SALMON v R

Judgment 1HOEBEN JA: Nature of proceedings The appellant was tried by a jury before her Honour Judge Ainslie-Wallace in the Sydney District Court between 7 December 2009 and 15 December 2009. 2The trial indictment pleaded three counts: Count 1: That on 12 March 2009 at Lane Cove the appellant stole a computer, modem and router, the property of Deborah Hill & Co Chartered Accountants. This was an offence contrary to s117 Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. Count 2: That on 12 March 2009 at Lane Cove the appellant assaulted Deborah Hill. This was an offence contrary to s61 Crimes Act 1900 for which the maximum penalty is imprisonment for 2 years. Count 3: That on 12 March 2009 at Lane Cove the appellant robbed Deborah Hill of certain property, namely a laptop computer, the property of Deborah Hill & Co Chartered Accountants. This was an offence contrary to s94 Crimes Act 1900 for which the maximum penalty was imprisonment for 14 years. 3On 15 December 2009 the jury returned verdicts of guilty on counts 1, 2 and 3. 4On 19 March 2010 her Honour sentenced the appellant in relation to those offences to the following terms of imprisonment: Count 1: A fixed term of 1 month commencing 14 December 2009 and expiring 13 January 2010. Count 2: A fixed term of 3 months to commence 14 January 2010 and expiring 13 April 2010. Count 3: Imprisonment with a non-parole period of 12 months commencing 14 March 2010 and expiring 13 March 2011 with a balance of term of 9 months commencing 14 March 2011 and expiring 13 December 2011. 5The aggregate sentence imposed on the appellant consisted of a non-parole period of 1 year and 3 months commencing 14 December 2009 and expiring 13 March 2011 with a balance of term of 9 months expiring 13 December 2011. The appellant was released to parole on 13 March 2011. 6A Notice of Intention to Appeal was filed on 12 January 2010 which was extended to 7 October 2011. On 29 October 2010 a Notice of Application for Leave to Appeal was filed consisting of two grounds of appeal against conviction and four grounds of appeal against sentence. On 30 November 2011 the appellant filed a further document entitled "Grounds of Appeal", which increased the grounds of appeal against conviction to fourteen, and against sentence to six. The amended document had annexed to it a large quantity of written submissions (124 pages), together with a large number of annexures (in excess of 150 pages). 7The grounds of appeal relied upon by the appellant in respect of his conviction are: "Ground 1 - That the trial miscarried as a result of hearsay evidence being admitted." (This ground repeats the earlier ground 1.) "Ground 2 - That the trial miscarried as a result of the Crown Advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination. Separately the twelve lies appear substantially to have been misstated by the Crown Advocate." (This ground repeats the earlier ground 2 but with the addition of the last sentence.) "Ground 3 - Justice miscarried when her Honour failed to give a correct ruling on spent or old convictions. Ground 4 - The trial miscarried when the learned trial judge failed to give adequate directions to the jury on real issues in the trial. Ground 5 - The trial miscarried when the learned trial judge allowed inadmissible police statements into evidence in breach of s33. Ground 6 - Justice miscarried when "prejudicial" information was continually stated to the jury. Ground 7 - For Count 3, the verdict was unsafe given new evidence and correct direction on the evidence of the offence. Ground 8 - A substantial miscarriage of justice occurred when the Crown misconducted himself at the trial. Ground 9 - A miscarriage of justice occurred when both the defence solicitor and counsel failed to take any direction before or during the trial. Ground 10 - Justice miscarried when her Honour revoked the accused's bail mid trial and prevented a fair trial being run. Ground 11 - Justice miscarried when her Honour prevented crucial evidence being adduced by the accused and defence counsel in breach of s79 of the Evidence Act. Ground 12 - Based on "new evidence" from the ICAA, the convictions are unreasonable and unsupported having regard to all the evidence. Ground 13 - In relation to a claim of right, that the convictions are unreasonable in the circumstances. Ground 14 - In the context of the previous 13 appeal grounds, the verdicts in this matter are unreasonable and unsupported by the evidence." 8The grounds of appeal against sentence are: "Ground 1 - That the learned trial judge erred in failing to have regard to the fact that the said offending conduct could be dealt with in the Local Court, where the maximum penalty of 12 months would apply." (This ground repeats the earlier ground 1.) "Ground 2 - That the learned trial judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence." (This ground repeats the earlier ground 2.) "Ground 3 - That the learned trial judge erred in her application of the principles of totality by partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge." (This ground repeats the earlier ground 3.) "Ground 4 - That the learned trial judge erred in that discounts for protective custody were not applied to this sentence. Ground 5 - That material errors, fabrications and misunderstandings of fact influenced the sentencing of the Applicant. Ground 6 - That the sentence is manifestly excessive." (this ground repeats the earlier ground 4.) 9Written submissions dated 28 October 2010 were received from Ms Nash of counsel in respect of Grounds of Appeal against conviction 1 and 2. The subsequent amended Grounds of Appeal and submissions were prepared by the appellant himself. At the hearing, the appellant appeared for himself. Conviction Appeal Factual background and evidence at trial 10The evidence called on behalf of the Crown was as follows. Ms Deborah Hill (the complainant) worked as a chartered accountant at Lane Cove under the style of "Deborah Hill & Co Chartered Accountants". In March 2008 the appellant approached her to do some accounting work for his company, Terra Cresta Business Solutions Pty Limited, (the company). The company was facing liquidation if it could not establish its solvency. The complainant was asked to prepare the company's accounts so as to show it was not insolvent. 11The complainant said that she did not want to risk not being paid, and accordingly insisted that the appellant pay her. The complainant said that her agreement was with the appellant not the company. Exhibit A1 was the complainant's Terms of Engagement and Costs Agreement which set out her estimate of fees of $1500 - $3500 and which included a recital "Should you wish us to perform additional services our fees will be based on the time required by the individuals assigned to the engagement plus any out of pocket expenses". 12Pursuant to the agreement, the appellant made an upfront payment of $950 to the complainant and on 8 April 2008, a further payment of $1,300. Both those payments were in cash. 13The complainant said that she had difficulty in balancing the company's accounts. On 22 April 2008 she invoiced the appellant for $4,526.50 for the work involved in the reconciliation of the balances. This was in addition to the monies already paid by the appellant to her. 14It was the complainant's evidence that when the appellant picked up the signed accounts on 24 April 2008, he said that he did not have the cash to pay her and would give her three cheques which she was to present a few days apart. The appellant dated the cheques on the days he told the complainant to present them. The first cheque was for $231 dated 24 April 2008; the second for $1,526.50 dated 27 April 2008 and the third for $3000 dated 29 April 2008. 15The complainant said that she tried to deposit the first two cheques on the days nominated, but received letters from her bank returning the two cheques on the basis that there were insufficient funds in the account. Thereafter, the complainant received a series of emails from the appellant (29 April, 30 April and 4 May 2008) seeking to explain why the cheques could not be met. 16On 6 May 2008 the complainant's assistant, Ms Theodor, requested payment of the outstanding account. The appellant expressed shock at the size of the outstanding amount, but in a note recorded by Ms Theodor he said "I am not saying I am not paying you ... I just haven't got the money" (exhibit A6.4). 17In the ensuing weeks, more requests for payment of the account were made on behalf of the complainant and some payments by way of instalments were made. The first documented complaint by the appellant concerning the outstanding account occurred in an email of 24 June 2004 as follows: "Deborah, this is not what you agreed with me the other day. You said you would provide the file etc if I paid $750 and I've now paid another $1000. Given you quoted like $1500 and then charged me $7K I do not feel that this has been at all a constructive/fair or a beneficial exercise. The time for me to lodge evidence has been extended several times and can't be extended any further. If they do not have this stuff by COB tomorrow, they will likely show I am insolvent as I can't give financials indicating otherwise. In that case you would need to chase a liquidator for the balance of funds as the company won't be mine. I don't think you are being fair at all given the amount I have already paid and the circumstances of the size of your invoices or my current proceedings. It is really a form of blackmail whether you care to admit it. The bills can only get paid when I have funds. I do not want accounts to 30 June, I want to the point that we did end of April which was a few transactions for interest. It's not a lot of work and certainly not $7K. Your call. Regards, Owen". (Exhibit A6.7) 18The complainant agreed to do further work for the appellant and in fact did so. She received two further payments by way of instalments from the appellant - $500 on 3 July and $100 on 5 September 2008. Between 2 July and 29 July 2008 she issued three further invoices for work ($577.50, $350 and $280). No further payments were received from the appellant. The complainant said that the balance owed by the appellant as at 5 September 2008 was $3615. Ms Theodor continued to request payment of the outstanding amount from the appellant. The appellant did not respond. 19On 5 March 2009 the complainant arranged for the two rejected cheques for $231 and $1526.50 to be represented. This time they were met, thereby reducing the amount which the complainant said was owed by the appellant to $1857.50. 20On 10 March 2009 Ms Theodor received a phone call from the appellant in which he appeared to be angry and said that the monies needed to be back in his account in the next hour or there would be "serious consequences". Ms Theodor made a note at the time "Owen claims he does not owe us money". On that same day, the complainant prepared an account setting out the amount that was still outstanding. She wrote on the account: "Owen, this is the current status of your account. You have not returned our telephone calls and have not provided us with an address to mail you. We would be grateful if you would address this outstanding amount as soon as possible". 21At about 9.30am on 12 March 2009 the appellant telephoned the complainant and sent a text message to her to the effect that they were committing fraud and that he had contacted the bank and so advised it. Not long afterwards, the complainant was walking back to her office when Ms Theodor rang. She was crying and said that the appellant had just been to the office. The complainant telephoned the police. She said that she did so because she wanted the police to be at the office before she arrived as she was six and a half months pregnant. When she arrived the police were there and she saw that the wires for her modem and router were sticking out and that the modem and router were missing. 22The complainant's office was networked. She could not access any of her data without going through a modem, so she bought a new modem and router. She could not get them to work and asked a technician from the shop to come over and get them working. She and Ms Theodor had been locking the office door every time they went to the toilet, but when the technician came they forgot to lock the door after him. 23At about 12 or 12.30pm on 12 March 2009 the appellant walked into the office. The complainant was talking to the technician at the time. The appellant said "You owe me money. I want my money" and started shouting that she had taken his money from his kids' mouths. The complainant told Ms Theodor to call the police. Her evidence was: "He sort of like pushed me on the chest. I think it was like more open handed pushing me, I'm not sure. I just fell backwards and then he said, "Give me my money or there's going to be serious consequences", and that's when I said to him "There's already serious consequences. You just assaulted me". And that's when he got and pushed me - he pushed me harder then, and then I moved back from the office quite quickly and sort of hit the back of my desk and then - we sort of stood up again and then he saw a laptop on my desk and he just said he - he kept - all he kept saying was "I want my money, I want my money" he was shouting". (T49-50) 24The complainant said that the appellant came right up to her, looked into her eyes and said "You're dead" (T.53). He then grabbed the laptop and "started to take all the cables out of the back and then grabbed it". The complainant said that the appellant was holding the laptop to his chest with both hands across his chest when she grabbed the two edges of the laptop and tried to get it from him. "Then he was trying to swing me around. He was just trying to shove - get rid of me by shoving me around and the laptop, he had it here and I had hold of it and he was like pushing it like this and swinging it back this way". The complainant said that the appellant took one of his arms off the laptop and was trying to push her away from him. 25The struggle for the laptop continued through the door of the office and down a flight of stairs until the complainant was pushed again. The complainant said that she then moved away from the appellant because she was concerned for her unborn child. She said that without the laptop, she could not run her business. The complainant called the police and she and Ms Theodor made statements at the police station. 