REGINA v. VINCENT [2002] NSWCCA 369

COUNSEL : Mr. A. Haesler with Mr. D. Weir for appellant Mr. G. Rowling for Crown SOLICITORS : D.J. Humphreys for appellant S.E. O'Connor for Crown CATCHWORDS : CRIMINAL LAW - EVIDENCE - Hearsay - Whether admissible - Whether unreliability warning required - Lies - Whether relied on only as to credibility - Whether directions adequate. LEGISLATION CITED : Evidence Act ss.59, 62, 65, 165 Bromley v. The Queen (1986) 161 CLR 315 Champion (1992) 64 ACrimR 244 Edwards v. The Queen (1997) 178 CLR 193 House v. The King (1936) 55 CLR 499 M v. The Queen (1993) 181 CLR 487 Osland v. The Queen (1998) 197 CLR 316 R v. Baartman [2000] NSWCCA 298 CASES CITED: R v. Fahda [1999] NSWCCA 267 R v. Henry (1999) 49 NSWLR 346 R v. Hodge [2002] NSWCCA 10 R v. Nemeth [2002] NSWCCA 281 R v. Oveido-Portela NSWCCA 17/12/93 R v. Smith (1987) 44 SASR 587 R v. Stewart (2001) 52 NSWLR 301 R v. TJF (2001) 120 ACrimR 209 Zoneff v. The Queen (2000) 200 CLR 234 DECISION : Appeal againt conviction dismissed.; Leave to appeal against sentence refused.

IN THE COURT OF CRIMINAL APPEAL CCA 60104/02 DC 01/11/0881

HODGSON JA SIMPSON J SMART AJ

Friday 6 September 2002 REGINA v. Benjamin Michael VINCENT Judgment 1 HODGSON JA: On 4 January 2002, the appellant was arraigned in Sydney District Court before Dodd DCJ on a charge that he: On 14 May 2001 at Bellevue Hill in the State of New South Wales, did rob Magdi Raphael of certain property, namely certain moneys, the property of Magdi Raphael, and at the time of the robbery used corporal violence on Magdi Raphael.

The appellant pleaded not guilty, and there ensued a trial lasting three days before Dodd DCJ and a jury, resulting in a verdict of guilty on 16 January 2002. 2 On 1 March 2002, the appellant was sentenced to a term of imprisonment of six years to date from 14 November 2002 and to expire on 13 November 2008, with a non-parole period of three years to date from 14 November 2002 and to expire on 13 November 2005. Commencement of this sentence followed the end of a sentence for a term of imprisonment of eighteen months imposed at the same time for an offence of attempting to dispose of stolen property, to which the appellant had pleaded guilty. 3 The appellant appeals to this Court from his conviction, and seeks leave to appeal from the sentences.

CROWN CASE 4 Evidence was given by Magdi Raphael to the effect that at about 10.40am on 14 May 2001, he was robbed in his chemist shop of over $500.00 by two men. This was not disputed at the trial: the only question was whether or not the appellant was one of those men. 5 Mr. Raphael gave evidence that, after the two men left his shop, he stood up and went to the front of the shop where he found a young lady pushing a stroller. She asked him "Are you hurt?", and he said he was alright. She then said "I've got the car number, rego it's RRB 373". He wrote down the number, and she said "It's a red car". The young lady went away, not having given her name or address or phone number, and she has not since been identified or located. Mr. Raphael telephoned the police, who arrived after about 35 minutes. 6 Mr. Raphael gave evidence that one of the men was of thin build, possibly a Maori or Islander, wearing a bluish tracksuit with a hood over his head; and the other was Caucasian, bigger, wearing a grey tracksuit. 7 Constable Julie Rose Wild gave evidence that she arrived at the chemist shop at about 11.20am on 14 May 2001, and soon afterwards broadcast over police radio the details concerning the car and the offenders given by Mr. Raphael. 8 Detective Senior Constable Roger Borgas gave evidence that at about 1.55pm on 14 May 2001, he saw a red Holden Commodore with number plates RRB 373 in Roseville, and stopped his car in front of it. There were two people in the car: the driver, a Caucasian male, and a passenger apparently of Mediterranean descent. The passenger escaped, and the driver (the appellant) was arrested. Detective Borgas described his clothes as light blue track pants, a light coloured t-shirt, a lighter blue Polo-type shirt and a charcoal grey zip jacket. The car was damaged and appeared to have been hot-wired. 9 Similar evidence was given by Senior Constable Michael Crowther, who accompanied Detective Borgas at the time. 10 Senior Constable Jacqueline Hadden gave evidence that property taken from the appellant at Chatswood Police Station included ninety cents and a grey jacket. 11 This grey jacket became Exhibit A in the case. Also exhibited in the case were photographs of the car taken at the time of the appellant's arrest, in which the appellant was just visible lying on the ground behind the car, and apparently wearing a jacket. 12 Fausto Ciaglia gave evidence that he was the owner of a 1998 red Holden Commodore registered number RRB 373, which was stolen from outside South Sydney Junior Leagues Club on the afternoon of 11 May 2001. It was not seen again by him until 15 May 2001, when he saw it at Chatswood Police Station.

