Warne v The King [2023] ACTCA 1

The sentences imposed on the appellant were made partially concurrent, resulting in a total sentence of two years and six months, commencement of which was backdated to take into account time already spent in custody. His Honour fixed a nonparole period of 15 months.

The appellant appeals against his conviction and, if the conviction stands, against his sentence. His grounds of appeal are as follows: a. The verdicts are unreasonable (Ground 1). b. His Honour erred by failing to direct the jury that it must accept Ms Walker’s evidence identifying the accused beyond reasonable doubt before it could convict the accused (Ground 2). c. The appellant suffers a justifiable sense of grievance when comparing his sentence with the sentence imposed on his co-offender Damien Andy (Ground 3). d. His Honour erred by failing to have regard to the matters listed in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) when refusing to impose an incentive corrections order (Ground 4). The conviction appeal

The only live issue in the trial of the appellant was whether the Crown had established that he was one of the men who carried out the invasion of Ms Walker’s home described above. Before describing the evidence going to that issue, it is useful to note some aspects of the background to these events which appear to be uncontroversial.

Ms Walker met the appellant via a dating app in mid-2020, and they had a casual but intimate relationship for approximately three weeks. Ms Walker ended the relationship. The appellant then began a relationship with Ms Walker’s former partner, Ms Carey, who lived less than a kilometre away from Ms Walker. Ms Walker, meanwhile, resumed a relationship with Jamison Lennie (a pseudonym), the father of her younger daughter.

Ms Walker remained in contact with the appellant but tensions escalated between her and Mr Lennie, on the one hand, and the appellant and Ms Carey on the other. In the week or so leading up to 3 September 2020 there were some fairly heated exchanges between Ms Walker and the appellant on Facebook Messenger, towards the end of which he said three things which could readily be construed as threatening: “You started this, I’ll end it, Watch out cunt”; “You’ve crossed a line and now you’re chuck steak”; and “watch your back Chuck”. The night before the offences were committed, Mr Lennie drove to Ms Carey’s house to confront her and the appellant about what he regarded as harassment. He told them to stay away from his family. Threats were exchanged.

The evidence relied on by the Crown to identify the appellant as one of the men involved in the offences came from Ms Walker and Mr Andy. Two people who had seen the offenders leaving Ms Walker’s house were interviewed by police and did not pick out the appellant’s face from photo boards shown to them.

In two respects, Ms Walker’s evidence was arguably undermined by other evidence in the trial. CCTV footage from a nearby shop was tendered, showing the appellant a few minutes after the offending had taken place. In that footage he was wearing tan work boots, not black shoes. He also had some facial hair, although whether it is correctly described as a beard is a topic on which minds might differ.

The prosecutor then addressed on Ms Walker’s evidence. He submitted that she was an honest and impressive witness who had made appropriate concessions when they were called for. He reminded the jury of a photograph of the appellant’s face which was in evidence, suggesting that he did, as Ms Walker had said, have a distinctive asymmetrical face. (Due to rules arising from COVID-19 the appellant was wearing a mask during the trial, so that the jury could not see his face fully.) It was suggested that Ms Walker had reason to be familiar with the appellant’s appearance and would have good reason to focus on a person that she recognised. In relation to Ms Walker’s failure to recall that the appellant had a beard or facial hair, the prosecutor appealed to the jury’s life experience and suggested that it is not uncommon to fail to notice changes in the appearance of a loved one or friend such as a change of hairstyle or growing or shaving off some facial hair. He submitted that Ms Walker’s evidence that the appellant was wearing a hi-vis top was borne out by CCTV footage of him getting out of Mr Andy’s car outside Ms Carey’s house, a very short time after the offending.