26A few days later, perhaps 16 March 2009, a courier came to the complainant's office with two bags. Inside the bags were her modem, router and laptop. At the time when the courier arrived, she had a different computer technician in her office fixing up the router. At trial the complainant gave the following evidence in relation to what then happened: ""A. ... When I said to him, "Look my laptop is returned", he turned it on and said, "Well we'd better have a look at it because you don't know what this guy has done to it". Q. Was that the same technician who had been there a few days earlier? A. No, no it's a different guy. And he went and did a few scans and virus checks and he said, "There's a virus on it and also someone has enabled Blue Tooth". And as he was explaining it to me he could see that the mouse was moving on the screen. He said, "Someone else is operating this. I'm closing down the wireless sections so no-one can access your machine without it being on the cable that you use in the office." (T.54.3) 27Under cross-examination the following exchange took place: "Q. You understood that any entitlement to recover fees in relation to the work you were doing was an entitlement as against Terra Cresta Business Solutions Pty Limited? A. I had a discussion with Owen Salmon regarding this because when he came to me he told me that there was a legal battle going on between the company that he ran and another company that he was trying to recover some one from and that there was no money in this company. And there was basically, the only asset was the asset that he was trying to recover through the courts. So that's when he said that he would be paying for the work that had to be done, because I said to him, how am I going to get paid then, if the company hasn't got any money how is this going to happen, and he said, "I'm paying the accounts." (T.65.1) 28A further exchange took place during the cross-examination of the complainant: "Q. Again, you understood there to be a significant degree of urgency for this material to be provided? A. Yes, look I was more than happy to stop work on this. I didn't like the fact that I was owed money and I was still prepared to do more work. I didn't want to do it and I thought, "What do I do?" Do I leave this guy in the lurch so if I back off and do nothing then nothing gets done for this guy and he doesn't have his day in court and he doesn't have the information he needs because he's not going to find anyone else to do it. I would more than happy have said, "No, I'm not going to do it" but I felt that I would not be putting this guy in a very good position by walking away and especially having got this far in doing this work it wasn't that much work for me to produce the 2008 accounts for him. Q. Prior to receiving that email from him on 26 June you had had conversations with him about your requirements before you'd undertake this additional work, hadn't you? A. I can't recall exactly what you are referring to but we did have discussions before the email. ... Q. Can I suggest that the paragraph in that email, 'for my part I confirm that you have a personal undertaking from me', was something that you had discussed with him before him sending this email? A. I had discussed with him that I wanted to get paid and I wanted him to confirm he was going to pay me. Q. In effect, that paragraph was something that you dictated to him, isn't it? A. I don't recall. Q. That it was your requirement that he provide in writing at least in an email form a personal undertaking that the outstanding balance of $3007 would be paid? A. I wanted him to confirm that he was going to pay my account. (T.80.29 - 81.13) 29The email to which reference is made was dated 26 June 2008 from the appellant to the complainant and said "For my part I confirm that you have a personal undertaking from me that the outstanding balance on your account of $3007 will be paid in full at my first opportunity". 30Ms Theodor gave evidence. She was the complainant's office assistant. She identified file notes setting out attempts by her to obtain payment of the outstanding account from the appellant. She identified the file note of 10 March 2009 when the appellant referred to "serious consequences" unless the monies covered by the two cheques were returned to his account. 31She gave evidence about an attendance by the appellant at the complainant's office shortly after 9.30am on 12 March 2009. She gave details of the appellant's intimidating behaviour which led to her seeking assistance from the occupier of the next office. It was as a result of this confrontation, that Ms Theodor called the police and then contacted the complainant. She locked the office door and waited for the police to come. During that time the appellant came back and stood outside the glass door and banged on the door. He only left when Ms Theodor commenced to telephone the police. 32She gave evidence that later that day when the complainant and a computer technician were present, the appellant entered the office again. She said that the appellant pushed the complainant out of the way and grabbed her laptop. She said that there was a lot of pushing sideways and that the complainant was trying to stop him taking the laptop. There was a lot of yelling from both the complainant and the appellant. Ms Theodor rang 000. 33Under cross-examination Ms Theodor said that she began contacting the appellant about his outstanding accounts after 29 April and that the first time he complained about the amount of the account was in about August 2008. She said that she was very careful when making file notes to record the actual words used. 34Evidence was given by the computer technician, Minghui Zhao, who was present on 12 March 2009 at approximately 12.30pm when the confrontation took place between the complainant and the appellant. He said that when he was behind the desk doing some work on the router, a man entered the office and commenced talking to the complainant. He said that they were talking loudly which was what made him pay attention. He saw the man disconnect a laptop computer from the network and attempt to remove it. He observed a struggle between the complainant and the man over the laptop. 35He observed that the complainant and the man were shouting at each other and arguing but he could not recall what words were said. He said that the complainant was unsuccessful in trying to get the laptop back and that as the man tried to leave the office, the complainant was still trying to get the laptop back. Mr Zhao said "They push over, push each other" (T.151). He said that at one point the man pushed the complainant out of his way. He said that the complainant followed the man out of the office and he heard shouting on the stairway. He said that the other woman in the office looked scared and was crying. 36Evidence was given by Senior Constable Murphy as to complaints made to him by the complainant and Ms Theodor concerning the confrontation with the appellant. 37Senior Constable Ella Fitzpatrick gave evidence. She attended the offices of the complainant on the morning of 12 March after Ms Theodor reported her confrontation with the appellant. While she was at the office, the complainant arrived and told her that the appellant was a former client who owed her money and that after trying to get in contact with him for a long time, she banked two previously dishonoured cheques. The complainant told her that her modem was missing (T.163). 38Senior Constable Fitzpatrick then telephoned the appellant. Her evidence concerning the conversation was as follows: "I said, is this Owen Salmon? What sounded like an adult male voice said yes. I said, Owen this is Senior Constable Fitzpatrick from Chatswood police, I'm ringing you regarding an incident that has just occurred in Lane Cove, do you know what I'm talking about? The person purporting to be the accused said, yes, I do. I said, what's going on? The accused said, they've stolen my money and I want it back. That money was to feed my kids. I said, you should have come into the station and make a proper report rather than taking the matter into your own hands. The accused said, well I've reported it to the bank and they will send it to you. I said, it doesn't work that way, Owen, you need to come into the station yourself and make the report. Are you able to come into the station, we need to talk about what's just happened? The accused said, come and get me. I said, where are you then? The accused said, come and find me. I said, you're not making this any better for yourself, what's the deal with the modem? The accused said, I took the modem until they pay me the money that they owe me. I said, Owen, you can't do that, it doesn't work that way." (T.164.7) 39At around 12.50pm Senior Constable Fitzpatrick again attended the complainant's office and together with other police, was told about the removal of the laptop and what had happened. At about 1.48pm she telephoned the appellant. Her evidence concerning the conversation was as follows: "I said Owen what sounded like an adult mail voice similar to that of the person that I have spoken with earlier who had purported to be the accused said, yes, I said it's Senior Constable Fitzpatrick again, where is the laptop. The accused said "I took the laptop and I'm going to sell it on E-Bay so I can get my money back". I said Owen you can't do that, the accused said I will get my money back trust me. I said how are you going to do that? The accused said "Don't worry about that". The conversation continued for a short time while I organised for the defendant to come into Chatswood Police Station later that day. The conversation was then terminated." (T.165.45) 40As part of the Crown case, the DVD of the appellant's recorded interview with the police was played to the jury and tendered (exhibit C). The relevant parts of that interview were: "Q17 For the purpose of this interview what is your full name, date of birth and address? A. ... Salmon ... 67. Suite 245/91 to 93 Longueville Road, Lane Cove. ... Q41 O,K. It's also been alleged between 12.30 and 12.55 you have grabbed a, a laptop off a desk. A. Yeah. I took a laptop. Q42 What can you tell me about that? A. Ah, Deborah Hill was told to pay money back that she stole from me --- Q43 Yeah. A. --- and in lieu of that she was told that I would be happy to take her computers if she couldn't pay me. She said, "Yeah. Go ahead". So, I came. After she assaulted me I took a laptop. Q44 O.K. Well, what's been alleged is you have grabbed the laptop --- A. Ah hmmm. Q44 --- Miss Hill's still holding it and you've had a tug-of-war with the laptop. A. No. She assaulted me before I got anywhere near any computers. She assaulted me when I went near the computer. She assaulted me when I grabbed the computer and she assaulted me on the way out the door and down the stairs. Q45 O.K. A. Whilst her own staff are witnessing that and telling her to stop it. Q46 O.K. It's been alleged that you removed the laptop from her, from her desk, you've struggled with it. You've finally got hold of the laptop. You've pulled all the cables out. A. Ah hmm. Q47 And then walked away with. What can you tell me about that? A. That's correct. I said I took a laptop. Q48 O.K. It's then been alleged that you walked from the premises down a flight of stairs --- A. Correct. Q48 With the laptop. A. Well I didn't walk down. I was pushed down. ... Q91 O.K. Regarding the laptop, where, where is it currently? A. I've got it in safekeeping. Q92 Whereabouts? A. Doesn't matter where, it belongs to me. Q93 What makes you think you own the laptop? A. Because Deborah Hill said she wasn't going to pay the money back and therefore I can take the computer go ahead. Q94 O.K. A. So, she understands clearly. She pays back the money she stole or I'll eBay the computer. Q95 Well, she, in her statement she hasn't said anything about going into a verbal agreement about exchanging laptops. A This lady's a very good, con, con-woman so, nothing she says surprises me. Q96 O.K. So, at this time you believe you are the lawful owner of that laptop? A. Until she pays me back the money she stole. Yes. ... Q98 So, can you just run me through the process she explained to you it was O.K. to take the laptop? Is that right? A. Yeah. Q99 So, what was, what was the conversation? A. Ah, basically she told me to get stuffed. She wasn't going to pay the money back. I said, "Well, you need to pay me in something. If that's computers." She said, "Yeah, fine". That's it. It was about a twenty second conversation. ... Q142 O.K. And I asked you earlier on in the interview, did you take the router and the modem and you stated, no. A. I didn't state no. Q143 But, but now --- A. I just stated no comment. Q144 Sorry, you stated, "No comment?" So, you're stating now you --- A. Yeah. I've got a couple of things. I don't know what they are. Q145 O.K. What, what do they look like? You don't know what a modem --- A. Oh, it looks like a modem. Q145 --- router looks like? A. Yeah. Q146 O.K. Where is that at the moment? A. In my safekeeping. Ready to sell if she doesn't return the money. Q147 O.K. Did you, was there any agreement about the, the modem? A. Well it's part of the computer equipment so --- Q148 Just before we go on, Owen, you said that you spoke to Deborah and she said that she wasn't going to pay the money back --- A. Yeah. Q148 --- so, to take the computer? A. Yeah. ... Q161 Well, I'm just trying to establish whether she would agree to --- A. I don't care about establish it. She did agree. So as far as I'm concerned I own them until she decides to pay me back and I'll return them." 41The appellant's case consisted primarily of his own evidence. 42The appellant said that at the time the complainant was retained, the company was involved in a number of court matters. The predominant one involved a debt owed to it of over $2 million by a company named BACF which had gone into liquidation. In those proceedings the company lost on one claim and won on the other. The court made a costs order against the company in favour of the liquidators of BACF for 80 percent of the costs. The liquidators then took proceedings to wind up the company and it was in that context that he contacted the complainant. The appellant said that he needed the financial returns for the financial year ending 30 June 2007 prepared by an accountant. The task was urgent. The appellant said that the amount of work involved was quite small. 43The appellant said that he had initially contacted the complainant over the telephone and she had quoted him $1500 for the work. After meeting with her, she sent a retainer agreement to him which had an estimate of $1500 - $3500 for the work. The appellant said that he immediately queried the estimate. 