APPELLANT'S CASE 13 The appellant gave evidence that he was not involved in the robbery. He said he did not leave his home at Surry Hills on 14 May 2001 until about 12 noon. At about 12.30pm he met a friend Rob Kelly, and they discussed a Commodore vehicle which they saw parked near Redfern Park. They took the car, intending to sell its interior. 14 When he was later arrested in the Roseville area, he was, he said, wearing tracksuit pants and two t-shirts. He said he was not wearing a grey jacket, and that he had not previously seen the jacket Exhibit A in the case. He said that he remembered that Rob Kelly was wearing a blue-coloured tracksuit.

GROUNDS OF APPEAL 15 The appellant relied on the following four grounds of appeal against his conviction: 1. His Honour erred in failing to warn the jury that the hearsay evidence may be unreliable. 2. His Honour erred in his directions to the jury on lies. 3. The conviction was in all the circumstances unreasonable and cannot be supported by the evidence. 4. His Honour erred in admitting the hearsay evidence. 16 The appellant also sought leave to appeal against the sentences, on the ground that they were excessive.

ADMISSIBILITY OF HEARSAY 17 The fourth ground of the appeal requires consideration of ss.59, 62 and 65 of the Evidence Act 1995, which are in the following terms: 59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

62(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. 18 Mr. Haesler for the appellant submitted that the hearsay evidence concerning identification of the car and registration number could not properly have been admitted unless a conclusion was drawn on the balance of probabilities that it was first hand hearsay, and that conclusion had to be drawn to the Briginshaw standard (see Briginshaw v. Briginshaw (1938) 60 CLR 336). There was in fact no basis for that conclusion to be drawn. 19 In my opinion, although in a general sense the case of Briginshaw is relevant as requiring the Court to be satisfied about a matter, the requirement of particular care before a finding is made of discreditable conduct by a person is not relevant to this question. It is true that the finding is in a sense one step towards the finding of a criminal offence by the appellant, but that consideration does not directly weigh in consideration of the balance of probabilities concerning whether the hearsay in question was firsthand hearsay. 20 The question is whether the trial judge was justified in finding that the facts asserted to Mr. Raphael by the woman were, or might reasonably be supposed to be, based on something she herself saw. In my opinion, the very short lapse of time from the robbery to the conversation, the circumstances of the conversation, and the words actually used do make it more probable than not that the woman was asserting something that she herself had observed. It is of course possible that she was merely reporting something told to her by someone else, but the categorical assertions "I've got the car number" and "It's a red car" are to my mind more suggestive of her own observation of the matter. 21 In any event, the same considerations to my mind are plainly sufficient to satisfy the requirement that the matters asserted "might reasonably be supposed to be" based on her own observations. 22 Accordingly, this ground of appeal fails.

