in, or that the gunshot wounds were caused at the time of, the robbery when they were considered individually or, indeed, together. Their compelling character flows from the discovery of the glove with the headgear undoubtedly deposited by the offender, the probability that he had been shot by the security guard's .38 revolver and the likelihood that that person was an Aboriginal (bearing in mind, of course, that the evidence was somewhat confused on this point and one eyewitness, as it were, positively dis-identified the appellant) and was seen wearing white gloves. 59 So far as the fingerprint was concerned, we do not think that its identification as that of the accused was susceptible to doubt. Indeed, there was no suggestion that it was not that of the accused. 60 The evidence that was capable of establishing that the latex gloves were deposited by an offender was threefold: first, it was found with a beanie that was used in the robbery; second, another beanie used in the robbery was also found with gloves, albeit of a different kind, left by an offender; and, third, Mr Yarrow said that he had seen an Aboriginal (though not, he thought, the appellant) running into Johanna O'Dea Court wearing white gloves at the same time as the offenders were fleeing the robbery; (although he did not see this man remove a beanie from his head, he must have been the same man seen by Mrs Hawker since, if otherwise, the hypothesis that one man deposited the beanie, another the gloves (at another time) and yet another wearing the same coloured gloves ran towards the place they were found at the same time as the first man is absurd and the other possibility that, at the same time, one deposited the beanie and another the gloves, can also be dismissed). 61 In respect of the wounds, the evidence was not unqualified. Mahoney was not able to say if he had actually wounded both offenders, nor was he asked. He was an expert shot and was certainly attempting to hit them. 62 Dr Oettle considered, forming his opinion from photographs only, that there were four wounds which showed characteristics consistent with two bullet entry wounds and two bullet exit wounds. Towards the end of his evidence Dr Oettle, however, agreed that one of the wounds was caused by a gunshot consistent with a .38 calibre bullet whilst the other was consistent with a gunshot caused by a calibre about which he could not be specific but which could have been around .38 millimetres. In cross-examination, Dr Oettle excluded the possibility that the wounds were caused either by a knife or an irregularly-shaped object such as an arrowhead. To my mind, the thrust of the doctor's evidence was that the wounds were, in his opinion, in fact caused by bullets although as to one he was uncertain as to the calibre of the round which might have caused it, although a .38 calibre bullet was within the range of reasonable possibilities. Dr Crozier was of the view that the wounds were caused by bullets and thought the likelihood that they had been caused by a spear or an arrow was low although he could not categorically say that the wounds were not consistent with being caused in this way. He thought that the likelihood was less probable than other possible mechanisms. He concluded by saying that he was "comfortable" with the proposition that the probability that the cause was a gunshot was higher than that of a burn injury, which was higher than with an incising or lacerating injury and then higher than a perforating injury due to an arrow or spear. The substance of Dr Crozier's evidence was that the wounds could have been caused by objects other than bullets, but they must have been high-energy perforating missiles. I have already mentioned that, after his arrest, the appellant was examined by Dr Anderson. Dr Anderson asked him how he got the scars and was told that he had got them "from a fence". (This, of course, was almost certainly a lie, although that it betrayed a consciousness of guilt or, at least, that they were gunshot wounds did not appear to be part of the Crown case.) His own view was that they were consistent with entry and exit gunshot wounds occurring approximately two to six months prior to his examination. He conceded in cross-examination that his experience with gunshot wounds was not great. However, it was not suggested to him either that the wounds were not gunshot wounds nor that they were the result of injury by some object such as a fence. Although the experts called by the Crown did not, in terms opine that the injuries could not have been so caused, the clear thrust of their evidence was to contradict this possibility. 63 We turn now to the manner in which his Honour directed the jury they should determine the facts. The starting point was the conventional direction given by his Honour drawing the distinction between proof of guilt beyond reasonable doubt and proof of the facts in issue - The Crown, of course, does not have to prove beyond reasonable doubt everything about which there is any question in the course of this evidence in this trial. What the Crown does have to prove beyond reasonable doubt are what are called the essential elements of the crime. You see in law each crime, and the charge which results from it, has a certain number of ingredients if you like, constituent parts, and we call them essential elements. Those are what the Crown has to prove beyond reasonable doubt. If it does that, then the Crown is entitled to require you, in accordance with your oath, to convict. If any of those essential elements is missing in the sense of not being proven beyond a reasonable doubt, then again in accordance with your oath you must acquit. 