SMALE, Garry Anthony v R

[2007] NSWCCA 328

Court of Criminal Appeal (NSW)|2007-10-26|Before: Mason P, James J, Howie J, Patten AJ

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2007-10-26

Before

Mason P, James J, Howie J, Patten AJ

Source

Original judgment source is linked above.

Judgment (113 paragraphs)

[1]

Introduction 3 HOWIE J: The appellant stood trial before Patten AJ (the Judge) on a charge of murder. The jury convicted him and, as a result, on 26 August 2005 the Judge sentenced him to imprisonment for 18 years with a non-parole period of 13 years and 6 months. That sentence commenced on 18 March 2002 and the appellant is eligible for release to parole on 17 September 2015. The appellant had also previously pleaded guilty to a charge of armed robbery with a dangerous weapon while in company. The Judge sentenced him for that offence on 1 September 2005 to imprisonment for 13 years with a non-parole period of 9 years and 9 months. That sentence was wholly concurrent with the sentence for murder. He appeals against conviction for the offence of murder and makes application for leave to appeal against the sentences for both murder and armed robbery. 4 The Crown case was that the appellant and a man named Shane Wigney robbed a hotel in Leichhardt in the early hours of 19 July 2001. Wigney was armed with a loaded revolver and in a struggle with a bar manager fired two shots, one of which struck and killed him. Wigney eventually pleaded guilty to murder and agreed to give evidence against the appellant. As a result of that undertaking he received a discount of the sentence both for the murder and for an unrelated offence of armed robbery. 5 In brief it was Wigney's evidence that the appellant knew before the robbery that the revolver was loaded because he had wiped the weapon and the bullets in order to destroy any fingerprints. Wigney maintained that during the robbery the appellant had been armed with a knife. 6 The appellant admitted that he was involved with Wigney in the robbery, as he had pleaded guilty to an offence of armed robbery arising from the incident. However it was his case that Wigney was not telling the truth as to the appellant's involvement with the pistol and he argued that the jury could not be satisfied beyond reasonable doubt that the appellant had any knowledge that the weapon was loaded. The appellant did not give evidence at the trial nor had he participated in an interview with police. Therefore there was no account given by the appellant of his involvement in the robbery or his knowledge or otherwise of the fact that Wigney was in possession of a loaded firearm. 7 In light of the grounds of appeal relied upon by the appellant it is not necessary to review the evidence of the witnesses called by the Crown in any detail. The Crown relied upon the head of murder that used to be called "felony murder" and now sometimes called "constructive murder". The case for the Crown was based upon an allegation that the act of the accused causing death of the deceased was done by him during or immediately after the commission by the accused, or by some accomplice with him, of a crime punishable by imprisonment for life or 25 years: s 18(1) of the Crimes Act 1900. Here the offence relied upon was armed robbery with a dangerous weapon and in company contrary to s 97(2) of the Crimes Act. There was no dispute that both Wigney and the appellant were committing that offence at the time that the victim was killed. 8 A "dangerous weapon" for the purposes of s 97(2) of the Crimes Act is defined relevantly as being "a firearm (within the meaning of the Firearms Act 1996)". "Firearm" is defined in the Firearms Act as follows:

[7]

(iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose. 11 The only element in issue at the trial of the appellant was element 5 set out above in the summing up, that is element (iii) in Sharah. To prove that element the Crown substantially relied upon the evidence of Wigney as to the involvement of the accused with the weapon in preparation for the robbery. 12 In light of the issues raised it is convenient to consider the grounds of appeal in a different order to the way they have been numbered. There is some overlap between the grounds which generally raise two matters said to have caused the trial of the appellant to miscarry: firstly, the appellant's bad character was directly, or by implication, impermissibly raised beyond that necessary for the jury to determine the issues before it and, secondly, the trial judge misdirected the jury as to the nature of the prosecution case. 13 Although the first two grounds of appeal are based upon the prosecutor's address, it seems to me to be appropriate first to deal with the grounds relating to the raising of the appellant's bad character. This is because the complaint in respect of the prosecutor's address is that, at least by implication, it asserted that he was a professional armed robber. The full impact of the prosecutor's address has to be viewed in the context of the evidence, if any, permissibly before the jury that implicated the appellant in criminal conduct other than that which arose from the charge in the indictment and in the context of directions and warnings given by the trial judge in relation to the character of the appellant. 14 Before considering any of the grounds it is necessary to set out in summary the account given by Wigney of the appellant's involvement with the weapon used in the robbery and the robbery itself.

[20]