44It was the appellant's evidence that he had a claim of right to take the modem, router and laptop because he had been given a fixed quote of $1500 by the complainant and had paid the initial retainer of $950 and a subsequent amount of $1300. He said that he was given no advance notice that the original estimate would be exceeded. The first he knew of the increased charges was when the complainant handed him the invoice for $4526. The appellant said that he disputed that amount immediately and continued to dispute it during all subsequent contacts with the complainant. 45The appellant said that it was the complainant who suggested that he should write cheques to her and postdate them, which he reluctantly did. He said that when he handed the cheques to her he told her not to present them until he confirmed that she should do so. The appellant said that the three payments he made to her of $750, $300 and $750 represented the amounts of the two cheques ($231 and $1526.50) that had bounced. The appellant said he did not know that she still had the two cheques. He said that by presenting the two cheques in March 2009, he believed that she was taking money that she was not entitled to. He said that he believed that he had a legal right to take the computer, modem and router. He said that the computer was only worth a few hundred dollars and had no real value to him (T.187). The appellant criticised the quality of the work performed by the complainant. He said that she was not very professional and almost incompetent. 46The appellant said that his claim of right also arose because the complainant told him that she no longer had the money. The appellant said that he suggested that she should pay him in alternative terms and he suggested the computers. The appellant said that the complainant responded to the effect "If you think that's fair, that's fine" (T.193). In cross-examination the appellant said that the agreement arrived at between him and the complainant concerning the computers was not that she would repay him in that way, but that she could repay him in that way (T.202). 47The appellant said that he and the complainant had been in dispute about her fees from the time when she presented him with the account for $4,526.50 on 22 April 2008. The appellant said that he believed the complainant was only entitled to charge what she had quoted in her retainer agreement and could not, without a new quote or further discussion with him, increase that amount. The appellant said that in all his discussions with Ms Theodor he had made it clear that he disputed that he owed the money being claimed by the complainant. 48The appellant said that he did not believe that he owed the complainant anything. His understanding was that once the company went into liquidation, it would have been illegal for him to pay her. He said that he had already paid the complainant for the work covered by the cheques which she re-presented. He did not cancel those cheques because he did not know that the complainant still had them. His understanding was that a bank would not return a cheque in circumstances where the cheque had not been met. 49The appellant said that he did not think that he was legally obliged to pay more than $3500 because that was the maximum amount set out in the complainant's retainer agreement. He said that he only paid more than $4000 because the complainant would not hand over documents otherwise. 50The appellant relied on the email of 24 June 2008 which he interpreted as indicating that if the complainant still believed she was owed money by him, she should seek a remedy through the liquidator of the company. In relation to the email of 26 June 2008 he said that this was sent by him to the complainant "under duress". Unless he sent the email, she would not do the further work which was urgently needed by the company. 51In relation to the assault charge, the appellant said that he was acting in self-defence because the complainant had become more and more agitated, was yelling and screaming and was attacking him and pushing him repeatedly. The appellant said that the complainant at one time had tried to put her hands around his throat. He denied ever pushing the complainant with his hands. 52The appellant said that he genuinely believed that he did not owe any money to the complainant and that she had wrongfully presented the cheques in March 2009 and that consequently, he was entitled to recover that money, or its equivalent, from her. He based that claim of right on the following specific aspects of his evidence. (i) The complainant initially quoted $1500. (ii) The complainant never indicated that that estimate would be exceeded. (iii) He disputed the $4526.50 invoice as soon as she gave it to him. (iv) He reluctantly handed over the three cheques and made it clear to the complainant not to cash the cheques because there was no money there and he was in dispute over the invoices. (v) He told the complainant that he did not have any money and not to bank the cheques unless he said he had money and in the meantime, they were to try to resolve the issue over the quantum of the invoice. (vi) He did not know that the complainant still had the cheques. (vii) He had already paid the amount covered by the two cheques. (viii) He raised with Ms Theodor on a number of occasions that he disputed the accounts and did not owe the money. (ix) On a number of occasions he spoke to the complainant about it and they were in dispute about him owing her money. (x) The laptop was second-hand and worth only a few hundred dollars. Submissions and consideration Ground of Appeal 1 - That the trial miscarried as a result of hearsay evidence being admitted. 53The hearsay evidence complained of is that set out at [26] hereof and at transcript T.54.3. The appellant submitted that this was important evidence which was prejudicial to him and as a result of it being given, a miscarriage of justice had occurred. He submitted that the unnamed technician was not a witness in the prosecution case, there was no statement from the technician served in the Crown brief, the complainant had made no mention of the technician in her statement to police and the trial judge had delivered an unambiguous direction to the complainant earlier about not giving evidence about what another person said. The appellant submitted that this evidence played an important part in the prosecution case in that it was used in the final address as evidence that the appellant continued to keep the computer and was treating it as if it were his own. The appellant submitted that if he had been given notice of this evidence, he could have called alibi evidence in his own case to show that he could not have been operating the computer. 54It was conceded by the appellant that counsel did not object to the evidence being given at the time and that consequently leave was needed under r4 of the Criminal Appeal Rules. The appellant submitted that such leave should be given because the admission of this evidence in the context of the case meant that he lost a real chance, or a chance fairly open to him, of being acquitted (R v Abusafiah (1991) 24 NSWLR 531). 55At this hearing the Crown was granted leave to file an affidavit of Janet Bremner, sworn 24 April 2012. That affidavit had annexed to it a Statement of Agreed Facts which was forwarded to the legal advisers of the appellant on 18 November 2009 by facsimile. That Statement of Agreed Facts included the following: "On 16 March 2009 an unidentified person attended the victim's offices and returned the computer and modem/router and stated that they were from Owen Salmon. The victim's support person spent some time restoring the computer to working order and noted that her computer had been accessed and as a result was capable of being remotely accessed." 56It follows that it is not correct to say that no notice was given that this evidence, or evidence of a similar kind, might be led by the Crown. 57An examination of the evidence makes it clear that all that was being raised was the possibility of the appellant remotely accessing the computer. The hearsay evidence only referred to "someone" operating the computer. Moreover, the complainant was cross-examined to the effect that she could not exclude the possibility that the technician, who had been at her office on the day of the confrontation with the appellant, (Mr Zhao who was called in the Crown case), might have activated the Blue Tooth on the laptop in the course of attempting to commission the replacement modem or router. She was also cross-examined to establish that when it was taken, despite having password protection, the laptop had been switched on and the "time out period feature" had been deactivated. These answers were consistent with the evidence of Mr Zhao that he had been trying for about 10 minutes to get the laptop to interact with the wireless router. Accordingly, the possibility that it was Mr Zhao who had activated the Blue Tooth in the course of his efforts to have the laptop interact with the wireless router was fairly and squarely raised in the proceedings and was equally open. 58It is true that the trial judge had earlier rejected the complainant giving hearsay evidence (T.47.07). That was a ruling made in response to an objection taken to another aspect of her evidence as hearsay. By contrast, when this evidence was given, no objection was taken. 59The absence of objection rendered the evidence admissible, because the phrase "not admissible" in s59(1) of the Evidence Act 1995 (NSW) means not admissible over objection (Gonzales v R (2007) 178 A Crim R 232 at [21] - [26] per Giles JA (with whom Howie and Fullerton JJ agreed)) and the authorities therein referred to). 60Not only was there no objection taken to the evidence, there was no defence application for the evidence to be withdrawn from the jury, for a voir dire on the evidence concerning the second technician, for the jury to be discharged or for directions to the jury concerning any alleged unreliability of that evidence by reason that it was hearsay, or for the Crown to be required to call the second technician. The evidence therefore remained available for inclusion in the final addresses. 61Counsel for the appellant at trial, provided an affidavit and was cross-examined by the appellant in these proceedings. In his affidavit he said that he could not recall why he did not object to this evidence, but having read his cross-examination of the complainant and of Mr Zhao "It appears that I did not consider this evidence to be of any great significance". 62Not only was that assessment of the effect of the evidence open to counsel for the appellant but it is, in my opinion, a reasonable assessment. The use of this evidence by the Crown in its summing up was limited to it being one of a number of indicia that the appellant had used the laptop as if it were his own. When making those submissions, the Crown advocate stressed that the most important indicators to that effect were the actual taking of the laptop by the appellant and his responses in his electronically recorded interview with the police. As can be seen from [40] hereof, in that interview the appellant's assertions as to ownership, or entitlement to possession of the laptop, were clear and unequivocal. 63The submissions at trial on behalf of the appellant dealt with this evidence in two ways. It was submitted that the jury could not reliably conclude that the appellant had activated the Blue Tooth or otherwise done anything in relation to the laptop. Alternatively, it was submitted that if the jury thought that the appellant believed he was entitled to take the laptop, then his activation of the Blue Tooth would be fully consistent with that claim of right. 64To have called alibi evidence on such an issue would have focused attention upon it and given it an importance which it did not deserve. In any event, the suggested alibi evidence was not decisive in that the complainant, while generally believing that the laptop was returned to her on 16 March 2009, was not sure of that date. Her evidence left open the possibility that the laptop was returned on Friday 13 March (T.90.39). Similarly, the appellant's evidence was open to the same interpretation, i.e. that the laptop was returned on Friday 13 March (T.250.17 - T.251.05). 65Accordingly, I am not satisfied that the trial miscarried in the way asserted by the appellant by the admission of this evidence, nor am I satisfied that any miscarriage of justice occurred thereby. In a trial where the issues were comparatively simple and straightforward, the impugned evidence played but a peripheral role. I would not grant leave under rule 4 for this ground to be raised. Ground of Appeal 2 - That the trial miscarried as a result of the Crown advocate putting to the jury that the appellant had lied in relation to twelve matters, none of which had been put to him in cross-examination. Separately the twelve lies appear substantially to have been misstated by the Crown advocate. 66The appellant submitted that the Crown advocate gave to the jury a list of "twelve alleged lies" to negate his claim of right defence. In his written submissions the appellant identified nine of the "alleged lies" and submitted that none of those matters had been put to him in cross-examination and in the case of five of the "alleged lies", that there was no basis in the evidence for such a submission. 67The appellant submitted that it was not made clear by the Crown advocate whether these "alleged lies" were being relied upon only to attack his credit or whether they were being relied upon to establish consciousness of guilt. The appellant submitted that regardless of the purpose, the submission as to lies would have adversely impacted upon the jury's assessment of his credit and as such, caused the trial to miscarry. 68The submission that the Crown did not make clear the purpose for which the lies would be relied upon is not made out. On two occasions (T.282.39, T.306.01-09) the Crown advocate made clear to the jury that the "alleged lies" were only relied upon on the question of the appellant's credibility. Her Honour also gave a direction to that effect (SU6.8-7.6). 