On Mr Andy’s evidence, the prosecutor said the following. In terms of Mr Andy’s account as to what happened in the premises, the Crown says that a significant part of that was untruthful. He painted a picture of Mr Warne being the primary aggressor and minimised his involvement. That is in stark contrast to Ms [Walker]’s account which had Mr Andy as the primary aggressor. He was leading the charge, as it were. I would suggest that you would prefer Ms [Walker]’s evidence in that respect and accept that Mr Andy was the primary aggressor. He was clearly trying to minimise his involvement in that respect, no doubt because he appreciates what a terrible light his conduct paints him in. He also says that he does not know the identity of the fourth intruder. I would suggest to you that is not plausible. You might suspect, like the Crown does, that the fourth intruder was Ms [Carey] and Mr Andy is lying to protect her, given he considers her to be a sister-in-law and is very close to her. The main issue is what you make of his clear – that is Mr Andy’s clear and unwavering assertion that Alex Warne was present in [Ms Walker’s] premises … In considering that aspect of his evidence, I would suggest that you would have regard to the following Matters. Mr Andy was, I think you would accept, genuinely upset and angry about what had happened to what he described as his sister-in-law and his nieces and nephews the night before. As a result, he was angry with [Jamison Lennie] for having gone around there. I would suggest that you would accept that Mr Andy believed that the accused Warne had failed in what he perceived as Mr Warne’s obligation to protect his family. He thought that Mr Warne was ‘a bitch, a wimp and he didn’t stand up when he should have’. Mr Andy was clearly a tough, intimidating and scary bloke. You would accept, I would suggest, that Mr Warne would have felt extreme pressure and intimidation from Mr Andy to make amends, to prove himself, to ‘sort out his shit’, as Mr Andy puts it, and to be involved in the ensuing confrontation with Mr [Lennie]. I should be clear that whilst the Crown says that Mr Warne was involved, we do not say that he was the driving force behind what happened. We say that Mr Warne would have felt intimidated and coerced by Mr Andy, although at the end of the day the accused Warne made a conscious decision to involve himself in the ensuing home invasion.

He suggested that, if Mr Andy was lying in order to implicate the appellant, he would likely have painted the appellant as a more enthusiastic participant. He concluded in relation to Mr Andy: As I said earlier, it is not an all or nothing proposition when it comes to accepting the evidence of a witness. Whilst you would reject a lot of what Mr Andy said, I would suggest that you would accept his evidence that Mr Warne was a participant in the home invasion. Importantly, of course, his evidence in this respect is corroborated, supported and consistent with the evidence of Ms [Walker] and it is corroborated, consistent with and supported by the objective CCTV evidence from [a nearby address in Taylor]. What ultimately matters is how Mr Andy’s evidence sits in relation to the overall picture painted by the Crown case. The trial Judge’s direction