Ground 7 There was a miscarriage of justice because the trial judge should have excluded the evidence of the purchase of the gun used in the offence. 26 Ground 3 relates to a number of pieces of evidence said to have been irrelevant or unduly prejudicial to the appellant. When considering these grounds of appeal it is important to note that the appellant at his trial was faced with the fact that, from his plea of guilty to the armed robbery offence and the conduct of his case, the jury were aware that he had voluntarily participated in an armed robbery knowing that Wigney had a gun and the appellant being in possession of items of disguise and tools that permitted him to steal a vehicle to be used in the robbery. It is also important to note that the only issue before the jury was whether the Crown could prove that the appellant had in contemplation that the gun, which he knew was in the possession of Wigney, might be discharged; that is that he contemplated that it might be loaded. 27 In my opinion the fact that evidence was improperly before the jury as to the appellant's bad character could, in the circumstances of this case, only lead to a miscarriage of justice if there were a reasonable possibility that the jury might have used that evidence to reason that the appellant must have contemplated that the gun might be discharged. It cannot be the case that any prejudicial evidence of whatever nature could possibly have led to a miscarriage simply because it might have indicated that the appellant had committed other offences than those charged against him. It was an admitted fact that he was a person who was prepared to embark on a planned armed robbery, to steal cars for that purpose, and had in his vehicle items such as tools and balaclavas that could be used to commit such an offence. 28 The appellant complains about the following evidence being before the jury from the examination or cross-examination of Wigney: the gun used in the robbery was purchased with stolen gold ingots belonging to the appellant and others; the gun was purchased by Wigney in the presence of the appellant from "our fence"; the appellant had been involved in "other occasions" involving the gun; the gun had been purchased for protection in "Marrickville and Lebsville"; and that the appellant sold heroin. There is also complaint that Wigney indicated in answering questions that there was information that he was not permitted to reveal and that the jury would have inferred that this information related to other criminal activity of the appellant. 29 Objection was taken to the evidence of the purchase of the gun on the basis that it was overly prejudicial because that conduct was itself illegal. The Crown wished to lead the evidence to show the connection of the accused to the weapon prior to the robbery. The judge permitted the evidence to be given. The evidence of Wigney was that the appellant was present when the gun was purchased and was a part owner in it. 30 The evidence of the appellant as a joint owner of the weapon and present when it was inspected and purchased was in my opinion clearly relevant to the jury's assessment of the evidence of Wigney that the appellant wiped the gun and bullets shortly before the robbery. The jury could also use the fact that he was a part owner of the weapon as one of the circumstances relevant to whether he had in contemplation that the weapon might be loaded at the time of the robbery. If he had no proprietary or other interest in the weapon, it may have been more likely that he would not have been in the position to have any view about whether the weapon was loaded or not. 31 The fact that the weapon had been in the appellant's premises prior to the robbery was also relevant and was not the subject of objection. But that evidence alone, while showing some connection of the appellant with the weapon, lacked the significance of the evidence as to his involvement in its purchase. It was not inconsistent with the appellant having no involvement with the weapon before the robbery that it happened to be in his flat at the time that Wigney was also present. 32 In my opinion the evidence of the purchase of the weapon was of significant probative value. It was well open to the Judge to refuse to reject it by determining, as he did, that in all the facts and circumstances of this particular case its probative value was not outweighed by unfair prejudice: cf s 137 of the Evidence Act 1995. Minds might reasonably differ as to whether evidence should be rejected under s 137 and this Court will not hold that the discretionary judgment that the application of the section involves has been wrongly determined in favour of the Crown unless it was not reasonably open for the trial judge to admit the evidence. 33 It is clear that, simply because evidence reveals incidentally that an accused has committed some other criminal activity than that arising from the charge, it does not follow that the evidence is thereby rendered inadmissible under s 137 or otherwise. The evidence here was not led to prove any propensity on the part of the appellant and was not to be used for that purpose. I do not see how the jury could use the fact that the appellant was involved in the purchase of the weapon to reason improperly that he knew, or had in contemplation, that the weapon was loaded on the evening of the robbery. Nor, in light of the appellant's voluntary involvement in an armed robbery, knowing that his co-offender had a weapon and being prepared to steal one or more motor vehicles on that evening, could it be said that the evidence might simply prejudice the jury against the appellant because the purchase of the weapon was illegal. There was no error in the admission of the evidence of the appellant's involvement in the purchase of the pistol used in the robbery. 34 Next it is submitted that the evidence that the weapon was purchased with stolen gold ingots indicated that the appellant had been involved in other criminality and, therefore, unduly prejudiced him. This evidence was not the subject of specific objection. Although defence counsel objected to the evidence of the appellant's involvement in the purchase of the weapon, it did not follow that he should be taken to have objected to every aspect of that evidence. If he saw particular prejudice in the mention of the gold ingots, he should have objected to that particular part of the evidence. The fact that the gold ingots were stolen was a matter introduced by defence counsel in questioning Wigney. The simple fact that this evidence tended to suggest that the appellant may have been involved in some other illegal activity with Wigney, could not itself have resulted in a miscarriage of justice. There being no objection to the evidence, there was no error of law in it being before the jury. 35 A complaint is now made about Wigney's evidence of the reason for the purchase of the weapon: for protection "in the southern districts of Marrickville and Lebsville". It is asserted that the jury would have understood that the appellant was so involved in crime that he needed protection. I do not accept that this is the implication of the evidence that a jury might have adopted. In any event no objection was taken to the evidence and no remedy was sought by discharge of the jury, direction or otherwise. Again there was no error of law involved in the evidence being before the jury and no miscarriage of justice arises. 36 Similarly there was no objection to the fact that Wigney referred to the weapon being purchased from "our fence". Nor was any direction sought in relation to the evidence. The obvious reason for the failure of defence counsel to raise any of these matters is that he did not see these details as having any impact at all upon the fairness of the appellant's trial in light of the issues before the jury and the facts that had been conceded by the appellant by his plea of guilty to the armed robbery offence. With respect that was a sensible, reasonable and appropriate stance to adopt. 37 These complaints also have to be seen in light of the fact that the jury were being asked by the appellant to reject the evidence of Wigney in respect of accounts given by him that suggested that the appellant would have contemplated that the weapon was loaded. The questioning of Wigney was on the basis that he was not telling the truth in relation to the appellant's involvement with the weapon. So to some degree it did not matter what Wigney said about the circumstances surrounding the purchase of the weapon because the jury was being asked to disbelieve that evidence. If the jury did not accept that the appellant had been present when the gun was purchased, it did not matter whether stolen gold ingots were used to buy it or not. 38 The appellant was asserting that Wigney was trying to paint him in a bad light in respect of his involvement in the robbery in order to obtain his sentencing discount. Hence it was alleged that he was tellingly lies about the fact that the appellant was armed with a knife during the robbery. Accordingly the jury would have understood that the defence was asserting that Wigney would falsely implicate the appellant in other criminal activity to the extent that he was permitted to do so in order to carry out his part of the bargain for which he was rewarded by a reduction in the sentences imposed upon him. 39 This was a matter to which the trial judge referred in the summing up in his warning to the jury as to the evidence of Mr Wigney as a person criminally involved in the offence about which he was giving evidence: see s 165 of the Evidence Act. The warning included the following:

[26]

Defence counsel sought a discharge of the jury and the Crown indicated that he had not meant to read that part of the interview and had agreed earlier that he would not do so. 41 The Judge refused to discharge the jury on the basis that, having regard to the issues in the trial and the evidence before the jury, the trial had not been rendered so unfair by the Crown's mistake that it could not be cured by a direction. Immediately after rejecting the application for a discharge of the jury, the Judge directed the jury as to the purpose of the Crown reading portions of the witness's statement in answer to questions put to Wigney about the way the statement was taken from him and the inadvertence of the Crown reading out a question and answer that "raised a question of heroin". The jury were told that "heroin…….has nothing whatsoever to do with this case". They were also instructed to put out of their minds "any question of heroin or drug use or otherwise in this case………it has nothing whatever to do with it". 42 It was very unfortunate indeed that the Crown read out the question and answer. In many trials such an error would have caused the trial to miscarry. But in my opinion there was no irremediable prejudice to the appellant from this material coming before the jury in the circumstances of this case. As I have already noted, the only issue was whether the appellant contemplated that the pistol might be discharged during the robbery and the jury were being asked to disbelieve Wigney in relation to his allegations against the appellant. In my opinion the jury could not have been affected in determining that question by any suggestion that the appellant might have been a drug supplier. Had the issue, for example, been whether the appellant was involved in the robbery, the evidence would have been highly prejudicial because the jury might have used the evidence to reason that it was more likely that he was involved in that offence. But that material could not have made it more likely that he contemplated that the weapon was loaded and, provided that the judge warned the jury about using the evidence to the general prejudice of the appellant, there was no unfairness resulting from the fact that Wigney alleged he was a drug dealer. I will shortly refer to what the Judge said about the appellant's character to the jury during the summing up and in my opinion that direction was perfectly adequate to ensure that the jury did not misuse any suggestion of the appellant's bad character. 43 Complaint is raised that Wigney indicated during his evidence that there were matters about which he was not allowed to give evidence or that he was limited in what he could say in answer to questions asked of him by defence counsel. The appellant asserts that, from the occasions when Wigney expressed difficulty in answering questions or showed frustration because he was not allowed to talk about certain topics, the jury would have inferred that the information which Wigney was not permitted to reveal was other criminal offences committed by the appellant. 44 There were numerous occasions when Wigney indicated during cross-examination that he would want to answer the question or allegation put to him in a certain way but felt constrained by what he was permitted to say. Not all of these instances have been the subject of a ground of appeal. It is important therefore to consider the particular instances about which complaint is made not as isolated instances or by giving them greater significance than they might otherwise have received by taking them out of context. As will be explained shortly, the difficulty for the witness arose because of a decision of the trial judge to exclude certain evidence, that decision being extremely favourable to the appellant. The result of the ruling however was to give an air of unreality to the resolution of the issue as to the appellant's contemplation of whether the weapon might be discharged and the evidence of Wigney that might touch on that issue. 45 So complaint is made about that part of Wigney's answer that was struck out by the trial judge in the following exchange:

[29]

Although defence counsel applied for a discharge in respect of that answer, he added,"………. I don't make the application terribly strongly ." He asked the judge to warn the witness to " answer only the questions ". 46 It is submitted that the jury would necessarily have taken that answer to imply that the appellant had been involved on other occasions in armed robbery offences where the gun had been used. I do not accept that submission. Had trial counsel thought that was a reasonable interpretation of the words, he would be expected to have taken his objection and his request for a discharge much more strenuously than he did. It seems to me that the jury would have understood that Wigney was not answering the question asked about what the appellant said about cleaning the bullets, but was explaining why the bullets were being cleaned. The answer is not suggesting past activity of the appellant but past activity of the witness. That this would be the interpretation to be given to the answer is confirmed by later cross-examination when Wigney explained that he was taught the necessity of wiping the gun and bullets of fingerprints from persons he had met when "living on the street". 47 A difficulty for counsel and for the witness was that the trial judge had ruled as inadmissible evidence that the Crown sought to lead to the effect that a week before this robbery the appellant and Wigney had been involved in another armed robbery with the same weapon and when Wigney had discharged it. As a consequence of that ruling Wigney had been warned not to refer to that matter. Although he was permitted to refer to the discharge of the weapon "in the street", he was not allowed to give an account of the circumstances in which the weapon discharged on that occasion. Counsel, therefore, had to tread with some caution in questioning the witness about matters that were so closely associated with the prior robbery such as the appellant's involvement with the gun and bullets. A wide or open-ended question about the appellant's involvement with the weapon was always going to be fraught with danger. It would have been clear to the jury that there was some restriction imposed upon Wigney in relation to divulging certain information, but they would not in my view have been able to ascertain what that information was or that it pertained to the appellant, let alone that it concerned other criminal offences committed by him. 48 An example of the difficulty Wigney had in answering questions because of restrictions imposed upon him is the subject of further complaint. When he was being cross-examined about the discount he received as a result of his co-operation, the following took place (T112):