69Contrary to the appellant's submission, there was cross-examination on all of the "alleged lies" sought to be relied upon by the Crown. This occurred as follows. There was cross-examination concerning the specific conversation between the appellant and complainant about her willingness to allow him to take her computer in part payment of the debt (T.245.06). There was cross-examination as to whether or not the appellant told Constable Fitzpatrick that he did not believe she was a police officer and as to other parts of his conversation with her (T.264.09, T.264.33). The appellant was cross-examined as to his evidence that the bank told him that unpaid cheques would not be returned to the person presenting them for payment. (T.231.48) The appellant was cross-examined about his evidence that the router and modem were placed in a cupboard near the complainant's office (T.251.39). The appellant was cross-examined as to whether he touched or pushed the complainant while trying to remove the computer (T.261.31). The appellant was cross-examined about telling the police that the task he asked the complainant to perform was a "one off" job (T.215.05). 70The Crown advocate was entitled to put before the jury the conflict in testimony between the appellant and these witnesses as going to his credit if the evidence of those witnesses were accepted. As the transcript reveals, those conflicts of evidence were fairly and squarely raised with the appellant in cross-examination. Similarly, the transcript makes clear that there was an evidentiary basis for the submission. There was no unfairness or miscarriage of justice in relation to those matters. 71The "alleged lies" concerning the relationship between the appellant and companies BACM and BACF and that the appellant had given an incorrect address to the police when interviewed, are in a different category. It is clear from the cross-examination of the appellant in relation to the companies, that the questions were ambiguous in that the word "related" was used. That word has a specific meaning in corporations law and the appellant's response to the questions, looked at in that way, was correct. Put at its highest, the Crown could have submitted that the appellant's answers on that issue were evasive, but not that he was lying. 72It is true that when asked for his address by the police during his interview, the appellant did not give his residential address. He gave an address to which his business correspondence was sent. In doing so, he was not telling a lie in that he had not then or subsequently been asked for his residential address. It was not open to the Crown to submit that the appellant had told a lie in relation to his address. 73Accordingly, the appellant has been successful in establishing that two of the twelve "alleged lies" should not have been put to the jury in that way. Simply put, there was no evidentiary basis for those submissions. The extent to which those submissions might have adversely impacted upon the jury's assessment of the appellant's credit, will be discussed later in these reasons. Ground of Appeal 3 - Justice miscarried when her Honour failed to give a correct ruling on spent or old convictions. 74The appellant submitted that because credit was so important in this case, he intended to call character evidence from persons who had worked with him in the past as to his honesty and integrity. The Crown advocate advised that if this were done, the Crown would put before the jury offences which the appellant had committed in Victoria some 23 years ago when he was a teenager. The appellant also submitted that two of the four offences on the Crown's list, were not offences which he had committed. 75The appellant submitted that his counsel should have raised s579 of the Crimes Act 1900, which would have prevented the Crown from relying upon those old convictions and should have thereafter called character evidence in his case. The appellant submitted that the failure to call that character evidence at trial brought about a miscarriage of justice. 76The background to what occurred was this. When counsel for the appellant foreshadowed the calling of character evidence, the Crown advocate responded by saying that he would rely upon four previous convictions of the appellant which had occurred in Victoria over 23 years before. A discussion took place with the trial judge in the absence of the jury (T.103). In the course of that discussion, when the appellant's counsel raised with her Honour that because of their age these convictions were "spent" and could not be relied upon by the Crown, her Honour responded that she was not sure that that was correct and would appreciate being provided with some authority on the question. Nothing more was said on the subject. There was no application made then or at any subsequent time in the trial for any determination or ruling by the trial judge on that issue. The appellant's previous convictions were never put before the jury. 77In his affidavit and oral evidence, counsel for the appellant at trial made it clear that his decision not to call character evidence on behalf of the appellant was not made because he was afraid that these old convictions would be placed before the jury, but for another reason. That reason is discussed under another ground of appeal. 78The fact of the appellant's previous convictions played no part in the trial. Accordingly, no miscarriage of justice occurred and this ground of appeal has not been made out. Ground of Appeal 4 - The trial miscarried when the learned trial judge failed to give adequate directions to the jury on real issues in the trial. 79This ground asserts that the trial miscarried because the trial judge failed to give adequate directions in relation to 19 pieces of evidence and law listed as (a)-(s) and referred to below. In none of those instances was any application made for further or remedial directions and accordingly leave is required pursuant to r4 of the Criminal Appeal Rules in respect of each of the issues raised in this ground, most of which can be conveniently grouped. I would refuse leave. 80(a) Her Honour failed to give directions of law to the jury regarding the legal obligations of an individual and a company. (b) The trial miscarried when her Honour failed to give any direction on contract law, a crucial requirement in this case. (o) Her Honour failed to prevent statements being given that contradicted the Corporations Act. (p) That corporations law as the case was presented was a real issue that needed direction. (q) Her Honour failed to uphold her own directions that there be no distinction between the company and the appellant. (r) If corporations law had been correctly applied, the appellant's chance of acquittal would have been substantially improved. The appellant submitted that her Honour should have given directions which made it clear to the jury that there was a distinction between the company and the appellant personally. The appellant submitted that her Honour should have made it clear that he considered that the agreement was between the complainant and the company, not with him personally. 81This was not how the case was run at trial. Although some questions were put to the complainant in cross-examination on this issue (see [27] hereof and T.65), counsel for the appellant when asked by her Honour eschewed any such distinction. In these proceedings he explained that decision in his affidavit and oral evidence as follows: "71 In relation to paragraph 286 of the appellant's submissions I formed a view that the question whether the liability to pay Ms Hill's account was a personal liability or a company liability was irrelevant to the proceedings. The issue was Mr Salmon's subjective belief. Mr Salmon could not escape the fact that he had handed over personal cheques to Ms Hill. There was a factual issue concerning instructions to her about presenting the cheques but my view was that putting before the jury evidence about corporations law would be misleading, confusing and a waste of time." 82In the proceedings before this Court, he said: "HOEBEN JA: Q. Mr Hogan in case I forget, was it any part of your understanding of Mr Salmon's claim of right that the debt was in fact owed by one of his companies rather than by him personally? A. Yes, in the sense that the work was done for the company, but no in the sense that he had handed over a personal cheque. There was a tension between the two and it was another one of those areas that I thought risked raising a lot of irrelevant and confusing material. On the occasion that I tried to raise in a general way some concept of a corporate veil in cross-examining Miss Hill her Honour I think again made it clear that that wasn't an area that she thought was relevant to the case and I didn't think it had any great relevance at any rate. Q. You didn't pursue it? A. Yes. Q. I think that is where her Honour said something or other that she'd need to make a speech about company law etcetera? A. Yes, and that my, the very outline on the indication of what the concept of a proprietary limited company was just a thumb nail sketch and that there were all sorts of circumstances in which a director might well become personally liable for debts that were incurred by the company and that that wasn't going to take us anywhere usefully in the trial. " (T.67.44-T.68.17) 83In the circumstances of this case, there was no requirement for her Honour to give directions of the kind suggested. The crucial element was the genuineness of the appellant's belief that he did not owe any money and whether or not the Crown had discharged its burden of disproving the genuineness of that belief. 84The issue in relation to this part of the Crown case was clear. The evidence of the complainant was that the appellant had agreed to pay personally for her work (T.5.38, T.19.21, T.65.01, T.65.47, T.81.15, T.81.37). The evidence of the appellant was that he did not so agree and had only given the written undertaking to pay as a director on behalf of the company, and even then only under duress (T.240.14). Such evidence put the issue starkly before the jury without the necessity for further directions concerning the law of contract or corporations law. 85Counsel for the appellant in final addresses referred to the appellant's belief that the debt was owed by the company and not him personally. Her Honour made it clear in her summing up that while the claim of right had to be based on a genuine belief, that belief did not itself have to be legally correct (SU19.8). Those directions were appropriate, irrespective of whether the jury had a reasonable doubt that the appellant believed that no monies at all were owing to the complainant or that any monies in fact owing, were owed by the company and not him personally. Because of the claim of right defence, it was unnecessary for the jury to resolve ultimately whether any debt was actually owed to the complainant, or indeed whether such a debt was owed by the company, rather than by the appellant personally. 86No further directions were required than those which were given by her Honour. 87(c) The trial miscarried when the learned judge failed to give the jury proper instruction on the law of claim of right. The appellant submitted that her Honour ought to have directed the jury that as part of his claim of right, he was entitled to use force to obtain the goods in its legitimate exercise. 88This submission misunderstands the issues which arose at trial. The Crown case was that in the presence of Ms Theodor and Mr Zhao, the appellant first assaulted the complainant and then robbed her of the laptop. The appellant's case was that there was no assault and that the laptop was taken by consent, pursuant to an agreement with the complainant, but that he had to remove the hands of the complainant from around his neck. Alternatively, he had a right to take the laptop because the complainant had wrongfully deprived him of his money when she had cashed the two cheques. 89Having regard to the Crown case on counts 2 and 3, and the defence case in response, it would have been counterproductive to have sought directions of an alternative defence scenario, i.e. that the appellant might have been exercising his claim of right with substantially greater force than that to which he admitted in his police interview and in his evidence. 90No further direction along the lines suggested by the appellant was required to be given by her Honour. 91(d) The Judge misdirected the jury at T.23/24 in summing up by stating that if the appellant had the intention at the time of the taking, that he would return the goods at a later time, he would be entitled to be found not guilty as he had not intended to permanently deprive the owner. In this respect the formulation at T.17 may be a correct direction but the formulation at T.23-24 is a misdirection. 92The appellant submitted that the directions to which he referred were mutually inconsistent with the first direction being correct and the second being incorrect. 93This submission is not made out. Both directions are correct and convey the same meaning. The impugned direction was: "As I have already told you, if you found that the accused took the property intending to take ownership of it but contemplated that later he might return it that, of itself, does not entitle him to be found not guilty of this charge. If you are satisfied beyond reasonable doubt that at the time he took the laptop he intended to take it for his own benefit, even if he contemplated that maybe he may return it, then the Crown has established this element beyond reasonable doubt." There is no error in this direction. 94(e) The learned judge gave a misdirection at T.10-11 by stating "When the accused pushed and shouldered Ms Hill, that it was deliberate". This makes the assumption that the appellant did push and shoulder Ms Hill. That was a major fact in dispute. Therefore it was a wrong direction to assume that the appellant did in fact push and shoulder her. (i) Her Honour at T.9 misdirects the jury regarding the two-handed push. (m) Her Honour did not sufficiently explain the assault elements to cover the evidence given in this trial. The appellant submitted that her Honour summed up too favourably for the prosecution in relation to what she said concerning evidence going to the assault. He submitted that in part her Honour's direction assumed that he had in fact pushed the complainant and that her Honour described the push in a way which went beyond the evidence. 95Her Honour provided a written direction to the jury which set out the elements which the Crown had to prove in order to establish the offence of assault. In her summing up her Honour explained the written direction. When explaining the third element, i.e. that the acts were intentional, it was necessary for her Honour to make clear to the jury the temporal element in the offence, i.e. that the necessary intent had to be present at the time of the physical contact between the appellant and the complainant. It was in that context that her Honour used the word "when". There was no defect in her Honour's direction on the assault issue. 