His Honour gave a detailed direction to the jury on the identification of the appellant, which warrants setting out in full. Now the issue of identification. There is an important direction I must give you concerning the evidence of Ms [Lynette Walker] in which she identified Mr Warne as one of the four people who went to her house. In giving you these directions, you should not think that I am giving you any indication of what I think about the reliability of the evidence. As I told you at the beginning of the trial, that is not my job. My task is to make sure that you consider everything that is relevant to the assessment of the reliability of the evidence. That assessment is your function, not mine. Judges have an experience with the law that members of the community generally do not have. Judges know that identification evidence may be unreliable and there is a variety of reasons why that is so. Evidence that Mr Warne was identified by a witness must be approached - that is by Ms [Walker] must be approached by you with special caution before you accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness. A witness may be honest but that does not necessarily mean the witness will give reliable evidence. Because the witness who gives identification honestly and sincerely believes his or her evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if you thought [Lynette Walker] was entirely honest in the evidence she gave, you must still approach the task of assessing the reliability of her evidence with special caution. Special caution is necessary before accepting identification evidence because of the possibility a witness may be mistaken in the identification of a person accused of the crime. The experience of the criminal courts over the years both here in Australia and overseas has demonstrated that identification evidence may turn out to be unreliable and there have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted. You must carefully consider the circumstances in which [Lynette Walker] made her observation of the man she says was Mr Warne. Some matters that might affect the reliability of her identification include that she had not seen Mr Warne for about three months before 3 September '20. Before that they had had an affair which had been brief, of about three weeks' duration. I should at this point just remind you that Mr Pappas incorrectly yesterday said it was three months, but in fact the period of their affair was about three weeks. Next, the man she said was Mr Wayne was in a highly agitated state, who had his eyes wide open, his face was flushed, his mouth was open, he was apparently screaming, and she had never seen Mr Wayne in such a state when she knew. From Ms [Walker]'s evidence it appears that she relied heavily on what she described as an asymmetrically shaped face to identify the man she saw as Mr Wayne. But the agitation described must invariably, you might think, have affected the appearance of the shape of the invader's face. Next, Mr Andy was the first to enter, using the entry created by the broken glass – breaking the glass panel. The man recognised by Ms [Walker] as Mr Wayne entered the house behind Mr Andy and – I am sorry, I have been calling him Mr Wayne incorrectly. I am so sorry. Mr Warne. Mr Andy was the first to enter, using the – I am sorry, I said that. Although the man was described as – who entered first was Mr Andy, the man she recognised after him, Mr Wayne, entered after him and behind Mr Andy and her view of the men entering must have been a fleeting one before she took hold of her child and started to leave. And, of course, she saw more of the two men shortly after that. Although the man was described – the man she described as Mr Warne as taller than Mr Andy, it appears Mr Andy was waving around a baseball bat and that would have obstructed her view, or at least had the capacity to distract her view. Ms [Walker] herself was terrified and moved very quickly away from the intruders, instinctively devoting her attention to the safety of her children, and she was protesting loudly and at least at some stage or stages crying, so her ability to observe was hindered by her own reactions to the entrance of the intruders. At all or almost all material times it was Mr Andy who was closer to Ms [Walker] and in front of the man she identified as Mr Warne. Ms [Walker] had never known, when she knew him, Mr Warne, to have a beard and she said the man she identified as Mr Warne on 3 September did not have a beard. But other objective evidence clearly establishes Mr Warne had a beard on that day. The work boots Mr Warne is shown wearing at the 7 Eleven that day are not consistent with Ms [Walker]'s observation that the man she took as Mr Warne wore black shoes at the time of the invasion. And Ms [Walker]'s expectation as expressed in her text exchange with [Jamison Lennie] on the morning of 3 September ‘20 that her ex-lover [Elvina Carey] would arrange for people to run through her house and break all the windows, coupled with the knowledge that Mr Warne had taken up with Ms [Carey] and was now her partner, was a matter which you would take into account as so called expectation bias; something that you heard about yesterday. Now, you must give consideration to each of these matters. Any one of those circumstances may possibly lead to error. Now, in this case, as you understand, Ms [Walker] says she recognised Mr Warne as someone she knew. It is perhaps easier to understand the possibility of error when evidence of identification is given by someone who has not previously known an accused person. But errors may also occur even when a witness has previously known the accused, and mistakes have been known to be made by friends and even by relatives of a person who thought it was their friend or their relative who they had seen. This is something you should bear in mind. Just because a witness claims to have known the person, there remains a possibility of mistake. In this case more than one witness has identified the accused Mr Wayne as having been at the premises in Grenfell Street. Of course, the other was Mr Andy and, as Mr Pappas put to you, you might have a lot of trouble giving his evidence any credibility at all. But even two or more honest witnesses can be just as mistaken as one. Appeal ground 1

The first ground of appeal is that the verdicts against the appellant were unreasonable. The task of an appellate court, considering a contention to this effect, was described in the following way by the majority in M v The Queen (1994) 181 CLR 487 (M), 494–495: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above. (citations omitted)

This “carefully crafted” passage was referred to by the Court in Dansie v The Queen [2022] HCA 25; 96 ALJR 728 (Dansie), [9], where it was described as making two matters clear: first, that the court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witness”; and secondly, “how those considerations are to impact on the court’s independent assessment of the evidence”. Later, speaking of trials by judge alone, their Honours said (at [16]): But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

The advantage that a trial judge (or, correspondingly, a jury) might have over an appellate court will vary from case to case: Dansie at [17].