[42]

[32] In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed. 55 Two matters may also be noted. Firstly, it will rarely be necessary to consider the facts of any decided case to determine whether in the particular case before the Court a miscarriage of justice has occurred. Secondly, it is clear that, simply because the Court may deprecate the conduct of the prosecutor, it does not follow that the conviction should be set aside: see for example Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309. Ultimately the question of whether a miscarriage of justice occurred may depend upon the strength of the prosecution evidence and the risk of the address unfairly tipping the balance in favour of the Crown. 56 In this case the contention is that the Crown Prosecutor's address raised material prejudicial to the appellant by suggesting that he was of bad character in general and that he had committed other offences of armed robbery in particular. The Court is asked to consider the contents of the address in light of the complaints made about inadmissible or unduly prejudicial material being placed before the jury that were subject to the grounds of appeal dealt with above. 57 However, in my opinion the address, although much of it was irrelevant to any issue before the jury, could not have had a detrimental impact upon the fair trial of the appellant. This is so even without having regard to the evidence of the appellant's bad character legitimately before the jury or what the trial judge said to the jury regarding it. Quite frankly and with all respect to the prosecutor, I do not understand what point the prosecutor was seeking to make in the passages about which complaint is made, and I doubt that the jury would have been in any better position. This was a very simple case with one issue for the jury to consider: did the appellant contemplate that the firearm, which he knew was in the possession of Wigney at the time of the robbery, might be discharged during the course of the robbery? The flourishes of advocacy set out in the following passages were hardly to the point and were liable to distract, rather than assist, the jury. 58 Having indicated to the jury what was the issue that was in dispute and having noted that members of the jury were not and could not be lawyers, the prosecutor went on:

[58]

His Honour : I decline your application Mr McCrudden. 66 The application for the discharge of the jury was based upon the belief of defence counsel that the prosecutor had used the term "tools of trade" more than once. He admitted that as recorded in the transcript, there was but one such reference and that "by itself it does not amount to much". Apparently there was nothing else in the address that caused counsel concern. Simply because the prosecutor might have referred to the appellant having a robber's "tools of trade" in his possession would not to my mind imply to a jury that the appellant was by profession a robber. On the application as made, it was obviously correct for the trial judge to summarily reject it. 67 It is unfortunate in the extreme that, if defence counsel thought that there was anything about the address of the prosecutor that suggested that the appellant was a professional armed robber, it was not addressed once the discharge application was refused. It would have been easy for the matter to have been corrected because the simple fact was that the appellant was not a professional armed robber. He had no conviction for robbery either armed or otherwise. The Crown could simply have been asked to concede that fact or to withdraw any suggestion to the contrary that might have arisen from the address. But no step was taken once the discharge application was refused. In any event I do not believe that the address did imply that the appellant had a record for armed robbery offences or that he was a professional robber. 68 Whether or not the argument of the prosecutor was persuasive or whether it needed to be aided by some of the prosecutor's adversarial flourishes, such as the reference to Robin Hood and Maid Marion, is a matter for debate. With respect the address was confused and confusing. The overall impression from the manner in which the trial proceeded and the greater part of the address is that the central issue for the jury to determine was whether Wigney was to be believed in his evidence that the appellant wiped the gun and bullets. The reference to professional robbers and their requirements added little or nothing to that question. But I do not believe that the jury would have received any implication from it that the accused was in the profession of an armed robber at the time and, therefore, would have contemplated that the gun in the possession of Wigney at the time of the robbery was loaded. I do not believe that the address of the prosecutor resulted in a miscarriage of justice and I would reject these grounds of appeal. I am of the same view even if the address is considered in light of the complaints made in Ground 3.

[60]

"……….This is a direction given where the Crown case is substantially comprised of the evidence of a single witness unsupported by any other evidence. The direction stresses that, before the jury could convict upon the evidence of that witness, they must be satisfied beyond reasonable doubt that the witness is reliable. The direction requires the jury to scrutinise the evidence with care before convicting upon it: R v Murray (1987) 11 NSWLR 12." 71 It has never to my knowledge been held that the absence of a Murray direction will necessarily result in a miscarriage of justice. The failure of a judge to give such a direction does not result in a fundamental defect in the trial that goes to the root of the proceedings as the appellant contends. The direction merely emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt. 72 In the present case the jury were given a warning under s 165 of the Evidence Act as to the potential unreliability of the evidence of Wigney. Nothing more was asked for by defence counsel. This was acknowledged in the written submissions of the appellant, even though in oral argument counsel sought unsuccessfully to construe a request made by defence counsel at the trial, to which I will refer shortly when dealing with the next ground of appeal, into a request for a Murray direction. Under the pressure of argument that submission appears to have been withdrawn. 73 In my view the directions and warnings given by the trial judge to the jury about the evidence of Wigney generally and its potential unreliability were more than adequate to emphasis the necessity for the jury to scrutinize the evidence of Wigney to ensure that they were satisfied of his reliability before convicting upon his evidence. This was no requirement to give a Murray direction especially as defence counsel did not seek one. The ground should be rejected.