64 So far as the gloves were concerned, his Honour said to the jury - Whatever their nature they are certainly common. You would need to be satisfied that the gloves that Mr Yarrow saw on the man crossing the road are the gloves that were found under the car. Indeed, you would need to be satisfied I suppose that gloves were used in the robbery. It is only Mr Yarrow who sees them, sees gloves anywhere in that area if you like, or at that time. Nobody else saw them. 65 His Honour then briefly summarised the evidence concerning what the witnesses had seen that the man said to have been wearing the gloves and continued - In any event, it appears to be accepted, there was no cross-examination of any of the experts, that it was in fact the fingerprint of the accused on the glove. If you were persuaded that the glove was used in the robbery, then that would be, you might think, a powerful finger towards the accused having been involved in the robbery. 66 In dealing with the scarring, it seems that the directions assume that the only issue was whether the scarring was consistent with what one would expect from a .38 calibre bullet and whether the wounds were consistent in time with the robbery. In posing these issues for the jury, his Honour did not advert to the standard of proof, referring only to acceptance of the evidence of the doctors and the finding that the wounds might have been inflicted at the time of the robbery. His Honour then pointed out that the defence contention was that even if the jury "were persuaded" that the scars were caused by bullet wounds, they "would not be persuaded" that the wounds had been inflicted at the time of the robbery. 67 That is not quite how the matter was put by the Crown. Of course, if the jury were satisfied beyond reasonable doubt that the bullet wounds were inflicted by Malone, it would necessarily follow that the appellant was, in fact, involved in the robbery and was guilty as charged. The crucial questions were whether they were satisfied that the scarring was caused by bullets, that it was caused by bullets which may have been .38 calibre and at a time which was consistent with having been caused in the robbery. When those factors were added to Malone's evidence of his attempt to shoot the offenders, his skill as a marksman, the ballistics evidence and the discovery of the glove with the appellant's fingerprint on it, found in the circumstances to which we have adverted, the Crown case was capable of being seen as a strong one. 68 The clear thrust of his Honour's directions as to these matters was that they would not find the accused guilty unless they were persuaded of the facts that the unidentified robber had been wounded by gunshots, the appellant's wounds were caused by gunshots, that they were consistent with infliction by .38 calibre bullets, that they may have been inflicted at the robbery, that the glove bore the fingerprint of the appellant and that it was worn by the unidentified robber. 69 It is important not to be carried away by the power of metaphors but, in the context of this case, we think that whilst it is possible to consider this concatenation of facts as strands in the cable, it was also possible, quite reasonably, to consider one or more of them as links in a chain, that is to say indispensable to a conclusion of guilt. These facts also varied, so far as the evidence went, in the probability of their occurrence. We do not intend to analyse in detail the ballistics' evidence. However, when considered with the eyewitness accounts, in our opinion, it was open to the jury to conclude that the unidentified offender had suffered gunshot wounds. We also consider that the jury could have been satisfied beyond reasonable doubt that the glove had been deposited by the fleeing offender. The importance of the scarring arose because it linked the accused to the robbery. Without it, the Crown may have been unable, in the jury's view, to disprove the hypothesis that a close associate of the accused (for example) may have used the accused's gloves for the purpose of the robbery. (Incidentally, that might explain why he did not wish to give evidence.) 70 Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be, intermediate facts "which constitute indispensable links in a chain of reasoning towards an inference of guilty" (Shepherd 170 CLR per Dawson J at 579). It is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. This is implicit in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 (eg per Gibbs CJ and Mason J at 535, 537-538, Deane J at 626-627) and see Shepherd 170 CLR 573 per Dawson J at 583 and 585, McHugh J at 592 and 594.) It is important to note, as McHugh J said in Shepherd, 170 CLR at 593, that Chamberlain was concerned with whether the verdict was unsafe or unsatisfactory, not with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case. In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting. If the case is one where, in the judge's opinion, there were no such crucial intermediate facts, it "will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence" (Shepherd 170 CLR at 579 per Dawson J), directions which were given by his Honour in this case. It is clear that there were in this case many individual items of evidence themselves going to establish an important fact. Thus, the finding of the beanie in the getaway car which was indistinguishable from that found in the carpark, enabled the conclusion to be inevitably drawn, when added to the evidence of Mrs Hawker, that the latter had been used by the unidentified robber and the fact that gloves were found in the getaway car together with the similar beanie was a significant indicator that the gloves found with the other beanie had also been used by an offender. McHugh J pointed out, in Shepherd (at 170 CLR 592) that "there are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances is greater than the probability of the truth of any of the individual circumstances". Although "in a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt" which is "likely to be the case where the incriminating facts relied on to establish the inference are few in number". (See, also, Dawson J, 170 CLR at 579). 