In the light of these passages, the role of the Court in dealing with this ground of appeal is not limited to considering whether there was evidence capable of satisfying a jury of the appellant’s guilt. The Court must conduct its own independent review of the evidence and consider whether it entertains a reasonable doubt as to his guilt. However, the Court will not act on its own view that there exists reasonable doubt if its disagreement with the jury can be explained by the jury having had the advantage of seeing and hearing the witnesses during the trial.

To put the point another way, success for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M, involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was put in M) the evidence as it appears from the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”.

In the present case, the evidence of Ms Walker identifying the appellant as one of the offenders was clear and unwavering. As it appears in the transcript, it was not internally inconsistent or implausible. We note the following points in this regard: (a) It was not suggested that Ms Walker was being untruthful. (b) Ms Walker’s initial view of the offenders was (she accepted) very brief and in a highly stressful situation. That is not necessarily inconsistent with her recognising two people whom she already knew (Mr Andy and the appellant). Nor was it her only opportunity to observe them: on her evidence and that of Mr Andy, the offenders followed her through the garage and out on to the driveway. The appellant’s face was, as she said, a distinctive one. (c) Ms Walker’s evidence was that during the offending she had recognised a person who she already knew; not that a person she observed during the offending was the person in the dock. That factor does not in itself remove the difficulties involved in relying on identification evidence (as illustrated by R v Blundell [2019] SASCFC 84; 278 A Crim R 531 (Blundell), where one of the identification witnesses recognised the offender as the son of a neighbour having seen him only for “a split second”); however, it does change the position somewhat. The face of a person seen for the first time is likely to be very hard to commit to memory and recognise later; whereas most people will take only a moment to recognise a friend or acquaintance. Against that, there is the possibility of expectation bias, which the trial Judge pointed out to the jury. (d) Although Ms Walker was no doubt under considerable stress during the short time that she saw the offenders, she was in a familiar place (her home), which was also the place where her previous meetings with the appellant had occurred. (e) Ms Walker’s recollection was contradicted by the CCTV footage on one, and perhaps two, points. These did not in our view amount to discrepancies or inadequacies, or deprive her evidence of probative force. First, she did not recollect the appellant having any facial hair whereas, when he was recorded by CCTV a few minutes after the offending, he did have some. However, as the prosecutor put to the jury, experience suggests that it is common for somebody not to notice changes in the appearance of a person they know. Failure to notice the appellant’s facial hair (when she did note M C-N’s short beard) could mean that Ms Walker did not actually see him on that day; or it could mean that she instantly recognised a familiar face. It was neutral. Secondly, Ms Walker recalled the appellant wearing black shoes or “dark-coloured shoes”. A few minutes later he was filmed wearing tan work boots. That may mean that she did not observe what the offender was wearing closely; however, it is not necessarily inconsistent with her having correctly recognised him as the appellant. (f) Ms Walker’s evidence was not fatally undermined by two other witnesses, who saw the offenders leave her house and climb into Mr Andy’s car, failing to pick out the appellant’s photograph from among other male faces, several of which were also asymmetrical.

Ms Walker’s evidence fell to be considered in the light of other evidence in the case.

The jury was rightly invited to treat Mr Andy’s evidence with considerable scepticism. On several points, he was exposed as telling outright lies; however, it did not follow that everything he said was a lie. It was not suggested in relation to Mr Andy’s evidence that the well was poisoned beyond redemption, so that any evidence corroborating anything he said must also be dismissed (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165, [49] (McHugh and Gummow JJ)). His evidence that the appellant went with him to Ms Walker’s house and participated in the offending was not contradicted by other evidence or exposed as problematic so far as it went.