[83]

[149] Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49]. 84 There was a degree of confusion in the Crown's final address to the jury as to just what the Crown case was, if any, once the major allegation in Wigney's evidence as to the appellant cleaning the weapon and the bullets just prior to the robbery was put to one side. The Crown never plainly asserted that, if the jury disbelieved the evidence of Wigney about the appellant cleaning the gun and bullets, it could nevertheless convict him of the offence of murder. The reliance upon the submissions about the conduct of a professional robber, as far as I understand the argument, was that the jury would find the appellant and Wigney had what they required to carry out the robbery in a professional manner and this included a loaded gun. The prosecutor's argument was that a gun was of no use to a robber acting professionally unless the gun was loaded. 85 The Crown did not in opening to the jury make it clear, other than by reference to the evidence of Wigney, how it intended to prove that the appellant had the necessary contemplation that the weapon might be discharged. The Crown's opening was nothing more than a recitation of the account that Wigney would give and then an indication to the jury that they would have to determine whether the appellant contemplated that the weapon might be discharged. As recorded, the prosecutor was confused about who it was that loaded the weapon, informing the jury that Wigney had done so while telling the appellant that he was polishing the bullets to get rid of fingerprints. That of course was not Wigney's evidence. 86 On one view the prosecutor's opening failed to identify the basis upon which the Crown was going to seek to prove the appellant's guilt. The jury, the trial judge and defence counsel could only reasonably infer that the Crown case was based solely upon the totality of the evidence of Wigney. There was not the slightest suggestion that there was a case independent of his evidence. Certainly there was no indication by the Crown that it would be asking the jury to infer the contemplation of the appellant that the weapon might be discharged other than from the fact that he knew it was loaded. 87 I cannot ascertain from the prosecutor's address any clear submission that the jury might reject, or fail to accept, the evidence of Wigney that the appellant cleaned the weapon and bullets and yet find the offence proved. The whole of the address is based upon an assumption that the jury will find that the appellant knew that the weapon was loaded. True it is that the prosecutor at one stage made a statement to the jury indicating that, if the appellant knew that the co-offender had a weapon, he would have contemplated that it might be discharged. But this was in the context of having a weapon with bullets because "you would want to use it as a threat" and because Wigney "knew that he had the availability of these bullets in case he would be assailed". This passage of the address ends with this submission,

[84]

"……….if you decide that [the appellant] knew that the bullets were there, then you would have no difficulty whatsoever in determining that he contemplated that this gun might go off and somebody might get hurt." 88 If the Crown was seeking to make out a case independent of the evidence of Wigney, it would be expected that it would be made clear to the jury the line of reasoning that it would follow to find that the accused contemplated that the gun might discharge notwithstanding that they were not prepared to accept the fact that the appellant wiped the gun and the bullets. The Crown would be expected to identify with clarity to the jury what evidence they should accept and how that evidence could lead to a finding that the appellant contemplated that the weapon might be loaded and, therefore, might be discharged. But that was a line of reasoning never explained to the jury by the Crown Prosecutor. 89 The jury might have reasoned that any person who was going to commit an armed robbery on a hotel with a co-offender knowing that this person was armed with a real weapon capable of being discharged must have contemplated the possibility that the weapon might be discharged unless the person had made inquiries to satisfy himself that this was not a real possibility. The jury was entitled to look at the facts that were not disputed by reason of the appellant's plea of guilty to the robbery offence in a common sense view of the criminal activity in which the appellant was engaged with Wigney. But again this was not an argument placed in any lucid way, if at all, before the jury. 90 Although the trial judge told the jury twice that the Crown was not necessarily relying upon the evidence of Wigney, I do not with respect understand how he obtained that impression from anything said by the prosecutor unless, as is quite possible, he was confused by the prosecutor's address. But it was necessary for the Judge to explain to the jury the basis upon which the jury might find the accused guilty on the Crown's submission if it rejected all or part of Wigney's evidence. 91 The Judge told the jury that they could find from the concessions made by defence counsel and the way the trial was conducted the following two facts: firstly, that the appellant participated in the relevant robbery and, secondly, that Wigney had the pistol that was in evidence and the appellant knew this fact. The Judge did not indicate what inferences, if any, might flow from these two accepted facts. 92 Just before he came to review the evidence of Wigney the Judge told the jury that the Crown did not accept that his evidence was essential. The judge said:

[91]