DIRECTIONS CONCERNING HEARSAY 23 This ground requires consideration of s.165 of the Evidence Act, which is in the following terms: 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B. 24 A request was made for a s.165 direction in relation to the hearsay evidence from the woman concerning identification of the car. The trial judge refused it, on the following basis: HIS HONOUR: I understand your submission and I certainly understand the reason you make it, however I am not going to give a warning or a caution pursuant to section 165 in respect of that evidence for the reason that in my view the nature of the hearsay is such that it is likely and in fact, in my view, highly probable - the nature of the hearsay and the circumstances in which it was made make it likely and in fact highly probable that the evidence is reliable and certainly it is far removed from being evidence of a kind that may be unreliable as required under section 165 and in my view I would have great difficulty in formulating a discussion of the matters that might cause it to be unreliable in the circumstances such as is required is to be done under section 165(2)(b). Therefore under section 165(3) in my view there are good reasons for not giving the warning under subsection (1). I note that subsection (3) speaks of complying with subsection (2) which is a strange way of putting it, particularly if a judge comes to the conclusion that the evidence is not of a kind that may be unreliable. Subsection (3) would be better worded in terms of a judge declining to act in accordance with the request that's made, but I don't suppose it matters a great deal. 25 Mr. Haesler submitted that hearsay evidence may be unreliable because it is subject to any weaknesses of perception, memory, narration skills and sincerity of both the original observer and the person reciting the statement, these weaknesses thus being combined or compounded; it is not subject to testing by cross-examination; it is not made in a Court environment; and it is not on oath. The circumstance that the evidence might be seen as reliable by a jury is in fact a good reason for giving a warning, because the jury might not appreciate the reasons why the evidence might be unreliable which judicial experience has demonstrated. There was, for example, no way of knowing whether the identification of this particular car as the car in which the robbers escaped was soundly based. Mr. Haesler relied on R v. TJF (2001) 120 ACrimR 209, R v. Stewart (2001) 52 NSWLR 301, R v. Nemeth [2002] NSWCCA 281, Bromley v. The Queen (1986) 161 CLR 315 at 325, and R v. Baartman [2000] NSWCCA 298 at [68]. 26 Mr. Rowling for the Crown submitted that, in order to decide that the hearsay evidence was admissible, the trial judge found that the representation was made when or shortly after the asserted fact took place and in circumstances that made in unlikely that the representation was a fabrication (s.65(2)(b)) and that the representation was made in circumstances that made it highly probable that it was reliable (s.65(2)(c)). Those findings were open, and, having made those findings, it was open to the trial judge to decide that there were good reasons for not giving the warning referred to in s.165(2), and to exercise his discretion under s.165(3) of the Act not to give such a warning. This Court should not interfere: House v. The King (1936) 55 CLR 499 at 504-5. The circumstances identified as requiring a warning in TJF (2001) 120 ACrimR 209 at [55] and R v. Nemeth [2002] NSWCCA 281 at [7] did not apply to this case. 27 In my opinion, it was open to the trial judge to conclude that the representation was made in circumstances that made it unlikely that it was a fabrication and also highly probable that it was reliable; and it was open to the trial judge to conclude that, for those reasons, a s.165 warning was unnecessary. Accordingly, I am not satisfied that the trial judge was in error in failing to give a s.165 warning, so this ground of appeal also fails. 28 I would add that, even if a warning had been given, an appropriate warning would have been qualified by reference to the factors supporting the reliability of this particular hearsay evidence, and also to its corroboration by the circumstance that a red motor vehicle bearing the specified number plates had in fact been stolen not very many kilometres from the site of the robbery a few days earlier and remained stolen at the time of the robbery. I also note that submissions were made by Counsel for the appellant to the jury as to why they should not be satisfied by the hearsay evidence, and those submissions were put to the jury by the trial judge in a way not criticised by Counsel for the appellant, except in the sense that they were not given the imprimatur of the trial judge and were not associated with a warning under s.165. 29 In those circumstances, it is clear in my opinion that the absence of a warning did not in any event deprive the appellant of a reasonable chance of acquittal.

DIRECTIONS ABOUT LIES 30 The appellant gave evidence that he was wearing two t-shirts and no jacket when arrested, and that he had never previously seen the jacket tendered in evidence. In cross-examination, there was the following question and answer: Q. And the reason that you're now saying that you weren't wearing that jacket is because you don't want to be seen in that jacket as described by Mr. Raphael, as a man wearing a jacket and a hood. Isn't that the reason you're not telling the truth now?