As noted earlier, there had been significant tension between Ms Walker and Mr Lennie on the one hand, and the appellant and Ms Carey on the other, in the weeks leading to the offending. Ms Walker was aware of the confrontation between Mr Lennie and the appellant and Ms Carey the night before. That awareness could have led to expectation bias on her part, which was a reason to treat her evidence with caution. However, these matters can also be viewed as circumstantial evidence making it somewhat more likely that it was indeed the appellant who participated in the offending. Thus, it was not inapt for the prosecutor to describe the case as partly circumstantial.

Despite these potential sources of support, the evidence of Ms Walker was clearly central to the question of identification. The jury was given a careful and detailed direction explaining why it should consider that evidence very carefully before accepting it. It is appropriate to proceed on the basis that the jurors took that direction to heart (see Gilbert v The Queen [2000] HCA 15; 201 CLR 414, [13] (Gleeson CJ and Gummow J), [31] (McHugh J). In the light of that direction and the relative paucity of other evidence, we think that each juror’s agreement to the verdict of guilty can be explained in only two ways. One is that they had a very strong conviction that Ms Walker’s evidence was both truthful and reliable. The other is that they were persuaded by the combination of Ms Walker’s evidence and that of Mr Andy; that is, the likelihood that Mr Andy was telling the truth on this particular issue (despite probably being untruthful on other issues), combined with the likelihood of Ms Walker being reliable on the issue, was sufficient to be satisfied beyond reasonable doubt. (Of course, the jurors did not all have to arrive at their verdict by the same reasoning; however, they did all need to be satisfied beyond reasonable doubt that the appellant was one of the offenders.) On either explanation, an assessment of the witnesses’ oral evidence is highly likely to have been critical.

For these reasons, to the extent that we might entertain a doubt about the appellant having been one of the offenders, the fact that the jury did not have such a doubt is highly likely to be explained by the advantage that the jurors had in seeing the witnesses give their evidence in the context of the trial as it unfolded. The first ground must therefore be rejected.

We do not understand their Honours to be suggesting that evidence of identification, unlike any other kind of evidence, is necessarily incapable of being supported by corroboration. Their Honours’ observation, particularly in its reference to “unsatisfactory” identifications, needs to be read in the context of the issues in the case.

The identification evidence in Burchielli was as follows. (a) A pharmacist whose business was the target of an attempted armed robbery was, three weeks later, asked by a detective to go out to a car parked outside the pharmacy (which was an unmarked police car) and look at the persons in the back seat. Upon observing one of those persons she “knew” it was the offender. She gave evidence in the trial that the applicant (who was in the dock) was the offender. (b) Two men who had chased the offender after the attempted robbery were shown 12 photographs later the same day, and each indicated one of them as being similar to the person they had seen. It was an agreed fact that the photograph both men indicated was a photograph of the applicant. (c) Also about three weeks after the attempted robbery, an identification parade was conducted at a police station. Eight witnesses to the events attended the parade. Four identified the applicant as the offender (these included one of the men previously shown the photographs, who said he was not 100 per cent sure). The other four (including the other man previously shown the photographs) were not able to identify anyone.

Thus, in Burchielli all of the witnesses, having seen a person for the first time during or shortly after an attempted robbery, were being asked at a later time to say whether the applicant was that person. Further, each witness participated in identification processes in circumstances that required the resulting identification to be treated with considerable scepticism. The pharmacist’s evidence in the trial clearly had the potential to have been influenced by having earlier seen the applicant in circumstances where attention was drawn to him, by a police officer, in connection with the investigation of the offending. The other identifications were obtained in procedures of a kind in which it is recognised that some witnesses are inclined to assume that one of the faces they see must be that of the offender.