The proviso 97 It is plain from the principles set out by Johnson J and what was said in the passages quoted from Solomon that, simply because a trial judge leaves to the jury a case or arguments not relied upon by the Crown, it does not follow that there has of necessity been a miscarriage of justice. Nor is it such a defect in the trial that rule 4 cannot apply. Counsel might conceivably overlook a misstatement of the law or some erroneous recital of fact made in a lengthy summing up. But if by putting an argument or a case to the jury that was not put by the Crown some real unfairness has arisen to the accused, it is difficult to imagine that defence counsel would not object. In both Solomon and Robinson complaint was made at the trial. 98 Here defence counsel never raised any objection about this part of the summing up notwithstanding that he asked the Judge to tell the jury that they could not convict without accepting at least in part the evidence of Wigney. As the Crown Prosecutor at the hearing of this appeal submitted, it is difficult for counsel for the appellant now to assert that the summing up deprived the appellant of a fair trial when defence counsel made no such complaint. Nowhere did defence counsel assert that in some way the appellant had been prejudiced by the Judge putting to the jury that the Crown was contending that they could convict the appellant even if they rejected the evidence of Wigney. Yet he had made a submission to the jury to the contrary and asked the Judge for a direction to the contrary. In those circumstances it is difficult to understand how defence counsel could have let the situation go without any complaint that this was not the Crown's case or that he had been deprived of the opportunity to meet that case if he truly believed that in some way the appellant was being prejudiced by the manner in which the Crown case was being left to the jury. 99 The Crown before this Court submitted that there was a tactical advantage in defence counsel not asking the Judge to specify those facts that the jury could rely upon in the absence of the evidence of Wigney because it suited him to run the case on the basis of the evidence of Wigney, bearing in mind the warning that the Judge was required to give under s 165, rather than to meet a case arising from the circumstances and facts other than those arising from Wigney's evidence. 100 One of the difficulties in the present case was that on the evidence of Wigney there were only two rounds obtained with the weapon. One round was discharged in the appellant's unit and the other in the incident the week earlier about which the jury knew only that the round had been discharged in the street. Wigney's evidence was that he obtained the other rounds from an offence that he committed and in respect of which the appellant was not involved. Therefore, it was the appellant's case in cross-examination of Wigney that he believed that the rounds in Wigney's possession had been used. There was some issue about when Wigney obtained the other rounds. 101 In any event, if the evidence of Wigney were disregarded, the only evidence before the jury was that the appellant was involved in the robbery and knew that Wigney had the weapon that was in evidence at the trial. There was, however, no evidence as to what the appellant knew about that weapon, for example whether it was capable of discharging a live cartridge. There was certainly no evidence that the appellant knew that there was ammunition in the weapon or even available for the weapon. Without the evidence of the appellant's knowledge of the weapon given by Wigney, it was impossible, in my view, for the jury to conclude beyond reasonable doubt that the appellant contemplated that it might be discharged. 102 It follows that, in my opinion, it was not open to the jury to convict the appellant in the absence of Wigney's evidence and, as I have indicated, the Crown never submitted to the jury that it could. The Judge was in error in rejecting defence counsel's submission requesting such a direction and further in error in directing the jury to the contrary. 103 But in my opinion these errors are not so fundamental that the proviso could not be applied. This is so even accepting that the proviso might not be applicable where there has been "a significant denial of procedural fairness": Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [45]. So, if this Court itself concluded from an examination of the whole of the record of the trial, that the appellant was guilty of the offence of murder there would be no miscarriage of justice occasioned by the error of the trial judge: Weiss at [41]. The Court is to take into account both the "natural limitations" that attend such an examination and the fact that the jury did convict the appellant. The purpose of the proviso is "to avoid the needless retrial of criminal proceedings": Weiss at [47]. 104 I am prepared to approach this matter on the basis that any conviction founded upon the evidence excluding that of Wigney would be unsupportable. I cannot accept, and I do not believe the jury would have accepted, the prosecutor's submission that the appellant would have known that the weapon was loaded because he would have understood that a loaded firearm was necessary to carry out an offence of this nature, whether it be classed as a professional armed robbery or not. As I have already indicated, without some at least of the evidence of Wigney the Crown could not prove that the appellant knew that the weapon was even capable of discharging: it could have been a replica. 105 I would be prepared to accept in full the evidence of Wigney notwithstanding the caution with which his evidence was to be approached. Clearly he was himself a criminal who had committed at least two armed robberies to the jury's knowledge. There is no suggestion that he did not know the firearm was loaded at the time of the robbery and he cocked it in order to discharge it when finding himself in difficulties. Generally, therefore, he was not a witness of credit. Further, he had a reason to fabricate evidence to assist the police in order to secure a discount of his sentences. 106 But otherwise his evidence appeared to me to be credible and on the transcript at least he was a convincing witness. Apart from the reward of a discount in sentence there was no reason for him to fabricate his evidence and a large part of it was not in dispute. His disputed evidence that the appellant had a knife was supported by accounts of the witnesses at the robbery who gave evidence that the appellant appeared to be armed and made threats to the witnesses of death. In light of the fact that he admitted to taking the weapon, cocking it and firing it, this was hardly a case of him playing down his part in the offence at the expense of the appellant. The appellant gave no account to be placed along side that of Wigney and that might have raised a reasonable doubt about Wigney's account. 107 There were minor variances between the account in the witness box and what Wigney had said on other occasions, but they did not to my mind indicate that he was not what he appeared to be so far as his credibility was concerned, a person prepared honestly to give evidence about the involvement of a co-offender in his offence notwithstanding that it was for reward. It was significant to my mind that he had volunteered his participation in the robbery and the killing to police when he was in custody for another offence. The fact that he did not then reveal the identity of the appellant as his co-offender does not seem to me to be of significance in light of the fact that the information he gave them as to a co-offender named Garry was generally consistent with his later account of the involvement of the appellant. There was no dispute as to the presence of the appellant at the robbery or his role generally but only those matters that implicated the appellant as having knowledge that the weapon was loaded. It is not apparent from his evidence that he was down playing any of his criminal activity that he was asked about. 108 Although I would be satisfied beyond reasonable doubt on the evidence of Wigney that the appellant loaded the weapon before the robbery, I am prepared to put aside those parts of his evidence that were in dispute. If that is so, the appellant knew a relatively short time before the robbery that Wigney had a weapon that was capable of discharging a round because of the accidental discharge of the weapon at the flat. He took part in an armed robbery on commercial premises knowing that Wigney had that weapon but not knowing whether or not he had any ammunition for it on that evening. In those circumstances I am satisfied beyond reasonable doubt that the appellant must have contemplated that the weapon might be loaded and, therefore, might have been discharged during the course of the robbery. 109 I would dismiss the appeal against conviction.