96Furthermore, very shortly after her Honour's reference to 'when' and which is the subject of complaint, her Honour stated 'the accused denies that he pushed Ms Hill as she said, but agrees that he did touch her'. In light of this, the jury could not possibly have concluded that her Honour was pre-judging or assuming that the appellant in fact pushed and shouldered Ms Hill. 97(g) That her Honour failed to caution the jury against drawing an inference that the accused was making things up when counsel failed to re-examine the accused after the accused's evidence contradicted with that of his opening remarks. The appellant submitted that there was a contradiction between what his counsel said in the opening and the evidence which he gave. He submitted that her Honour should have warned the jury against drawing an adverse inference because of that contradiction. No point was taken by the Crown as to any such contradiction. Accordingly, even if a contradiction existed (which the appellant has not identified) there was no proper basis for her Honour to give such a direction. 98(h) Her Honour failed to give the jury a direction on alibi. There was no evidence at trial which warranted an alibi direction. 99(j) Her Honour failed to direct the jury there must be violence or threat of violence which induces the victim to part with the property. In relation to the robbery offence, the appellant submitted that not only should her Honour have given the direction specified, but she should have given a direction that if violence occurred after the property was taken, this would not amount to robbery. The background to this submission was the evidence of Mr Zhao that the pushing by the appellant occurred after he picked up the laptop. 100The written direction provided by her Honour, setting out the elements of the offence of robbery, was orthodox and correct. Her Honour explained each element of the offence in her summing up. In circumstances such as occurred here, where it was common ground that the complainant attempted to prevent the taking of the laptop, no relevant directions were omitted by her Honour. 101(k) That the larceny direction was not correct in the circumstances. The appellant submitted that her Honour failed to direct the jury that for the offence of larceny to occur, the property "must be taken and carried away". The appellant submitted that the taking by him of the modem and router and placing it nearby in a cupboard, could not amount to larceny. 102As her Honour explained, the larceny offence required the taking of the goods without the complainant's consent with the intention of taking ownership of the property. Each of those elements was explained in detail, both in writing and orally, by her Honour. No further direction was required. 103(l) That her Honour misstated the evidence to the jury in summing up. (n) Her Honour exhibited bias throughout the trial against the accused. The appellant submitted that in her summing up, her Honour stressed the evidence which favoured the Crown and did not adequately or at all mention the evidence which favoured him. A fair reading of her Honour's summing up does not support this complaint. 104(s) Her Honour failed to give any direction on demeanour. The appellant submitted that her Honour should have given the jury a direction as to demeanour because the Crown advocate directed the jury's attention to "the way he gave his evidence". 105It is clear that the Crown advocate was inviting attention to the demeanour of the appellant as it impinged upon his credibility. In her summing up, her Honour said: "That a witness has inconsistencies in his or her evidence does not automatically mean that he or she is unreliable. Reliability is an assessment that you make based on, not only what the witness said, but how he or she presented it, how he or she appeared in the witness box and how the evidence of that witness appears in the light of the other evidence in the case. All of those matters are appropriate and relevant for you to take into account in determining the reliability of a witness." (SU 5.2) Nothing further was required of her Honour by way of direction. Ground of Appeal 5 - The trial miscarried when the learned trial judge allowed inadmissible police statements into evidence in breach of s33. 106The appellant submitted that the statements of Senior Constable Murphy, Constable Eastham and Senior Constable Fitzpatrick were wrongly admitted contrary to s33 of the Evidence Act 1995 and that his counsel failed to carry out instructions to object to the admission of these statements. 107Relevant in that connection is the fact that s 33 precludes a police officer reading his or her statement unless, inter alia, "the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers". The statements the subject of this ground of appeal were made: (1) In the case of Senior Constable Murphy, on 12 April 2009, 31 days after its subject matter. (2) Constable Eastham, on 25 March 2009, 13 days after its subject matter. (3) Senior Constable Fitzpatrick, on 27 March 2009, 15 days after its subject matter. 108In Orchard v Spooner (1992) 28 NSWLR 114 it was suggested that a forerunner of the section in relevantly identical terms contemplated a statement made within days rather than weeks of the events. For my part, I would not regard any of the three statements mentioned as made, as s 33 requires, "at the time of or soon after the occurrence of the events to which it refers". 109Senior Constable Murphy's statement was very short. In it he said that he had attended on the premises, met the complainant who was heavily pregnant and very upset, that she had said that a male had entered and demanded money, then had become aggressive and pushed her with 2 hands backwards forcing her to the rear of the office, then had picked up the victim's laptop, a short struggle occurred and then the male had walked out of the premises with the laptop. 110Senior Constable Eastham's statement was not short but it dealt with the arrest of the appellant, his wanting to report being assaulted, discussions with the appellant about his being interviewed, requests to the latter concerning whether he wished to obtain legal advice and attempts he made to do so and then the occurrence but not the contents of the interview. It was, in terms of the appellant's guilt, innocuous. 111Senior Constable Fitzpatrick's evidence covered a number of topics including conversations with Ms Hill, Ms Theodore and the accused. Some of this evidence certainly tended to incriminate the appellant. 112On the other hand, a deal of it, particularly the incriminating parts, accorded with evidence that the accused himself gave. Furthermore, Constable Fitzpatrick's evidence included the statement that some of what she said had been recorded in her police notebook. One may infer that this was earlier than her statement of 27 March and very probably at about the time events occurred. However the extent of such recording was not explored in detail in evidence at the trial or in the appeal. 113Reference should also be made to s 32 of the Evidence Act which permits a witness, with the leave of the Court, to refresh his or her memory from a document. In deciding whether to grant such leave it is relevant for the judge to consider whether when events were recorded in a statement, they were fresh in the witness' memory but that is not a pre-condition for allowing a statement to be used. Although without more concrete information than is available to this Court, one cannot be sure what a judge would have done, the matters to which I have referred lead me to the view that probably some refreshing would have been allowed. 114In the result, while I regard the reading of their statements by these police officers as an error in the trial, it was an error having little or no significance. Ground of Appeal 6 - Justice miscarried when "prejudicial information was continually stated to the jury". 115The appellant submitted that the evidence of the complainant's advanced pregnancy was irrelevant and prejudicial to him in that it was designed to create sympathy for the complainant. He submitted that this evidence should have been excluded by the operation of s137 of the Evidence Act. 116The fact of the complainant's advanced pregnancy was necessary to explain a number of actions of the complainant, e.g. calling the police after the first visit by the appellant to her office, why she did not further pursue the appellant down the stairs when he had raised his arm as if to hit her and as to why she had not been the aggressor in her confrontation with the appellant. Ms Theodor gave the evidence to explain calling the police. Mr Zhao made repeated references to the pregnancy as a means of distinguishing the complainant from Ms Theodor. Constable Murphy and Senior Constable Fitzpatrick were also able to differentiate the complainant from Ms Theodor by reference to her pregnancy. 117No objection was taken by the defence to evidence of the complainant's pregnancy. The Crown referred to the fact of the complainant's pregnancy to negative that part of the appellant's evidence that she had tried to push him down the stairs after he left the office. 118That the complainant was over six and a half months pregnant was an undisputed fact in the trial. It explains part of her conduct. It was otherwise relevant to issues raised by the defence. It was appropriate that the jury be made aware of this fact. In the circumstances, the evidence was not prejudicial in the sense relied upon by the appellant and the communication of that fact to the jury caused no miscarriage of justice. Ground of Appeal 7 - For count 3, the verdict was unsafe given new evidence and correct direction on the elements of the offence. 119The appellant repeated the submissions already made that for robbery to have occurred "there must be violence or threat of violence which induces the victim to part with the property taken. It is not sufficient if there was violence or threat thereof made after the property was taken". The appellant submitted that on the evidence, the elements of count 3 were not made out. The appellant also sought to rely upon additional evidence. 120The Crown's case in relation to count 3 alleged that the appellant took the laptop from the desk in the presence of the complainant, who attempted to prevent him from doing so by taking hold of the laptop. The appellant then swung the laptop around so that the complainant also twisted around from side to side as she held onto the laptop in an effort to prevent the appellant taking it. All of the evidence in the Crown case (the complainant, Ms Theodor and Mr Zhao) supported that sequence of events. The Crown case was thereby capable of properly making out the offence of robbery. There was nothing unsafe in the jury accepting that evidence and finding the offence proved. 121The new evidence sought to be relied upon by the appellant under this ground of appeal is irrelevant. It comprises a substantial quantity of material relating to professional standards and ethics of accountants (96 pages). It can have no probative effect on any part of the Crown evidence which went to establish count 3. 122This ground of appeal has not been made out. Ground of Appeal 8 - A substantial miscarriage of justice occurred when the Crown misconducted himself in the trial. 123In support of this submission, the appellant set out 33 pieces of transcript which he submitted involved a misstatement of the evidence. The appellant made a number of further submissions, all of which had been raised earlier by him and which have been dealt with in these reasons. None of these issues were raised at trial and so leave pursuant to rule 4 is required. I would refuse leave except for items (ff) and (gg) which have already been referred to at [71] - [73] hereof. 124The appellant raised the following "misstatements of the evidence". (a) T.200.28 - The appellant agreed with the proposition put. (b) T.244.4 - The appellant agreed with the proposition put. (c) T.249.22 - The appellant agreed with the proposition put. (d) T.293.5-6 - There was a proper evidentiary basis for this statement. (e) T.293.7 - There was a proper evidentiary basis for this statement. (f) T.296.24 - There was a proper evidentiary basis for this statement. (g) T.296.30 - There was a proper evidentiary basis for this question. (h) T.304.2 - There was some imprecision in this statement, but otherwise there was a proper evidentiary basis for putting it. (i) T.304 - There was a proper evidentiary basis for this statement. It was the Crown case that the complainant had been trying for some time prior to the re-presentation of the cheques to contact the appellant to obtain payment of the account. (j) T.106.47 - There was an evidentiary basis for this question. (k)-(l) T.215.33 - The terms "guarantee" and "undertaking" were used interchangeably in this trial to refer to both the oral agreement which the appellant had initially made with the complainant that he would pay her fees as well as the written undertaking he gave in the email of 26 June 2008. There would have been no misunderstanding on the jury's part. (m) T.292.42 - The appellant agreed with this proposition. (n) T.293.13 - There is an evidentiary basis for this submission. (o) T.294.25 (p) T.294.42 - There is an evidentiary basis for those submissions. (q) T.295.6 - The evidence of Mr Zhao was that the appellant took the laptop and then both he and the complainant were pushing each other and then the appellant was pushing her away to leave through the door. In those circumstances it was open to the Crown to submit that the evidence of Mr Zhao portrayed the appellant as the aggressor. (r) T.295.3 - There was an evidentiary basis for this submission. (s) T.296.41 - There was an evidentiary basis for this submission. Although every contact between the complainant and the appellant was not documented, most contacts were and the documentation favoured the Crown case. (t) T.294.22 (u) T.297.27 (v) T.297.17 (w) T.297.43 (x) T.297.48 - These references raise the same issue. There is a clear evidentiary basis for the submission made. (y) T.298.20 - The substance of the Crown submission was that the complainant understood that the appellant was responsible for her professional fees from the first meeting because he had informed her of the financial circumstances of the company. The reference to the "books" was inaccurate but had no effect on the entitlement of the Crown to put the submission. (z) T.298.31 - There was an evidentiary basis for this submission. (aa) T.298.40 - As previously indicated, the words "guarantee" and "undertaking" were used interchangeably in the trial in circumstances where there could have been no misunderstanding as to what was meant on the part of the jury. They were references to evidence that the appellant undertook to pay the complainant's fees personally. (bb) T.301.18 - There was an evidentiary basis for this submission. (cc) T.301.44 - This was a submission open to the Crown. It referred to what the Crown said was evasiveness on the part of the appellant in answering some questions. (dd) T.303.11 - This evidence emerged under cross-examination and the Crown was entitled to make a submission in relation to it. (ee) T.303.22 - Both Ms Theodor and Mr Zhao gave evidence which would support this submission (T.107.20, T.152.01). (ff) T.304.5 - The appellant's complaint is justified. The Crown was not entitled to submit that the responses which the appellant gave in respect of the companies BACF and BACM were untrue. (gg) T.305.2 - The appellant's complaint is justified. It was not open to the Crown to submit that the appellant's response to the police when his address was requested was not true. Ground of Appeal 9 - A miscarriage of justice occurred when both the defence solicitor and counsel failed to take any direction before or during the trial. 