71 Having regard to the relatively few incriminating facts in this case, we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict. We do not think that this was a case of such simplicity as to enable a general direction concerning the onus and standard of proof to suffice. This was especially so, in our view, because of the conventional direction that drew the distinction between proving guilt beyond reasonable doubt on the one hand and establishing individual facts by reference to other different but unexplained standards on the other and the other proper directions as to the relevance of the appellant's silence. 72 The matters which, in our opinion, should have been identified as intermediate facts requiring proof beyond reasonable doubt were: firstly, that shots had been fired at the offenders at the time of the robbery capable of wounding both offenders; secondly, that a fleeing offender had deposited under the car a white latex glove carrying the accused's fingerprint; and, thirdly, that the accused had scarring caused by bullets consistent with being of .38 calibre and with having been inflicted at the time of the robbery. 73 We should mention the identification evidence. As will have been noticed from our brief account, the descriptions given by the eye witnesses of the offenders and their clothing differed in a number of respects. In the circumstances, this was not surprising. Certainly nothing in this evidence pointed to the accused. Insofar as it was inconsistent with his appearance, the jury needed to evaluate it together with all the other evidence. But it was not, to our minds, of such a character as to render the verdict unsafe. 74 Ground of appeal 5 is as follows - His Honour erred in law in the directions given to the jury in relation to the effect of the accused's silence and the degree of proof required in a circumstantial case. 75 In the circumstances, it is unnecessary to deal further with this ground. 76 The final ground of appeal is that the conviction is unsafe and unsatisfactory. In the circumstances of this appeal, this issue falls to be decided in the context of whether or not a new trial should be granted. As was said in M v The Queen (1994 181 CLR 487 at 492), the question whether a verdict is unsafe or unsatisfactory is "one of fact which the court must decide by making its own independent assessment of the evidence". We do not think it necessary to analyse the evidence in greater detail than has already been done. It is sufficient, we think, to say that we are of the view that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. 77 Accordingly, we allow the appeal and order a new trial. Judgment on Sentence 78 (For convenience, we will continue to refer to Mr Merritt as the appellant although, of course, with respect to the sentence appeal, he is the respondent.) Immediately following his trial for charges arising out of the attempted armed robbery, the appellant stood trial before the same judge upon a charge of escaping from the Industrial Training Centre, Long Bay Correctional Complex on 30 August 1995. The evidence against the appellant, though brief, was overwhelming. The trial only took one day and the appellant was convicted. Following a hearing on sentence on 9 December 1997, the appellant was sentenced on 11 December 1997 as follows - (i) with respect to the escape offence, a fixed term of imprisonment of twelve months commencing 2 October 1997 (the date of the expiration of the minimum term of his last imposed sentence) and expiring on 1 October 1998; (ii) with respect to the attempted armed robbery with wounding offence, 14 years' penal servitude to commence on 2 October 1998 comprising a minimum term of 9 years and an additional term of 5 years; being eligible for release on parole on 1 October 2007; and (iii) with respect to theft of the motor vehicle, to a fixed term of imprisonment of twelve months to be served concurrently with the second sentence referred to above. 79 By notice of appeal dated 4 May 1998, the Director of Public Prosecutions gave notice that he wished to appeal against all the sentences imposed by the District Court on the ground that they were inadequate. There was some delay in obtaining a transcript of the remarks on sentence, which were not received by the Director of Public Prosecutions until 4 March. However, the delay of two months in filing the Notice of Appeal is unexplained and inexcusable. 