[104]

The appellant later gave evidence that he had been consuming heroin seriously since 1985. He had at times experienced withdrawal symptoms that led him requiring heroin to the extent of committing crimes to obtain it. 114 On the basis of this evidence the submission is made that the legal representative for the appellant was incompetent in not seeking to obtain evidence of a psychologist as to the effects of illegal drug usage upon the appellant at the time of the shooting. There is no evidence before the Court from the appellant or the legal representatives acting for him at the time of sentence as to whether there was any discussion about obtaining such a report or why such a report was not obtained. The Court is merely asked to infer incompetence from the asserted fact that there could be no justification in not seeking to put expert evidence before the sentencing judge on the issue of the appellant's drug use and his consequential criminal responsibility for his actions. 115 On the face of it there was nothing remarkable in the evidence of the appellant given before the sentencing judge. In effect he was simply stating what any experienced judge would understand to be the consequences of the abuse of illegal drugs: that it clouds a person's judgment and moral resolve, if any, because of the overwhelming compulsion to obtain the drug. An understanding of the relationship between the abuse of illegal drugs and dishonesty offences is not a matter requiring expert evidence. The relevance of drug abuse as a factor in sentencing is well understood: see for example the discussion in R v Henry (1999) 46 NSWLR 346. Generally speaking, the fact that an offence was committed as a result of the need for illegal drugs is not a matter of mitigation but may in an appropriate case be relevant to the prospects of rehabilitation. In some cases it may be a circumstance of aggravation or indicate that there is a need to protect the community from an offender. 116 I accept that it is notable that a psychological report was not obtained in this case, but that is only because it seems, from my experience, that almost as a matter of routine a psychological report is placed before a sentencing court regardless of the offence or the personal circumstances of the offender. In many cases the only relevance of such a report is to place before the court material that should more appropriately have been the subject of evidence from the offender. This Court has warned about the uncritical use of such material where an offender has not given evidence. 117 In this case the offender gave evidence and was in a position to supply the court with any material as to his background and the history of his drug addiction as might have been relevant. There was also a report from a parole officer dealing with the same topics. True it is that a psychologist might have been able to explain the dynamics of the dependence of the appellant on illegal drugs but that was a matter of little significance particularly where, as here, the offender is of middle-age with a lengthy criminal history as a result of a long-standing drug addiction and who was being sentenced for very serious criminal offences. 118 In order to determine whether to receive the report of the psychologist the Court was invited to consider its contents. The psychologist stated that he was asked to give his opinion as to whether the offender suffered a "disability" for the purpose of s 23A(3)(j) and whether there were special circumstances to reduce the non-parole period. In my view it was not open to the psychologist to express his opinion on either of these matters: whether a particular condition amounts to a disability under s 23A is a question of mixed fact and law and whether there are special circumstances is an issue to be resolved by the sentencing judge. 119 In any event there is little in the report that addresses the question of whether, even if the appellant may be said to have suffered from a relevant disability, the disability resulted in any diminution of the appellant's awareness of the consequences of his actions. On the facts in this case and considering the appellant's participation in the offence, it is difficult to see how the appellant could not have been fully aware of his involvement in an armed robbery and the consequences of that conduct. The report refers only to matters of generality and there is no consideration of this specific issue. Material going to the issue of special circumstances was clearly before the Judge arising from the appellant's evidence and there was little in the report that would significantly have affected that decision. 120 The Judge acknowledged in his sentencing remarks that the appellant's criminal record was related to his drug addiction and, when sentencing for the offence of murder, referred specifically to the evidence given by the appellant as to the effect of his drug usage upon him. He also referred to the appellant's professed intentions of addressing his drug addiction but, in the light of his record and history of breaches of parole and other orders, his Honour expressed "guarded optimism" as to the appellant's rehabilitation. In my opinion there is nothing in the psychologist's report that could impact upon the findings made by the Judge or the sentence imposed. 121 I was of the opinion there was no basis upon which the Court should receive the report of the psychologist and, therefore, I joined in the order of the Court rejecting the evidence. 122 It is unnecessary in the light of the rejection of the report to determine whether there was a disability suffered by the appellant within the terms of s 21A(3)(j) because counsel did not seek to support the submission based only upon the evidence before the sentencing judge. But it should not be assumed that the effects of the ingestion of illegal drugs would necessarily give rise to a disability under the section, even if the evidence were that the drug had some permanent or temporary effect upon the offender's brain or mental processes. Nor does it in any way follow that, simply because the offender does fall within s 21A(3)(j), there must necessarily be a mitigation of the penalty for the offence. In some cases the effect of the voluntary use of an illegal drug upon the offender's appreciation of the consequences of his conduct may be an aggravating factor where the offender should have anticipated that effect.