After making the observation set out above, Young CJ and McInerney J discussed problems of identification evidence generally, and said (at 617): Experience has shown that mistakes can occur where two or more witnesses have made positive identifications. We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.

The first sentence of this extract adverts to cases where more than one witness gives identification evidence. However, their Honours’ proposed direction does not go to any particular issue concerning the cumulative effect of multiple witnesses; rather, it counsels care in the treatment of all identification evidence.

We do not read Burchielli as authority for any blanket proposition that multiple sources of identification evidence cannot support each other and juries must be directed accordingly. Provided the identifications agree with and are independent of each other (an issue we consider below) and the witnesses are honest, it seems to us that it must be at least possible for each identification to make the others more likely to be correct. The point, in our view, is that the presentation of several identifications which concur with each other must not be allowed to distract from the infirmities that one or all of them are likely to have. Attention needs to be paid to each witness’s credibility and the circumstances in which they made the identification of the accused.

Burchielli was cited by Peek J, writing for the South Australian Court of Criminal Appeal, in Blundell. There, an assault had occurred late at night and the only live issue was whether the appellant was the perpetrator. The victim described the incident as a blur and had selected a photograph of another person in an identification procedure. A neighbour, Ms Castellari, did not see the assault but gave evidence that her sensor light had come on and she had seen the appellant (whom she knew as the son of another neighbour) look up for a split second as he walked towards his mother’s unit. The victim’s partner, Ms Williams, gave evidence that she came out of her unit during the assault and saw the perpetrator’s face from a metre away. During her 000 call to the police she described him as “a random guy”. Later, somebody told her that the appellant was the perpetrator. Later still, she and Ms Castellari both participated in photographic identification procedures and both selected the appellant’s photograph.

The trial judge in Blundell gave what was described as an “unfortunate” direction, that “one person being mistaken is one thing, two people being mistaken about the same person is another thing”. The appeal was allowed on the ground that the judge’s directions fell well short of what was required and failed to make clear several issues concerning Ms Williams’ evidence.

The cases and academic writings referred to by Peek J at [30]–[37] highlighted the following issues: (a) the unreliability of evidence of visual identification generally, requiring it always to be treated with care; (b) the possibility, therefore, that several identifying witnesses can each make the same mistake; (c) the danger that the jury may be induced to aggregate rather than analyse the evidence of identifying witnesses; and (d) the potential for multiple witnesses to identify the accused in an identity parade (or similar process) simply because they are the person who, among those presented, most resembles the actual offender.

His Honour then turned to the particular features of the evidence of Ms Williams (noting that the other identification witness, Ms Castellari, had identified the appellant only as somebody whom she saw around the time of the offence—not as the offender). The problems of Ms Williams’ evidence were clearly serious. There are shortcomings in any identity parade or photographic identification procedure, summed up by his Honour at [41]. Next, there was what his Honour termed the “displacement effect”, where a witness’s memory of a person’s features may be altered by later experiences (at [43]). Ms Williams had picked out the photograph of someone she had previously seen, having been told that he was the offender (at [45]). Actual memory of the offender’s face is liable to be further displaced in the witness’s memory by the experience of the identification procedure (at [46]).

The evidence in the present case did not have these features. Neither Ms Walker nor Mr Andy was faced with the task of “identifying” an offender after the event, in the sense of comparing their memory of the offender’s appearance with the appearance of an accused person. Both of them knew the appellant before the offending occurred, having met him independently of each other. Theirs was evidence of recognition, rather than identification in the usual sense. (a) Mr Andy had only met the appellant a short time earlier, but knew who he was (the partner of Ms Carey, whom he regarded as a sister-in-law). Mr Andy drove the other offenders—including, on his account, the appellant—to Ms Walker’s residence in order to commit the offences and drove them back to Ms Carey’s house afterwards. There was no real chance of him being mistaken; the only question was whether he was truthful. (b) Ms Walker knew the appellant from having had a short intimate relationship with him over some three weeks, and mostly in her own home, about three months earlier, and it was she who ended the relationship. She recognised one of the offenders, whom she saw entering her house, as the appellant.