A. No, I was not wearing the jacket. 31 Subsequently, the Crown Prosecutor cross-examined the appellant on the two photographs referred to earlier, suggesting that they showed the appellant wearing the grey jacket, and the Crown Prosecutor put to the appellant that he was wearing this jacket when he went into the pharmacy, with the hood up. The appellant denied that he went into the pharmacy and denied wearing the jacket. 32 In the summing up, the trial judge directed the jury that they should not reason that, because the appellant was prepared to drive a car he knew was stolen and sell parts of it that were not his, he committed the crime of which he was accused. 33 In relation to the jacket, the trial judge said this about one of the circumstances upon which the Crown relied to establish its case: The Crown also says that you would come to the conclusion on the evidence that at the time of his arrest the accused was wearing the grey jacket or tracksuit top or whatever you would like to call it which is exhibit A in these proceedings. I will come back to that, but the Crown says that you would be satisfied that in fact he was wearing that at the time of his arrest and that you would therefore come to the conclusion that when he says he was not wearing it at the time of his arrest he is lying and that you can use the conclusion that he is lying in that respect in assessing whether you believe him in other respects on his evidence and in particular whether you believe him when he says he did not take part in the robbery. In effect, the Crown says well if he is lying about whether he was wearing that grey top, that piece of apparel, then it is also likely that he was lying in other essential respects and in particular about whether he took part in the robbery and you would not believe him when he says he did not take part in the robbery, you would not believe him when he tells you of the way in which he came to be driving that vehicle at the time of his arrest. 34 A little later, the trial judge returned to this topic, as follows: The Crown then says to you, if you are satisfied that that was in fact the getaway vehicle you will be satisfied that it was the accused who took part in the robbery, essentially for two reasons. Firstly, that he was driving it within three hours of the robbery having taken place and because of the evidence about the grey top which is Exhibit A. The Crown says if you had any doubt before that evidence was given that you would not have any doubt after that evidence was given about the grey top which is Exhibit A. That you would be satisfied that in fact he was wearing that jacket at the time of his arrest, firstly because the police give evidence that he was wearing it, secondly, they logged it in along with his other property as belonging to him and having been found with him, and the Crown says what other explanation is there for them giving that evidence or logging it in, in that way, if in fact he was not wearing it. Then the Crown says you have got photos which are Exhibit C and Exhibit D to look at which indicate that he is wearing something over the top of any T-shirt such as has been described and was agreed that he was wearing and that although it is difficult to see exactly what it is that he is wearing as that upper garment it is consistent with it being Exhibit A and it is certainly something other than a T-shirt. So on that basis the Crown submits to you that he is not telling the truth when he says he was not wearing Exhibit A at the time of his arrest and as I have already indicated before the Crown then argues that you take that into account when assessing his credibility generally. The Crown says he is lying about that because he is lying about his participation or his non participation in the robbery. 35 At the end of the summing up, there was discussion between the trial judge and counsel, in the course of which the following exchange occurred: MAYNE: As your Honour pleases. The other point which I would raise, your Honour, is in relation to what has been said by the Prosecution, by the learned Crown, and in effect put to the jury as part of the Crown case by your Honour, on the topic of the jacket and the suggestion obviously from the Crown the accused was lying about the jacket. Now in my submission it is necessary in the circumstances in which that topic has developed and the way it was put by the Prosecutor that your Honour direct the jury that the mere fact if they find it as so that they reject the accused on the topic of the jacket does not lead to or does not follow that the accused's evidence is to be rejected in other material facts.

HIS HONOUR: I have already said that in general terms, that they can reject or accept, that's all in the general directions. I think that's quite clear.

HIS HONOUR: I only put it in terms of an argument by the Crown.