80 This appeal is complicated by the quashing of the convictions for attempted armed robbery and theft, leaving only the sentence in respect of escape unaffected. The Director has appealed also against the adequacy of that sentence. His Honour the sentencing judge fixed the sentence for escape independently of the appellant's other convictions, saying when he did so - ...I accept...that I should not regard the fact that the prisoner committed these other serious crimes whilst an escapee as being somehow an aggravating element in the escape itself. It is correct to say that had he done nothing at all untoward during his stolen freedom he would nevertheless have been guilty of a crime which is regarded as serious, that of escape, and he would have stood for sentence for that. In order to ensure that it is seen that I have not allowed the sentence for escape to be in any way coloured by his activities whilst an escapee I have fixed a sentence somewhat less than would otherwise have been the case. 81 The circumstances of the appellant's escape were unremarkable. He had managed, by some means or other, to cut some steel bars in the laundry annexed to the wing of the Industrial Training Centre at the Long Bay Correctional Complex at Malabar. Beyond the window is a drop to an exercise yard of about twenty feet and the appellant (in a way not explained in the evidence) made his way through the inner and outer perimeter fences of the prison to freedom. He was arrested by police at Redfern on 10 January 1996. 82 The appellant was born at Erambi Mission near Cowra, New South Wales, on 15 December 1949, but was raised in the inner city in Sydney. Nothing of his life was elicited in evidence except those facts and an appalling criminal record commencing with dishonesty charges in 1962. He was first committed to an institution in August 1964, shortly before his 15th birthday. In May 1969, he was sentenced to a term of imprisonment for theft of motor vehicles and to charges of breaking, entering and stealing and thereafter, almost from year to year, received prison sentences for theft and many counts of breaking, entering and stealing together with more worrying charges such a having explosives in possession (March 1973), possession of an unlicensed pistol (August 1973), armed assault with intent to rob whilst wounding (October 1976), armed robbery (June 1980, September 1984 October 1985). The appellant was convicted of escaping lawful custody in September 1973 and sentenced to a term of 6 months' imprisonment with a non parole period of three months, with further convictions for escaping in April 1980 (two) and March 1993. In respect of the last charge of escape, he was sentenced to a fixed term of eighteen months. 83 The appellant, in giving evidence on the sentence proceedings, said this - MILES: Q. What is your full name? A. Noel Richard Merritt. Q. And you are in custody. I'm representing you as you know on the escape from custody and I just want you to tell his Honour what, just in your own speech, but coolly and calmly could you tell his Honour what's gaol has done for you? A. Well gaol's gave me the ability to focus on reality whenever reality presents itself and it puts enormous amount of mental pressure on people's minds, especially on my mind. I find it naturally the only basis reverse psychology exercises to make you feel as though gaol is a normal state of living and it's not, it's not my culture, it's not my personal culture, it's not my personal belief, I don't believe in prisons, I never have and never will. I don't believe in the propaganda mentality that exists in the prison institution under the pretence they're create mental health for every individual that's sentenced to a custodial sentence, it's not true. People start to suffer from emotional mental disimpairment on a actual daily basis in gaol but I don't consider myself to be one of those people who suffer from mental impairment and I find that as far as having your intelligence underestimated on an actual daily basis, I've been in gaol for an X amount of years, I've had a Royal Commission in the 90s and they are still my allegations that I shouldn't have been convicted whether it's been institutionalised corruption and police corruption in regards to the allegations and the convictions given against me creating a criminal history in regards to me and the circumstances that come from all that institutionalised corruption and facts corruption as the investigation by the Royal Commission into corrupt conduct by police, if the research is done correctly by my legal advisers they could have, they could have had those facts here that could have assisted your Honour in assessment of how he's going to deal with me and whether or not he's going to take my life from me or whether he's going to give me an opportunity to be released from the prison institution legally so that I can adapt to a healthy, legal state of existence. I can create a lifestyle for myself and get on with my life. Q. Well, that's your state of mind now, on 30 August 1995 - A. I mean that's my state of mind now and that's been my state of mind ever since I entered the prison system. I have never accepted a conviction against me. I've never acknowledged that I was guilty in any way. I'm not guilty, I'm still not guilty and I'll always be not guilty. Q. That was your state of mind on that date in August - A. Yeah, that's my state of mind of that date, that's my state of mind, now, that will be my state of mind ten years, twenty years, that will be my state of mind until the day I die. Q. And when you come out of gaol what do you hope to do? A. What do I hope to do? Q. What do you hope to do? A. I hope to get on with my lifestyle and get to know my family better because taking me away from my family and creating the conditions and subjecting the premeditated tendencies to hinder your communication with your family, like, as if we're all some type of rats under some type of mental scientists, this is a type of mentality and atmosphere you're creating from prison institutions you know. And it's a fact, you know, because I don't bullshit to anyone, I always tell the truth. I never underestimate anyone's intelligence regardless of whether they're in the courtroom or on an actual daily basis. I only speak from what I'm aware of, I never have a, I never will contribute to developing a full sense of mentality or realism in the way I'm relating to people in regards to the truth. 