This was not, therefore, a case where the aggregation of identification evidence presented a special danger, or even any real danger at all. The trial Judge gave an appropriate general warning about identification evidence; he described in detail the reasons to be careful in accepting Ms Walker’s evidence; he reminded the jury that Mr Andy’s credibility was doubtful, and he finished by saying “even two or more honest witnesses can be just as mistaken as one”. Subject to the issue of independence, to which we turn next, this was sufficient.

The principal reason advanced in oral submissions by the appellant as to why the jury should have been directed not to regard Mr Andy’s evidence as capable of supporting that of Ms Walker was that his evidence was not a truly independent identification. This was because Mr Andy had pleaded guilty and agreed to assist the prosecution by giving evidence, with an expectation of a more lenient sentence, and (it was said) had seen the Crown brief of evidence, so that he knew the nature of the case he was expected to support.

It was put to Mr Andy in cross-examination that he had read the Crown’s brief of evidence and this lay behind some of his answers. Over several pages of transcript he denied that proposition, said that his partner had read the material but not discussed it with him, and eventually answered “I glanced through it. I’m not the best reader in the world”. The suggestion that Mr Andy’s evidence was tainted was thus raised in the trial. It was followed up in some detail in the closing submissions of counsel who appeared for the appellant. Counsel pointed out to the jury various aspects of Mr Andy’s evidence that might be thought hard to explain otherwise than by him having seen the Crown’s material.

This was put to the jury as one of several reasons for regarding Mr Andy as a thoroughly unreliable witness. It was not put to the trial Judge as a reason why a particular direction should be given.

Mr Andy’s participation in the offending was uncontested, as was the fact that he had driven his co-offenders to and from Ms Walker’s house. As we have noted above, there was little scope for doubt that he knew whether the appellant was one of them. If the identification evidence that he gave was affected by knowledge of the Crown brief of evidence, and the case that the prosecution wanted him to support, that was almost certainly not a function of suggestibility or faulty memory on his part; it was a deliberate decision to give a particular account of what had taken place. The question whether he had been influenced in that way was thus an aspect of the broader issue whether he was telling the truth, which of course was properly a matter for the jury (and was thoroughly ventilated before them). It was not something that, as a matter of law, required the trial judge to direct the jury to discount Mr Andy’s evidence on the question of identification.

For these reasons we reject ground 2.

As to the roles of the appellant and Mr Andy in the offending, however, Mr Andy was sentenced by a different judge and on different facts. The first of these points is important because it is widely recognised that there is no single correct sentence in a particular case: discretion is involved, and individual judges will inevitably vary in their perceptions of the various factors that must be taken into account. (This is why it is often said to be desirable for co-offenders to be sentenced by the same judge: eg. Lowe v The Queen (1984) 154 CLR 606 (Lowe), 617 (Brennan J).) The second point is important because the instinctive synthesis in each case can only be based on the material that is before the Court (which is why it is also said to be desirable for co-offenders to be sentenced at the same time: Lowe, 617).

Whereas the primary Judge in the present case had heard the evidence in the trial and formed an impression of Mr Andy’s character and role, Murrell CJ necessarily proceeded on the basis of the agreed statement of facts prepared for the purposes of Mr Andy’s guilty plea (cf PG v The Queen [2017] NSWCCA 179; 268 A Crim R 61 (PG), [24], [48] (Basten JA, Button and N Adams JJ agreeing at [70])). That statement was not before the primary Judge or part of the material before us; however, his Honour did observe that the description of Mr Andy’s role before Murrell CJ “seemed somewhat at odds with his role in evidence at the trial”. The following points emerge from her Honour’s summary of the facts ([2022] ACTSC 54 at [5]–[20]): (a) Mr Andy did not have a weapon; (b) in the lead-up to the offence there was hostility between Ms Walker and the appellant; (c) after threats were shouted and a “stick” thrown at Ms Walker, Mr Andy stayed outside the back of the house while his co-offenders, re-entered and proceeded to smash property; (d) Mr Andy was “integrally involved in the offence” (having been the driver, provided some of the implements and entered the house with the others), but was not described as an “instigator”.

In PG Basten JA, with the other members of the Court agreeing, said at [23]: It is by no means uncommon that, where pleas are negotiated and the basis of the plea is agreed, A will be sentenced on the basis that B was the principal and A played a lesser role, whereas B will be sentenced on the basis that A was the principal and it was B who played the lesser role. Usually, there will be no mechanism by which a sentencing judge can resolve such contradictory propositions. Nor is it open to this Court to do so. Accordingly, two co-offenders may be sentenced on entirely different bases. It is not open to A (having been sentenced first) to say, “I was sentenced on the basis that B was the principal, but B got the same sentence that I did and therefore my sentence must be reduced.”

In the present case, Murrell CJ did not find in terms that the appellant was the principal offender. However, it does appear that the agreed facts on which her Honour proceeded painted a different picture of Mr Andy’s involvement (and accordingly of his and the appellant’s relative levels of culpability) from the findings of the primary Judge in the present case. In so far as the ground 3 depends on the roles played by him and Mr Andy, therefore, the appellant’s complaint mirrors that which Basten JA described as “not open” in PG. Mr Andy, having pleaded guilty and had a chance to negotiate agreed facts with the prosecution, was sentenced on the basis that he was not the principal offender. The appellant, having gone to trial, was sentenced on the basis of evidence which showed Mr Andy to have been the instigator of the offending. The appellant cannot use the sentence imposed on Mr Andy (which appears lenient compared to his role as found at the trial) as a benchmark in order to argue that, having played a lesser role, he must receive a lesser sentence. To accede to such an argument would disconnect the sentencing of the appellant from the normal application of sentencing principles and be apt to produce a sentence that was not proportionate to the seriousness of the offending (cf R v Pan [2005] NSWCCA 114, [35] (Johnson J, Giles JA and Hoeben J agreeing)).

The other issues noted at [68] above might also be thought to point towards a lesser sentence for the present appellant than that imposed on Mr Andy. In sentencing Mr Andy, Murrell CJ regarded his prospects of rehabilitation as “guarded” in the light of factors including his criminal history, which was extensive (at [47]). The present appellant has a criminal history, but it is fairly limited and he had not come before the courts since 2011. The primary Judge regarded his prospects of rehabilitation as “reasonably good”. Also, in sentencing Mr Andy, Murrell CJ regarded it as an aggravating factor that, at the time of the offending, he was subject to a community correction order imposed by the Queanbeyan Local Court and thus on conditional liberty (at [28]). No such factor was present in the appellant’s case.

If the two offenders’ circumstances and involvement in the offending were otherwise the same, the appellant might justifiably feel aggrieved at receiving effectively the same sentence as Mr Andy in the light of these differences. However, they were not the same. While both men had faced significant disadvantage, their life histories were different and could properly affect a sentencing judge differently. More importantly, the different factual bases on which they were convicted makes speculation about the potential impact of other factors somewhat unrealistic. Apart from having had different understandings of their respective roles in the offending, Murrell CJ proceeded on agreed facts about what had occurred, whereas the primary Judge had heard several days of evidence about the events, which very likely influenced his Honour’s view of the overall objective seriousness of the offending. Mr Andy had also pleaded guilty.

Sentencing cannot be reduced to a mathematical exercise. With a range of objective and subjective factors in play, before different judges acting on different evidence, it cannot be said that there was a “marked” or “unjustified” discrepancy in their treatment (cf, eg, Fenech v R [2018] NSWCCA 160 at [29]–[30]).

Ground 3 is therefore rejected.

Ground 4 must therefore be rejected.