CROWN PROSECUTOR: I'd seek to be heard on that point raised by my friend. I actually would join in my friend for that last point, having thought about it, but just from this point of view, I think your Honour very correctly gave the direction as how it could be used for credibility and how they could accept and reject. The only concern I have now, thinking about it having been raised by my friend, may your Honour should go further to say that even if they reach a conclusion the accused was lying about that point, about the jacket, that of course does not substitute for his guilt, it remains the Crown's job at all times to prove its case beyond reasonable doubt, just so that it is clear that they don't go back and use the line of reasoning he lied about that he must be guilty. 36 This gave rise to a further direction in the following terms: The second thing that I should say to you is in the context of the discussion of what the Crown puts to you as a lie by the accused when he said that he was not wearing the jacket, Exhibit A, at the time of his arrest. If you come to the conclusion, in agreeing with the Crown submission, that he was lying when he denied that he was wearing that at the time of his arrest, then I said to you you could take that into account in assessing his credibility generally. What you must not do is to take it from that conclusion that he is necessarily guilty of the offence with which he is charged. Just because he tells a lie in the witness box does not necessarily lead to that conclusion and you still remain to be satisfied beyond reasonable doubt on the Crown case, as a whole, having assessed his evidence in the light of the lie, if you come to that conclusion, and all of the other evidence that the Crown case has been made out beyond reasonable doubt.

No further complaint was made on this matter. 37 Mr. Haesler submitted that the trial judge put the alleged lie about the jacket as not merely going to credibility, but as giving some positive support to the Crown case; and did so without giving warnings as required by Edwards v. The Queen (1997) 178 CLR 193. The additional direction did not withdraw the previous directions, but indeed compounded the situation in that the reference to "necessarily guilty" suggested that it may still be some evidence supporting guilt. 38 Mr. Rowling submitted that the Crown relied on the lie only as going to credit, and the directions were correct. He submitted that the further direction was in accordance with Zoneff v. The Queen (2000) 200 CLR 234 at [22]-[24]. Mr. Rowling referred to R v. Hodge [2002] NSWCCA 10 at [24], where there is reference to what was said in Osland v. The Queen (1998) 197 CLR 316 at [44]. 39 In my opinion, the question put in cross-examination carries the suggestion that the appellant was lying because he knew the truth would tend to implicate him in the crime of which he was accused. The direction originally given, to the effect that the Crown said that if the appellant was lying about the jacket it was likely that he was lying about whether he took part in the robbery, did convey to the jury that this lie could give direct positive support to a finding of guilt. The same can be said of the later direction that the Crown said the appellant was lying about the jacket because he was lying about his participation or non-participation in the robbery. 40 If the lie was to be relied on only on the question of credibility, a direction could have been given to the effect that, if by reason of the lie the jury disbelieved the appellant's evidence, they could leave that evidence out of account in deciding whether or not the remaining evidence in the case did establish guilt beyond reasonable doubt. I think that to suggest that the lie in question could support a finding that the appellant was lying when he said he did not commit the offence is tantamount to saying that the lie could directly support a finding that the appellant did commit the offence, which goes beyond using the lie on the question of credibility. 41 When the trial judge gave the further direction, he told the jury that if they considered the appellant was lying about the jacket, they could take this into account on the appellant's credibility, but must not "take from that the conclusion that he is necessarily guilty of the offence with which he is charged". This was not in my opinion appropriate to ensure that the jury did not take the lie as supporting guilt except to the extent that it affected the appellant's credibility: although the jury was told that they could not use the lie to conclude the appellant was "necessarily guilty", they were not told, as suggested by Zoneff, that they should not reason that the lie was evidence supporting a finding of guilt. In my opinion, what was said in Osland at [44] is relevant to this case: 44. Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v. The Queen (1993) 178 CLR 193 at 210-211, per Deane, Dawson and Gaudron JJ. If not, it should be instructed that the evidence is relevant only to the credit of the accused. Only by adopting that course can a trial judge guard against "a perceptible risk of injustice". 42 Thus, there is in this case a real question whether an Edwards direction should have been given. In this case, however, the lie in question was clearly identified, as was the basis on which it could be inferred that the appellant would have known that the truth would tend to implicate him. The jury were not told that there might be other reasons to lie apart from realisation of guilt, such as panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence; nor that, if they considered the lie had such an explanation, they could not regard it as supporting guilt (Edwards at 211). However, in this case the only plausible alternative reason was the second of those mentioned, ie, that, although the appellant did not commit the offence, he lied about the jacket so as to weaken the Crown case that he did commit it and thereby defeat an unjust accusation. 43 In my opinion, the question comes down to whether the failure of the trial judge to identify the way in which the lie might have been relevant to support guilt otherwise than merely through affecting the credibility of the appellant, and to draw to the jury's attention the possibility that such a lie was to protect the accused against an unjust accusation, amounted to an error in the summing up which was material and involved the risk of a miscarriage of justice. On the whole, I am not so satisfied. Quite apart from the alleged lie, it was a strong circumstantial case; and the acquittal of the appellant depended essentially on whether the jury were left with a reasonable doubt as to whether the appellant's account of how he came into possession of the car might possibly be true. The jury must have accepted, as they were entitled to, that the car was correctly identified as the car involved in the robbery; and in those circumstances, unless the jury reasonably considered that appellant's evidence about his acquisition of the car might possibly be true, conviction was almost inevitable. Thus, while a conclusion that the appellant lied about the jacket, and thus had poor credibility, did not directly support a finding of guilt, it gave strong indirect support to it. Furthermore, I do not think the appellant would have been assisted by having the jury asked to focus on the question whether a lie about the jacket would have been to defend himself against an unjust accusation, rather than made out of a realisation that he had worn the jacket and that the truth about the jacket would implicate him. 44 For those reasons, in my opinion this ground of appeal also fails.