125The appellant submitted that his legal representation at trial was "woefully inadequate" and as a result, he did not receive a fair trial. He specifically complained of a failure to take and follow instructions, that critical documents were not obtained or considered, and that there was a failure to take appropriate objections to evidence in the Crown case. 126The appellant's dissatisfaction with his legal representation at trial is a theme which runs throughout all his Grounds of Appeal. Affidavits were provided by Mr Shukla, the instructing solicitor, and by Mr Hogan, counsel who represented the appellant at the trial. Both Mr Shukla and Mr Hogan were cross-examined by the appellant. I found Messrs Shukla and Hogan to be impressive witnesses. They were honest and to the best of their ability endeavoured to assist the Court by setting out what occurred between them and the appellant before and during the trial. While their recollections were not perfect as to every detail, it was quite apparent from their evidence that each of them had a generally good recollection of what occurred at trial and were reliable witnesses. Unless otherwise indicated, I accept the evidence of Messrs Shukla and Hogan. 127Before dealing with specific submissions by the appellant, it is useful to set out the principles applicable to a ground of appeal raising incompetence of counsel. In Monteiro v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said - "[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include - '2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.' (p 685, per Gleeson CJ) [156] Earlier, Gleeson CJ had said - 'As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.' (p 683) [157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms - '... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.' (p 684) [158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said - '16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.'" 128Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336 - "Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere." 129In applying those principles, it is clear that the task facing counsel at trial was a difficult one. The appellant wanted the trial to run on the basis of a wide-ranging inquiry into the professional ethics and practices of the complainant. He also wished to raise matters based on his understanding of corporations law such as the proposition that once the company went into liquidation, he was not, as a matter of law, allowed to pay the complainant even if he had given a personal undertaking to do so. The appellant wished to give evidence as to matters of law based on his knowledge and experience with corporations law. 130Counsel on the other hand, wished to run the trial differently. In his affidavit, he said: "5. Essentially this was a very simple trial. The appellant's defence to the robbery and larceny charges was that he believed that he did not owe Ms Hill the money she obtained from him by presenting the two cheques that had previously been dishonoured (the "claim of right"). His defence to the assault charge was that any force he applied to her was limited to removing her hands when she took hold of him (self-defence). 6. In preparing and conducting the trial I was conscious of the need to confine the evidence in the trial to matters relevant to the issues in dispute. In addition to considering my duty to the court in this respect, in my experience juries respond better to a defence which is confined as much as possible to well defined and limited issues. 7. Mr Salmon was a particularly difficult client in the sense that his instructions often involved material that went outside matters relevant to these limited issues. There was a constant tension in my dealings with him between his instructions and my view of what was relevant to the proceedings." 131The approach to the trial advocated by counsel was a sensible and realistic one and he was justified in rejecting the approach which the appellant wished to follow. Counsel's decision as to how to run the trial, and his decisions as to when to take objection and when not, such as allowing parts of the police statements to be read, were all within the wide authority which he had to act in the best interests of his client. 132There were, however, two instances where counsel erred. The first has already been identified, i.e. the failure to object to the Crown asserting in addresses that the appellant had told lies about the companies BACF and BACM and about his residential address. The other error occurred when counsel decided not to call character evidence on behalf of the appellant for fear that the question of the appellant's credibility would be raised on the basis that he did not give a correct address, not only by the Crown but also by her Honour. The circumstances in which that error occurred and the effect of those errors are dealt with later in these reasons. 133With the exception of those two instances, the decisions made by counsel in the conduct of the trial were within his authority and it has not been shown were not thought to be or in fact in the best interests of the appellant. Subject to the two issues identified, this ground of appeal has otherwise not been made out. Ground of Appeal 10 - Justice miscarried when her Honour revoked the accused's bail mid trial and prevented a fair trial being run. 134The appellant submitted that her Honour's revocation of bail on the third day of the trial (10.12.2009), prevented a fair trial in that he was placed in remand overnight, where it was almost impossible to sleep, all of his documents were taken from him and when he gave evidence the following day, he had not showered or had a change of clothing and was not in a fit state to give evidence. He submitted that the most significant disadvantage imposed on him was his inability to access "the extensive documentation that underpins many aspects of this case" (appellant's Written Submissions par 296). 135It is difficult for this Court to accurately assess what occurred during the trial merely from the transcript. Something may have happened which her Honour observed, but which is not apparent from the transcript which led to her Honour forming the belief that she had been deliberately deceived by the appellant in relation to his residential address. From a simple reading of the transcript, however, the only inference available is that her Honour was not justified in revoking bail and that she was operating under some kind of misunderstanding when she did so. 136In the absence of the jury, the following exchange took place (T.171): "HER HONOUR: Mr Hogan I think I might impose a variation on your client's bail. HOGAN: Yes your Honour. HER HONOUR: Does he have a residential requirement in his present bail? HOGAN: I can't help you with that your Honour. If you would just excuse me. No apparently he doesn't. HER HONOUR: His present address is - ? HOGAN: Suite 245, 91 Longueville Road, Lane Cove. HER HONOUR: Is that a residential address? HOGAN: Yes your Honour. HER HONOUR: Mr Hogan given that the witnesses are all from that area, I am going to make a variation to your client's bail that after leaving court he is not to go to the Lane Cove shopping precincts, not to approach any witnesses or go within 500 metres of Ms Hill's business premises. HOGAN: Can your Honour just let me make sure that - because I think both of her addresses are on Longueville Road aren't they? HER HONOUR: Yes but I thought your client said 91 didn't he? HOGAN: Yes that's what I want to check that there's no chance that it's within 500 metres. HER HONOUR: Yes please do. HOGAN: Your Honour I'm sorry that this is so complicated. It's complicated because Mr Salmon has clarified that is not a residential address - HER HONOUR: So my direct question which was "Is that a residential address?" and his answer "Yes", that was wrong? HOGAN: Yes. HER HONOUR: Shall I revoke his bail so we all know where he lives, Mr Hogan?" Later in submissions to her Honour, counsel said: (T.172.20) "HOGAN: The accused tells me that when I was indicating that that was a residential address he was trying to get my attention to indicate that it wasn't. Your Honour saw what your Honour saw from where your Honour sits and your Honour can assess that submission in light of what your Honour observed. He tells me your Honour, and I'm almost hesitant to do this from the bar table and I wonder whether it might be preferable to call him rather than me ..." 137Whether her Honour saw something from the bench, which does not appear on the transcript is not clear. What the transcript records is that a mistake was made by counsel in responding to her Honour's question, which was corrected by the appellant within a minute or so of the mistake being made. If nothing else happened other than that which is reflected in the transcript, it seems clear that her Honour was not justified in revoking the appellant's bail. 138That, however, does not end the matter. Despite the assertions by the appellant that his ability to give evidence the next day was seriously interfered with, he made no complaint to counsel to that effect. Had he done so it was counsel's evidence (which I accept) that he would have applied for an adjournment. "Q. I say to you that severely corrupted my preparation for cross-examination? A. If I had thought you weren't in a fit emotional state to give evidence, I would have made the application I foreshadowed on page 174 of the afternoon before. Q. Could that have affected my demeanour evidence though after six hours in the witness box? A. Yes it could have." (T.63.39) 139It was clearly most regrettable that the appellant's bail was revoked in the way in which it was during the trial. It should be noted, however, that her Honour delayed the start of the trial the following day to 11am to enable the appellant to "spruce himself up" so as to be ready to give evidence (T.174.15 -.38). Even though the appellant was inconvenienced in this way, there was nothing in his answers under cross-examination to indicate that he was unable to properly answer questions. I am not satisfied that the revocation of the appellant's bail overnight on 10.12.2009 led to a miscarriage of justice. Ground of Appeal 11 - Justice miscarried when her Honour prevented crucial evidence being adduced by the accused and defence counsel in breach of s79 of the Evidence Act. 140The appellant submitted that he was prevented by rulings of the trial judge from giving evidence about accounting practices, banking practices and policies, debt recovery, corporations law and other related matters although he was sufficiently qualified to do so, either by reason of his relevant business experience or academic qualifications. 141The appellant also wished to rely upon additional evidence in support of this ground of appeal, being the Chartered Accountants' Code of Conduct setting out standards to be observed by chartered accountants. The purpose of the foreshadowed oral evidence from the appellant and of this additional evidence was to demonstrate that the complainant had acted unethically in rendering accounts to the appellant and that consequently, he did not owe her any money. The appellant intended to rely upon these matters as part of his defence of claim of right. 142At an early point in the trial, her Honour queried the relevance of evidence about corporation law and counsel for the defendant agreed that its relevance was marginal and did not pursue that issue further at trial. As a result, there was no application made at trial for the appellant to be permitted to give opinion evidence concerning accounting practices, and/or banking and/or corporation law. Accordingly, it cannot be said that her Honour ruled against or prevented evidence being adduced by the appellant on these issues. 143As previously indicated, counsel's assessment that such matters were irrelevant and should not be pursued was reasonable and was within the broad authority which he had to conduct the trial on behalf of the appellant. Apart from the assertion that the debt was not owed personally by the appellant to the complainant, it is difficult to see how these additional matters were relevant to the issues at trial and the counts with which the appellant was charged. 144In the course of the hearing before this Court, the appellant set out his qualifications - a certificate in banking finance and a Master of Business Administration. He has also had dealings over the years with many chartered accountants. With those qualifications it is doubtful whether, in any event, the appellant would have been qualified to give expert evidence about accounting practices or corporations law. Despite lack of qualifications, the appellant did give evidence in the trial as to banking practice in relation to the return of cheques (T.189.34, T.231.44) and as to his opinion on what he referred to as "insolvent transactions" (T.272.33). 145This ground of appeal should be rejected. No application to give the evidence referred to by the appellant was made at trial. This was a reasonable decision which was open to his counsel. Even if the evidence had been given, its relevance was marginal at best. In any event, the appellant did succeed in giving some of that opinion evidence. Ground of Appeal 12 - Based on "new" evidence from ICAA, the convictions are unreasonable and unsupported, having regard to all the evidence. 