84 The prisoner was represented in the sentence proceedings by Mr Miles who, of course, has had a great deal of experience representing Aborigines. No attempt whatever was made to develop a case that the appellant was subjected to an adverse family background or suffered any psychological, educational or physical disability or that prison put particular pressures on him which might have explained, if it did not excuse, his escape from lawful custody or, indeed, his criminal record in any respect. 85 The considerations which arise when sentencing Aborigines have been summarised by Wood CJ at CL in Fernando (1992) 76 A Crim R 58 at 62 ff, which we adopt. The first of the considerations mentioned by his Honour is as follows - The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group. 86 Reference may also be made to R v Russell (unreported) NSWCCA 15 December 1995, especially per Kirby ACJ at 10ff and Neal v the Queen (1982) 149 CLR 305 per Brennan J at 326. Although the appellant, in effect, asserted that he did not accept that he had broken any law which applied to him, this seemed rather to depend upon his personal views about the utility of imprisonment and what he saw as the injustice of the legal system's reliance upon "institutionalised corruption and police corruption in regards to the allegations and convictions given against me" than any political philosophy. During the appellant's trial he said, in effect, that gaols were imposed by a "foreign culture" but emphasised rather his personal attitude to gaols. Thus, this evidence was given - MILES. Q. Do you consider yourself to be a member of the Australian white society? A. I consider meself to be full membership of the Australian community. I consider meself to have full membership of New South Wales. Although I have been denied by the courts, I may add, that membership. Q. I gather from what you say that you believe that you were not in lawful custody? A. Well, I believe it was my right not to remain in custody. Q. Why? A. Well, I don't consider meself to be institutionalized. I don't consider myself to accept gaol, or a gaoled environment, as a normal state of existence for me. It is a very foreign existence. I am not at all familiar with it. I tolerate it, but I don't accept it. Q. Do you believe, as part of your Aboriginal culture, that people should be imprisoned.? A. It is certainly not my culture. I gave no consent to any person in this country to build any gaols in our state or country. I was never consulted. Indigenous people were never consulted as to whether they wanted gaols in this state or country. I don't agree with gaols. Gaols, it is not my culture. It is some foreign culture. Look, I am entirely different mentally. My general attitude is entirely different from anyone that I know. Gaol is a foreign natural state of existence. It is a foreign community. It is something that I don't agree with. It is something that I don't see any good coming out of it, not for anyone. Gaol is an artificial propaganda existence to any person. It is certainly a very violent community. People like yourself who like putting people in gaol, you realise you cannot take society from society. One day you are going to have to deal with that, just like you are dealing with it now. Q. Is there anything further you want to say about this situation? A. It is very, it is, it doesn't seem normal for me to be sitting here charged with escape from lawful custody when, given my background, the amount of time in gaol on a conviction where my argument and request for justice, and for the right authorities to release me from the New South Wales prison system, given me a great opportunity to contribute to not only the well-being of myself, but society and my only community. All this legal opportunity has been denied me since January 1983. That is how long I have been in the New South Wales prison system. I have never been released since January 1980, legally. The things that I am saying is a fact. There is nothing here that holds me in the prison system that is a justifiable and legal terms. ... 87 As the appellant has been in prison almost continuously since 1980 and there was no evidence before the sentencing court as to his personal history, let alone to suggest that the Aboriginality of the appellant had any significant impact on his actions, we think (to adopt the language of Kirby ACJ in Russell) it is appropriate to take the appellant's Aboriginality into account in a general way rather than to find any particular basis for mitigation. In Russell, Kirby ACJ mentioned a further matter which provides part of the relevant sentencing context and that is the "general concern of the community, shared by the judiciary, that there are extremely high proportions of Aboriginals in prison", concluding - Although, quite clearly, a custodial sentence was appropriate and necessary in the present case, the usefulness of long custodial sentences for Aboriginal offenders must increasingly be called into question in light of the Royal Commission and the other reports, produced in recent years. 