UNREASONABLE VERDICT 45 Mr. Haesler for the appellant submitted that the jury verdict was unreasonable and could not be supported by the evidence: Criminal Appeal Act 1914 (NSW) s.6(1). The appellate court must undertake an independent examination of the evidence, and decide whether the jury ought to have entertained a reasonable doubt. In assessing the question, it was proper that the court accepted any doubt which it might experience might be resolved by the fact that the jury was better placed than it, in having had the advantage of seeing and hearing the relevant witnesses: M v. The Queen (1993) 181 CLR 487 at 494. 46 Mr. Haesler submitted that the Crown case was circumstantial, based on the following: two men took part in the robbery; the car RRB 373 was said by the unknown witness to be involved; one of the robbers wore a grey tracksuit top; the appellant was arrested three hours after the robbery, driving RRB 373; the appellant was wearing a grey jacket, and lied to the jury when he said he was not wearing that jacket; and the other man in the car ran off. Mr. Haesler submitted that the identification of the vehicle RRB 373 as that used in the robbery must be viewed with considerable caution given the untested and untestable nature of the evidence; the identification of both the clothing and the race of the robbers was insufficient, in particular in that the man who ran away from the car was not a Maori or Islander nor is the appellant; the grey jacket was not a tracksuit, and it is far from clear that the appellant was wearing such a jacket in the photograph; the lie if proved could only go to credit; the time between the robbery and arrest was too great, and it was reasonable to suppose that the robbers would have abandoned a vehicle used in the robbery shortly after the robbery; and the misdirections and climate of prejudice created by the hearsay evidence outweighed any advantage the jury may have had in assessing the evidence. 47 In my opinion, it was plainly open to the jury to conclude beyond reasonable doubt that the vehicle RRB 373 was involved in the robbery: the hearsay did occur in circumstances very supportive of its reliability, and the fact that a red car with that registration number had been stolen not very far away within the previous few days and was still stolen at the time of the robbery strongly corroborates that evidence. Mr. Raphael gave evidence that one of the men was only possibly a Maori or Islander, and I do not consider that evidence to be inconsistent with the evidence of Detective Borgas that the other person was apparently of Mediterranean descent. Mr. Raphael said this person was wearing a bluish tracksuit, and the appellant said that his passenger was wearing a blue tracksuit. I think the photographs strongly supported the view that the appellant was lying about the grey jacket, and this could have led the jury, along with other material in the case, to be satisfied beyond reasonable doubt that the appellant's version of how he came to be in possession of the car was untrue, making an inference of guilt almost inevitable. I think the lie also tended to support realisation of guilt. 48 For those reasons, I do not consider that the verdict was unreasonable or unsupported by the evidence.