146The appellant again sought leave to tender additional evidence to support this ground of appeal. The additional evidence was: (a) The ICAA (Institute of Chartered Accountants of Australia) Members' Handbook. (b) The APESB (Accounting Professional and Ethical Standards Board) Terms of Engagement. (c) The ICAA Guidelines relating to the ownership, possession and disclosure of documents and records. (d) The ICAA Guidelines as to the rendering of fees. The appellant submitted that an analysis of these documents showed that the complainant was in breach of these guidelines and standards. The appellant referred specifically to the various accounts which the complainant rendered to him and the way in which those accounts were calculated. These documents, the appellant submitted, went to establish that he did not owe any monies to the complainant and that because the complainant's conduct was unethical, she was not a person who could be believed. 147Since this ground of appeal depends entirely upon the appellant being granted leave to rely upon this evidence in the appeal, it provides a useful opportunity to deal with all of the additional evidence sought to be relied upon by the appellant. Apart from the accounting documents referred to above, the other additional evidence sought to be relied upon by the appellant can be categorised as follows: (i) ASIC printouts concerning the company, BACM Pty Limited, BACF Pty Limited. (ii) Correspondence with the Police Integrity Commission. (iii) An affidavit of Ms Magoulias, 16 November 2011. (iv) Degrees and diplomas earned by the appellant. (v) A profit and loss statement of the company for the year ended 30 June 2007. (vi) An affidavit of the appellant setting out his qualifications and business experience. (vii) Judgment of Court of Criminal Appeal in Salmon v Regina [2011] NSWCCA 83 (refusal of application to review refusal of bail). (viii) Affidavit of Robert Charter, sworn 17 November 2011, affidavit John Williams, sworn 30 November 2011. 148Before dealing with each item of additional evidence, it is important to set out the relevant principles for the admission of such evidence on appeal. 149A preliminary, but important issue is whether any of the material constitutes "fresh evidence". The principles on which fresh evidence may be admitted on a conviction appeal have been considered on a number of occasions: R v Gallagher (1986) 160 CLR 392, Mickelberg v The Queen (1989) 167 CLR 259; R v Abou-Chabake [2004] 149 A Crim R 417 and GAR v R (No 1) [2010] NSWCCA 163 at [26]. 150For evidence to be fresh, it must be evidence that was not available at the time of trial. It is not contended by the appellant that any of the material upon which he now seeks to rely (except for the bail judgment) was not in existence or was not within his knowledge, or not available, for use at trial. The real complaint is that his counsel or the Crown did not adduce the evidence or chose not to rely upon it. 151In Gallagher the following statement of principle by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 was referred to with approval - "A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that that a miscarriage has occurred unless the fresh evidence has cogency and plausibility, as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance." 152In Mickelberg the test was expressed at 310 as - "There is no very precise formulation of the quality which must attach to fresh evidence before it will ground for a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": See, e.g. Gallagher ; Craig v The King ; Ratten ; Lawless. In essence, the fresh evidence must be such that when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J). Or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused]". ( Gallagher , per Gibbs CJ and per Mason and Deane JJ)." (footnotes omitted) 153Leaving aside that the proposed additional evidence is not fresh, there are other reasons why its tender should be rejected. Most of it is irrelevant. It lacks the cogency which would have enabled it to have had any effect on the outcome of the trial. 154The issue raised at trial did not depend upon whether or not the complainant had adhered to professional standards in her dealings with the appellant. They turned on the acceptance or otherwise by the jury of the complainant's evidence that the appellant had consistently told her that he would be personally responsible for her fees. 155Except for the affidavit of Mr Charter, none of the material is relevant to issues properly raised on this appeal. Most of the material relates to the appellant's complaint that counsel did not conduct his defence in accordance with his instructions and did not raise accounting and corporation issues. Other parts of the additional evidence seem to go to issues which were raised in the trial, but do not take those issues further. The affidavit of Ms Magoulias is to the effect that in about August 2008, she had a conversation with Ms Theodor and told her (on instructions from the appellant) that the appellant did not owe any money to the complainant. That evidence accords with the evidence of Ms Theodor which was that the first time that she became aware that the appellant was disputing his obligations to pay the account was in August 2008. 156Accordingly, I would reject the additional evidence except for the affidavit of Mr Charter. I propose to admit that affidavit because it is in the form of a testimonial as to the appellant's good character and it gives an indication of the evidence which could have been called on the appellant's behalf as to his character. That is a matter which is dealt with later in these reasons. Ground of Appeal 13 - In relation to a claim of right that the convictions are unreasonable in the circumstances. 157The appellant submitted that the jury's finding against him on the claim of right issue was contrary to the evidence and unreasonable. He submitted that the submissions made by the Crown as to his credibility were false and must have led to the jury rejecting his claim of right. The appellant submitted that his behaviour in March 2009 in demanding the return of the proceeds from the cashed cheques and in attending the office of the complainant for that purpose, was only consistent with a genuine belief on his part that no money was owed by him to the complainant and that the money from the cashed cheques had been wrongfully taken by her. 158The appellant's claim of right defence was only relevant to counts 1 and 3. It was not a question of whether the jury believed the complainant in preference to the appellant in relation to the claim of right. The question was whether the Crown had negatived this defence, i.e. had persuaded the jury to the necessary standard that the appellant did not genuinely hold such a belief at the time that offences 1 and 3 occurred. 159There was ample evidence, if accepted by the jury, to establish the Crown case and to rebut the claim of right defence. There was the evidence of the complaint and Ms Theodor, there was the undertaking given by the appellant and there were the cash payments and personal cheques provided by the appellant to the complainant. This ground of appeal has not been made out. Ground of Appeal 14 - In the context of the previous thirteen appeal grounds, the verdicts in this matter are unreasonable and unsupported by the evidence. 160By this ground of appeal the appellant relied upon all of the previous matters which he had raised and submitted that the verdict of the jury should be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence (s6(1) Criminal Appeal Act 1912). 161Having reviewed all of the grounds of appeal raised by the appellant, the only two issues which have been established are: (i) That the Crown should not have been allowed to submit in addresses that the appellant had told lies in relation to his address and in relation to his relationship with the companies BACF and BACM. (ii) That his counsel erred in deciding that he should not call character evidence in the appellant's case. 162Some further explanation is required in relation to counsel's decision not to call character evidence. Counsel explained that decision in his affidavit and oral evidence as follows: "11 I cannot specifically remember what details Mr Salmon had provided relating to character witnesses but I do not doubt that he provided character references. It would commonly be my practice to confer with character witnesses shortly before they were to give evidence in order to minimise inconvenience to them, particularly if I had been provided with written testimonials or proofs of evidence. 12 The events of the afternoon of 10 December where the trial judge expressed the view that the appellant deliberately misled her about his residential address in the course of the discussion about his bail conditions (at page 171) raised what I considered to be a much more significant issue in relation to Mr Salmon's character. 13 Without the benefit of any notes from the time I cannot be certain about any discussion I had with Mr Salmon about this issue after 10 December. I remember having some discussion with the Crown about the significance of the events of 10 December. I also remember having a discussion with Mr Salmon while he remained in the dock. His presence in the dock during such a discussion is most consistent with it taking place on the morning of 11 December during the period in which his bail was revoked. 14 My best recollection is that I had formed a view that any evidence of his good character would now be met by evidence that he had intentionally misled the Court during the course of the proceedings - evidence which may well have been fatal to any assessment of his character and credibility. The strength with which her Honour had indicated her perception of what had taken place is consistent with me coming to the conclusion that there was nothing to be gained by further ventilating the issue before her. On that basis I believe that I formed the view that there was no forensic benefit to be gained by adducing evidence of his good character and that I indicated to Mr Salmon that I would not raise evidence of his character." "Q. That was certainly correct. You don't seem to have pursued that with her Honour or anywhere else? A. No, because the issue that arose on the afternoon of that same day, the Thursday where it appeared to her Honour that Mr Salmon deliberately misled her about his address, my recollection is that then I raised that with the Crown the next morning and he indicated that it was his intention, if I raised character, to raise that deliberate lie to the Judge on that afternoon in the course of the proceedings and for that reason I determined that it just became impossible to raise character. " (T.59.8) "Q. Well what was there to fear about him being cross-examined on the topic of his residential address? A. What there was to fear was that her Honour made it clear, as I understood what she was saying to me, that she observed Mr Salmon somehow to affirm that that was a residential address and your Honour will see that there is some - that I went on just below line 20. I said: "Your Honour saw what your Honour saw from where your Honour sits and your Honour can assess that submission", that he tells me, my submission that Mr Salmon told me that he was trying to get my attention to indicate that it wasn't this alleged residential address and her Honour, as I understood it, made it very clear that she was of the view that Mr Salmon had indicated his agreement with that being put to the Court as a residential address at the time that I said it from the Bar table. ... Q. Well, again given what's on 171, I don't quite see why there was any rational risk of him being cross-examined on false residential address? A. The - from the environment in the Court room and from me not having eye contact with Mr Salmon at the time that I gave that residential address, I understood her Honour as indicating very clearly that in her view Mr Salmon had, I don't know if acquiesced is the right word but Mr Salmon had somehow indicated his agreement with that being provided to the Court as a residential address. Her Honour, as I perceived it, made it very clear that in her view he had deliberately misled her and I think in my affidavit I extracted those passages where her Honour used those words. Q. Paragraph 14 I think? A. Yes. Her Honour's view was very clear that he had deliberately misled her as opposed to it being confined to a misstatement on my part. If it had been a misstatement on my part, then it wouldn't have had any consequence. " (T.60.49 - T.61.35) "Q. Page 173 at line 8 she talked about being most concerned at "the circumstances that occurred before, immediately before I adjourned". Not sure what that is leading to? A. There was a short adjournment and I don't know how long that was on page 172 at line 16 and I think that that is the adjournment her Honour was referring to. So the chronological sequence when you just read page 171 to 172 there is some adjournment there and I don't have any recollection of what the duration of that was, but your Honour is right that it's clear that by page 171 at line 36 I was already in a position where Mr Salmon had brought to my attention that there was some problem about that address that was provided but my concern, in terms of its consequences for raising character I think is encapsulated at page 173 at line 10 where her Honour, you know, says to me "as you quite correctly pointed out, I was here". Her Honour had seen something that I hadn't seen because I wasn't looking at Mr Salmon at the time I gave that address." (T.62.24) 163As already indicated, if her Honour had seen something which indicated that the appellant acquiesced in his counsel providing incorrect information as to his residential address, then the decision by counsel not to call character evidence was certainly understandable. No counsel would wish favourable character evidence to be met with evidence that his client had provided a false address when specifically requested by a trial judge in the course of a trial. 164However, the likelihood of that occurring should also have been considered by counsel. Her Honour was not competent to give evidence - Evidence Act, s 16 - and any questioning by her Honour or anyone else to suggest that her Honour had seen anything misleading would have to have been excluded as unfair. There was, of course, the possibility that counsel would have needed to bear in mind, or eliminate by enquiry, that someone else, perhaps the judge's associate, had seen something but whether during the exigencies of a trial those enquiries could have been made, one does not know. What to do in the circumstances was a decision properly within the authority of counsel and there is no basis for the appellant complaining that character evidence was not called. 