88 The maximum term of imprisonment for the offence of escaping from lawful custody, as provided by s 34 of the Correctional Centres Act 1952, is penal servitude for ten years. 89 In R v Thompson (unreported NSWCCA 21 May 1996), the Court of Criminal Appeal considered an application for leave to appeal against a sentence of two years passed upon the appellant after he pleaded guilty to escape from lawful custody. The conviction was pursuant to s 34 of the then Prisons Act which provided for a statutory maximum sentence of seven years' penal servitude. Street CJ observed that judges were "not free to disregard the import of the legislature's prescription of seven years at the maximum" and went on to say - The ordinary level of sentence for what might be called an unremarkable escape should be expected to approximate two years. This ordinary expectation is to be recognised and observed by sentencing judges in order both to bring regularity into the treating by criminal courts of this offence and also in order to mark the importance of general deterrence. 90 Of course, it is necessary to bear in mind that these observations were made in a sentencing context prior to the enactment of the Sentencing Act 1989 so that the period of two years was what used to be called the "head sentence" and left the specification of a parole period very much in the discretion of the sentencing judge. 91 It would be completely inappropriate to punish the appellant more harshly for having expressed his defiance of the law and attempting to justify his behaviour by rejecting the notion that by committing crimes against his fellow citizens and escaping from lawful custody he had done something wrong. At the same time, the mitigation is lacking that would otherwise be present where there is genuine contrition to ameliorate the severity of a sentence determined largely (but not completely) by the objective seriousness of the offence, the need to protect the community and the requirement of general and personal deterrence. 92 Having regard to the appellant's recidivist history in relation to escaping from lawful custody and the lack of any mitigatory explanations that might reduce the seriousness of the offence, we are of the view that, giving due consideration to the maximum penalty provided by law, the sentence passed by the court below was so lenient as to indicate a failure by the learned sentencing Judge properly to apply his discretion. 93 It has been submitted in this Court that the sentencing Judge should have taken into account the fact that very serious offences were committed by the appellant while he was at large (see, eg, R v Thompson infra). However, it was, as a practical matter, reasonable for his Honour to sentence the appellant independently in respect of the escape but then take into account in sentencing him in respect of the other offences that they were committed whilst he was an escapee and, moreover, had escaped from serving a lengthy term of imprisonment for armed robbery, bearing in mind of course that, at the end of the day, the principle of totality needed to be applied to the sentences to ensure that any accumulation did not impose an unjustly harsh total sentence, that is, one which was not warranted by the criminality of the appellant considered as a whole. 94 Whilst it may be accepted with regret that custody in gaol has an "oppressive and brutalising effect...on inmates" (NSWLRC DP 33 para 3.26) and overcrowding and lack of rehabilitation, psychological and educational programmes and facilities are endemic, the courts are duty bound to pass sentences that reflect the seriousness of crimes and may operate to deter offenders. This must be done in a measured, reasoned and humane way, responding neither to political or media hysteria on the one hand nor unreal notions of reformation and the irrelevance of deterrence on the other. 95 In our opinion the appropriate sentence for escape to be imposed on the appellant, modified downward in accordance with the usual rule applying in this Court to resentencing following successful appeal by the Crown, is a term of three years imprisonment, comprising a minimum term of twenty months, commencing 2 October 1997 and expiring on 1 June 1999 and an additional term of sixteen months commencing 1 June 1999 and expiring on 1 October 2000. Having regard to the criminal history of the appellant, his Aboriginality and the delay in filing the Notice of Appeal, we consider that special circumstances exist warranting a departure from the statutory relationship between minimum and additional terms. 96 Should the appellant be retried and again convicted the sentences then to be imposed will need to take into account the principle of totality. However, we would not wish that anything that we have said to lead the court then charged with the duty of sentencing the appellant to assume that the sentences passed by the District Court in respect of the outstanding charges were appropriate. To the contrary, we are of the view that the argument that they were unjustifiably lenient to be a strong one in light of the appellant's criminal history, the maximum sentences provided by the Parliament and the extreme seriousness of the circumstances of the robbery offence which place it well towards the upper end of seriousness for this kind of crime. We mention this only because, in the event of a new trial and fresh convictions, the court will need to consider the application of Gilmore (1979) 1 A Crim R 416 and Bedford (1986) 28 A Crim R 311.

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REGINA v MERRITT

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