SENTENCE 49 The trial judge noted the criminal record of the appellant, and the seriousness of the offences. He then said this: As well as the pre-sentence report, I also have the benefit of a report of Dr Yolande Lucire, psychiatrist dated 24 January 2002 and a supplementary report from her. There are certain matters in your favour in the pre-sentence report and in particular that you have a very supportive mother and importantly that you have responded well in the past to supervision. You returned to crime after your release in 1997 because you returned to drug use apparently.

Dr Lucire details a history, an unfortunate history, where you had not been well treated in life by life from a very early age. When you were five years old you were involved in a car accident giving you a head injury for which extensive surgery was required to your face and which probably caused damage to your frontal lobes, according to Dr Lucire resulting into a lack of ability to develop a plan for your life, being disorganised and unable to stay in a job for very long and with a poor memory, despite being of average intelligence. Dr Lucire writes that frontal lobe damage does not affect intelligence but causes normally intelligent persons not to function as well as they should. As a result of the accident you were apparently awarded an amount of money in compensation said by you to be some $120,000.

Dr Lucire notes that there is evidence that you suffered a further head injury, a minor head injury following an assault on 22 January 1987 which also occasioned nausea, dizziness and drowsiness. Dr Lucire is of the opinion that except for the initial head injury you might not have engaged in criminal behaviour.

Your psychological condition as a result of any brain damage you may have suffered provides a possible explanation either partially or wholly for your criminal behaviour as does your drug use. The courts have consistently said that while providing a possible explanation for criminal behaviour it is no excuse. Similarly it seems to me that while I must take into account your past medical history and the opinion of Doctor Lucire, I cannot excuse your commission of crimes on that account. 50 Subsequently, he found special circumstances: I find special circumstances by virtue of the matters referred to in Dr Lucire's reports, that is the probable effects of the accident in causing you frontal lobe brain damage and the effects that has had on your personality and by virtue of your previous response to supervision and the need to maximise your prospects of rehabilitation by a longer than usual period of supervision following release from prison. 51 The total of the sentences imposed amounted to seven and a half years imprisonment with a four and a half year non-parole period. 52 Mr. Haesler's principal submission was that the statement likening brain injury to drug use was an error. Although drug use was not a mitigating factor (R v. Henry (1999) 49 NSWLR 346), mental and physical disability can be: Champion (1992) 64 ACrimR 244, R v. Fahda [1999] NSWCCA 267, R v. Smith (1987) 44 SASR 587 at 589; and R v. Oveido-Portela NSWCCA 17/12/93. Such disability may be explanatory of a vulnerability of the accused to participation in the offence, and it may mean that time in jail is more onerous. 53 Mr. Haesler submitted that the trial judge imposed a heavier sentence because of the not guilty plea; and submitted that the sentences were excessive. 54 In my opinion, it is plain that the trial judge did not increase the sentence imposed because of the not guilty plea: he merely noted that the appellant was not entitled to such leniency as he might have been entitled to had he pleaded guilty and shown remorse. 55 In my opinion also, on a fair reading of the sentencing remarks, the trial judge did not equate brain injury with drug use. His statement that he had to take the matter into account, but that it did not excuse his commission of crimes, was correct. Certainly, he took it into account in setting the non-parole period; and I would not infer that he did not take it into account in relation to the head sentence. 56 In my opinion, no error is shown in the reasons of the trial judge, and in my opinion also, the sentences imposed were not outside the range of proper exercise of discretion. 57 The appellant sought to rely on further evidence on the appeal, namely his own affidavit of 19 August 2002, and an affidavit of his solicitor of the same date annexing a report from a psychologist Dr. Susan Hayes, and a number of references. In my opinion, none of this is material which could not reasonably have been obtained for the purposes of the original sentencing, except in so far as it refers to circumstances occurring after the sentencing. In my opinion, it is material that would appropriately be taken into account by this Court only if it came to the view that it should undertake a sentencing exercise by reason of error of the trial judge. Since I have come to the view that there was no such error, it is not necessary to consider this evidence further.

ORDERS 58 For those reasons, in my opinion the appeal against conviction should be dismissed and leave to appeal against sentence should be refused. 59 SIMPSON J: I agree with Hodgson JA. 60 SMART AJ: I agree with Hodgson JA.

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