165There is, however, another possibility which has already been referred to in relation to the circumstances surrounding the revocation of the appellant's bail, i.e. that her Honour misunderstood what had occurred. In that scenario, the correction by the appellant of the incorrect information appears from the transcript to have been as prompt as was reasonable in the circumstances. 166Since it is not possible at this point in time to determine exactly what did occur, it is necessary to consider whether the failure to call the character witnesses, taken with the incorrect submissions by the Crown concerning the telling of two lies, constituted a miscarriage of justice or that otherwise caused the trial to miscarry. 167In relation to the submission that the appellant was lying in the two respects referred to, counsel for the appellant in his address said: "The Crown referred you to the cross-examination yesterday as to whether or not he knew that he was director or a secretary or had some relationship with BACM or BACF. Well again that wasn't a lie I'd suggest. He told you that if he was the secretary that was a service that his company provided and he also told you that he was a director of dozens of companies. More importantly you might think it's something that's a very little, if any, significance to the real question in this trial." (T.316.46) "And the Crown said that he couldn't even tell the truth about where he lived, in the record of interview. Well of course he wasn't asked where - he was asked what his address was. Now you might think Mr Salmon is someone who's very careful about answering things precisely in terms that there are. And that's one of the aspects of the way he gives evidence that the Crown says in effect makes him less reliable. Well that's a matter for you to determine, that's not a lie. He was asked his address and he told them an address and it was his mailing address, it's not a lie. And anyway what bearing does that have on your assessment of his state of mind about whether she was entitled in March 2009 to bank the cheques and whether he had a legal right to go and recover the money that those cheques represented." (T.317.21) 168Although the appellant did not have the advantage of a direction from the judge that the Crown was not entitled to submit that the appellant told lies about those two matters, it is not without significance that the Crown's submission was fully and appropriately answered by counsel for the appellant in submissions. It was not allowed to stand unchallenged and the challenge made accurately reflected the evidence. 169The affidavit of Mr Charter of 17 November 2011 provides an indication of the sort of character evidence which could have been called on behalf of the appellant. Mr Charter had known the appellant since July 2008 and had worked with him from that date until May 2009. Mr Charter was prepared to say that the appellant was a person of good character and had been employed in a senior role in a public company where his maturity and integrity was never in question. He regarded the appellant as a person of impeccable character. The appellant in his submissions said that he had five other character witnesses. The character evidence given in the sentence proceedings indicates that their evidence would have been similar to that of Mr Charter. 170While character is important in any criminal case, and was particularly so in this case where an important part of the Crown case depended upon the acceptance of the evidence of the complainant, I am not satisfied that the Crown's incorrect submission as to two lies and the non-calling of character witnesses caused a miscarriage of justice or caused this trial to miscarry. The incorrect submissions of the Crown were well balanced by the appellant's counsel in his submissions. The character evidence, while helpful to the appellant, appears to have been of a general kind. This would have been of only limited value in this case, which turned upon specific testimony by the Crown witnesses as to events which they observed or participated in. 171The evidence against the appellant was very strong indeed. In his electronically recorded interview, he conceded the physical activities necessary to establish counts 1 and 3. He also in relation to count 3, and to a lesser extent count 1, provided sufficient evidence to establish the mental element of those offences. In addition, the Crown had eyewitnesses in the complainant, Ms Theodor and Mr Zhao. Their evidence went to count 2, as well as to counts 1 and 3. Finally, the documentary evidence overwhelmingly supported the evidence of the complainant, in particular the cash payments, the personal cheques and the personal undertaking to pay the complainant's fees. 172I am satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of all three counts. Not only that, having made my own independent assessment of the evidence, both as to its sufficiency and quality, I am satisfied beyond reasonable doubt that the appellant was guilty of these three counts. (SKA v The Queen [2011] HCA 13, 243 CLR 400.) 173Alternatively, even if the two issues which have been found in favour of the appellant were of greater importance than I have assessed, I would dismiss the appeal on the basis that no miscarriage of justice has actually occurred. This is because, as already indicated, on my independent assessment of the evidence, I am satisfied beyond reasonable doubt that the accused was guilty of the three counts. 174I would dismiss the appellant's appeal against conviction. Sentence appeal 175Notwithstanding the fact that the applicant has served his sentence of imprisonment, he wishes to challenge the sentence which was passed upon him. He is entitled to do so. The factual background and the sentences passed on the applicant have already been set out. Ground of Appeal 1 - That the learned trial judge erred in failing to have regard to the fact that the said offending contact could be dealt with in the Local Court where the maximum penalty of 12 months would apply. 176The applicant submitted that although evidence was not led as to the value of the computer, stealing from the person is the only offence in Pt 4 Div 1 subdivision 2 of the Crimes Act 1900 that can be dealt with summarily. Where the value of the thing stolen exceeds $5000 it is a Table 1 offence and subject to a maximum penalty of 2 years imprisonment (s267(2) Criminal Procedure Act 1986). Where the value does not exceed $5000 it is a Table 2 offence and is subject to a maximum penalty of 12 months imprisonment or a fine of 50 penalty units or both. 177The applicant submitted that cases such as R v Trindall [2005] NSWCCA 446 at [37] - [38] and Yassien v R [2006] NSWCCA 15 at [29] - [30] are authority for the proposition that the maximum sentence available in the Local Court may justify "some mitigation of sentence" that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. While her Honour was not bound by the jurisdictional maximum that could have been imposed in the Local Court, it was a matter which she should have taken into account in the exercise of her discretion. 178This ground of appeal has not been made out. Section 94 Crimes Act provides for three separate offences - robbery, assault with intent to rob and stealing from the person. Of those three offences, it is only the offence of stealing from the person that might (if the necessary prerequisites are met) be dealt with summarily, pursuant to s265(1) and Schedule 1, Table 1, clause 3b Criminal Procedure Act 1986. The applicant, however, was convicted of robbery not stealing from the person. Accordingly, count 3 could not have been dealt with in the Local Court and her Honour did not err by failing to have regard to that consideration. Ground of Appeal 2 - That the learned trial judge erred in failing to reflect her finding as to the low objective seriousness of the robbery in the sentence. Ground of Appeal 3 - That the learned trial judge erred in her application of the principles of totality by partially accumulating the sentences and for effectively "double punishing" the offender for the assault charge. Ground of Appeal 4 - That the learned trial judge erred in that discounts for protective custody were not applied to the sentence. Ground of Appeal 5 - That material errors, fabrications and misunderstandings of fact influenced the sentencing of the applicant. Ground of Appeal 6 - That the sentence is manifestly excessive. 179These grounds of appeal can effectively be dealt with together, since they raise similar and overlapping considerations. 180The applicant submitted that her Honour failed to properly consider his offending in context. (a) The incidents arose out of a business dispute over a relatively small amount of money. (b) That the computer and attachments were returned to the victim within a few days of being taken. (c) There was little, if any, premeditation and planning in that as her Honour found, the instances were "reflective of [the offender's] rage and his loss of control". (d) The violence exhibited was minimal with no physical or psychological sequelae. 181The applicant submitted that the objective seriousness of all three offences was low. In relation to the robbery, the finding was that it was at the bottom of the range of seriousness for offences of that type. Although her Honour made no finding about the larceny offence, the applicant submitted that it was also at the bottom of the range. The applicant submitted that it was not clear what her Honour meant by characterising the assault as "serious" in that it involved a single instance of pushing. The applicant submitted that it also was at the bottom of the range of seriousness for offences of that type. 182The applicant submitted that since all of the offences were at the bottom of the range, and since they effectively involved a single episode of offending, her Honour should have ordered that the sentences be served concurrently. In failing to do so, she did not observe the principle of totality. 183The applicant submitted that the sentence for the robbery offence was quite out of proportion with the sentences passed in respect of the larceny and assault offences and was in the circumstances manifestly excessive. It failed to have regard to her Honour's own finding that it was at the bottom of the range. It failed to have regard to the circumstances of the offence in that it was inextricably linked with the other two offences which were themselves comparatively minor in objective seriousness. 184The applicant submitted that her Honour did not properly take into account his subjective case and in particular, that he was aged 42, had not previously offended and to the observation and knowledge of the four character witnesses who gave evidence in the sentencing proceedings, had never demonstrated any tendency towards violence in the past. The applicant submitted that it was not open to her Honour to find that she was not satisfied that he would not be violent in the future. This was not only contrary to the unchallenged evidence of the character witnesses but was contrary to the assessment of the psychologist who had provided a report to the court. 185I am satisfied that her Honour did not adequately take account of the principle of totality in accumulating the sentences in the way in which she did. The applicable principle is clear. In Johnson v R [2004] HCA 15; 205 ALR 346; 78 ALJR 616 at [18] the High Court said: "In Mill Wilson Deane Dawson Toohey and Gaudron JJ adopted a statement from Thomas "Principles of Sentencing" ... at pp 56-7: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences"." 186Similarly in Cahyadi v R [2007] NSWCCA 1 at [27]; 168 A Crim R 41 Howie J said: "27 ... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 187The factual matrix of these three offences makes it clear that they were part of a single episode of criminality. The sentence for the robbery offence should have embraced the total criminality of the three counts. The sentences passed by her Honour should have been fully concurrent. 188I am also of the opinion that there is considerable force in the applicant's submission that the sentence for count 3 was manifestly excessive. There seems to be a substantial disconnect between her Honour's assessment of the low level of objective seriousness of the robbery offence and the sentence which was passed. A sentence of 2 years with a non-parole period of 12 months for an offence which was at the bottom of the range of objective seriousness for offences of this kind (her Honour's own finding) appears on its face to be excessive. This is particularly so when regard is had to the objective circumstances of the offence. 189Although her Honour referred in her remarks on sentence to the applicant's subjective case (which was strong), it does not appear to be reflected in the sentence passed. The applicant was a person of mature years, had no previous offences and the character evidence called on his behalf was unanimous that these offences were totally out of character. While I appreciate the discretionary nature of the sentencing process, I am satisfied that her Honour's exercise of the sentencing discretion did miscarry and that the sentence passed for the robbery offence was excessive. I am satisfied that a lesser sentence is warranted. 190In re-sentencing the applicant, I find special circumstances justifying a departure from the statutory ration in s44 Crimes (Sentencing Procedure) Act 1999. I do so because this was the applicant's first time in custody. 191Accordingly, in relation to the applicant's application for leave to appeal against sentence, the orders which I propose are: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed by her Honour on 19 March 2010 are quashed. (4) In lieu thereof, the applicant is sentenced as follows: (a) On the charge of larceny, he is sentenced to a fixed term of imprisonment of 1 month to commence 14 December 2009 and to conclude 14 January 2010. (b) On the charge of assault, he is sentenced to a fixed term of imprisonment of 3 months to commence 14 December 2009 and to conclude 13 March 2010. (c) On the charge of robbery, the applicant is sentenced to a fixed term of imprisonment of 6 months to commence 14 December 2009 and to conclude 13 June 2010. 192RS HULME J: I agree with Hoeben JA 193SCHMIDT J: I agree with Hoeben JA.