[106]

Sentence manifestly excessive 125 Apart from seeking to rely upon fresh evidence and the submission about the failure to find special circumstances, there is no other complaint in respect of the sentence for the offence of murder. 126 It was submitted that the sentence imposed for the armed robbery was manifestly excessive having regard to the objective seriousness of the offence and the legitimate range of sentences for offences of that seriousness. 127 The appellant had been charged with both the armed robbery offence and the murder. This was notwithstanding that the offence contrary to s 97 of the Crimes Act was an included offence in the charge of murder. The jury would have been entitled to find the accused not guilty of murder but guilty of the s 97 offence on the indictment upon which the appellant was arraigned before them. It would have been open to the appellant to indicate that he was pleading guilty to the armed robbery and invite the jury to bring in a conviction for that offence while finding him not guilty of murder. 128 The Judge allowed the appellant a discount of 15 per cent for the utilitarian value of the plea of guilty to the armed robbery offence. I find it curious that the appellant should receive a discount for a plea of guilty to an offence that the Crown had to prove in asking the jury to find him guilty of the murder. A specified discount is not generally given on the basis that the appellant is willing to plead guilty to an offence in circumstances where he was convicted after trial of a more serious but related offence. There was never going to be a trial for the armed robbery offence independent of the trial for the offence of murder. The plea of guilty to the armed robbery offence therefore had no utilitarian effect as that concept is normally understood. Usually an offender would receive a discount for the less serious offence only if he were convicted of that offence in circumstances where he had indicated a willingness to plead guilty to that offence but the Crown had not accepted the plea. This has been the approach taken with the offence of manslaughter: see R v Oinonen [1999] NSWCCA 310 and R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510. 129 Here curiously the appellant also received a discount of the sentence for the offence of murder on the basis that he had indicated his preparedness to plead guilty to the armed robbery offence and hence facilitated the trial for murder. Once again I do not understand that a specific discount is given in a situation where an offender does not contest some aspect of the prosecution case or makes admissions that aid the prosecution. Generally this is a matter that goes to contrition only. However, there were no submissions made before this Court with respect to the quantum or the nature of the discounts and I am prepared to act upon them. 130 The problem with sentencing for the armed robbery offence in this case was that the appellant had been sentenced for the murder and there were common factual elements between the two offences. This was the situation that was considered in Pearce v The Queen [1998] HCA 57; 194 CLR 610. There the offender had been charged both with an offence of inflicting grievous bodily harm with intent to cause grievous bodily harm and with break and enter a dwelling house and inflicting grievous bodily harm. The victim of the two offences was the same and the grievous bodily harm referred to the same injuries in both charges. Unlike the present case, one of the two offences was not included in the other. Also unlike the present case, in order to punish the whole of the offender's criminal conduct it was necessary to charge more than one offence. 131 In Pearce, McHugh, Hayne and Callinan JJ stated:

[107]

[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 132 As I have already pointed out, in the present case there was a complete overlap between the armed robbery offence and the murder. The latter offence could only be proved by proof beyond reasonable doubt of the former. Sentencing for the crime of murder had to take into account that the killing occurred in the commission of the armed robbery offence. That was simply part of the circumstances in which the murder arose. The appellant's one act, participation in the armed robbery offence, gave rise to both charges: see Pearce at [42]. 133 Neither party during their submissions averted to Pearce or any difficulties to which the charging of both the murder and the armed robbery offence might give rise. It seems to me that the appropriate way now to consider the offence of armed robbery is to sentence for that offence not taking into account any aspect of the offence that resulted in the murder. Therefore, the appellant should be sentenced on the basis that he committed an armed robbery with a dangerous weapon and in company of Wigney but without taking into account that the weapon was loaded, or that the appellant knew that it might be loaded. Certainly the sentence cannot take into account that the weapon was discharged or that as a result the deceased was killed. There was one aspect of the robbery offence that was not relevant on the charge of murder: that as a result of the robbery the appellant stole over $4,000. 134 Taking into account that the sentence otherwise appropriate for the robbery was reduced by 15 per cent, the Judge must have started with a sentence of about 15 years. In coming to this conclusion the Judge took into account that the firearm was loaded. As I have indicated, this is not a fact that should have been taken into account on the armed robbery offence, as it was fundamental to the charge of murder. A "dangerous weapon" for the purpose of s 97(2) does not have to be loaded and to be guilty of that offence the offender did not have to form any view as to whether the firearm was capable of firing a live round. 135 The appropriate starting sentence in the circumstances of this particular case and taking into account the overlap with the murder was one of 10 years. A discount of 15 per cent results in a sentence of 8½ years. There are no special circumstances that would warrant reducing the non-parole period. 136 The orders I propose are as follows: