The Queen v Renton[1997] QCA 441

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 188 of 1997

Brisbane

[R. v. Renton]

THE QUEEN

v.

MARC ANDRE RENTON

(Applicant) Appellant

Macrossan CJ

Williams J

Byrne J

Judgment delivered 12 December 1997

Separate reasons for judgment for each member of the Court, all concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 12 December 1997

The reasons prepared by Williams J refer to relevant factual matters and the issues arising on the appeal.  I agree with the conclusions expressed by the Judge and with the reasons he gives.  I shall add some further observations.

As Williams J points out and as the trial Judge instructed the jury, the Crown case on all charges was a circumstantial one and did not depend upon identification evidence strictly so called since no witness purported to identify the appellant.  However, the evidence which witnesses variously expressed,  indicating a physical similarity between an observed offender and the appellant was not an unimportant part of the Crown’s circumstantial case.   The trial Judge in the circumstances gave a full direction of the kind usually given when proof of guilt depends upon identification but in those directions he maintained an emphasis upon the fact that the evidence of physical similarities stopped short of amounting to a claim of definite identification.   No redirection was asked for upon the way in which the Judge dealt with these issues.  Taking the summing-up as a whole the criticisms raised by counsel for the appellant should not be accepted.  Nor should it be accepted on what has been said so far that any material error affected the trial or that some miscarriage of justice occurred.

An attack was also made upon the jury’s verdicts upon the basis that those returned on counts number one and two were inconsistent. 

Count one involving the Morningside bank robbery produced a verdict of not guilty yet the jury found the appellant guilty of unlawfully using a motor vehicle with a circumstance of aggravation, namely that the vehicle had, on the Crown case, been used for facilitating the commission of that robbery.  Because of the undoubted significance of the fact that the appellant’s fingerprint had been found upon the vehicle used, no opposition was offered by counsel for the appellant to the proposition that a verdict of guilty on count number two was undoubtedly open if regarded without the circumstance of aggravation.  However, the possibility of bringing in a verdict in that reduced form was not left to the jury by the trial Judge.  It should also be said that although the fingerprint indicated an unauthorised use of the vehicle by the appellant at some time or other, no case against the appellant based upon s. 7 of the Criminal Code had been put to the jury.  The Crown case as led and as dealt with in the summing-up clearly was that the appellant was guilty on count two because he used the vehicle in question for the purpose of carrying out the Morningside bank robbery.  Even though it might have been expected that the jury would bring in unvaried verdicts on counts one and two, they cannot be regarded as compelled to do so.

In the case of the Morningside robbery the Judge not only refrained from putting a s. 7 case to the jury but he specifically told them that evidence of association between the appellant and the robbers on that occasion was not enough to justify a conviction.   A further feature was that a description given of the Morningside robber did not fit the appellant.  Then there was the remark made by the robber that he had been “watching” the bank for a length of time that would not have been possible in the case of the appellant.  While the jury may not have felt obliged to act on the basis that this was a correct assertion by the robber but was perhaps something said to increase pressure upon the bank employees, they may nevertheless have been disposed to attribute some significance to it.

When all of the evidence in the case is considered it should be concluded that there was undoubtedly a sufficient basis upon which a reasonable jury could have convicted the appellant on all counts including count one. 

There was strong evidence of an interconnection between all three robberies, the associated cases of unlawful use and the robbers, and ultimately with the appellant.   An earpiece was located at the residential unit rented by the appellant and it fitted a scanner left behind at the scene of one of the robberies, a DNA analysis of the balaclava found in one of the vehicles provided indications pointing to the appellant as well as other persons, disguises, a sledge hammer, ammunition consistent with a firearm of the type used.  Large amounts of cash were also all found at the residential unit even though the appellant had only recently been released from custody and would not have been expected to be lawfully in possession of substantial amounts of money. 

Amongst the similarities in features appertaining to all three robberies were these: all were committed just after bank closing time, entry was gained by smashing the bank doors, in two cases with a sledgehammer and once by driving a vehicle through them, a demand was made referring to the banks’ “reserve” bag, similar vehicle types were used on most of the occasions and entry was gained to those vehicles in similar fashion by breaking door locks on the front passenger sides in a way which restricted the amount of obvious damage. It was not suggested that this circumstantial evidence, pointing strongly to the identity of the offenders involved on the separate occasions, was not admissible to prove this interconnection.  The Judge summed up on the basis that the similar fact circumstantial evidence was admissible on all of the charges and there was no objection to this at the trial.  There was a strong case that each of the vehicles involved had been taken from lawful possession for the purpose of facilitating one or other bank robbery within a series of related offences. 

An ample basis was there for the jury to convict on count number one had they been so minded, but there were indeed circumstances, slight though they were, which might have induced them to refrain from bringing in a verdict of guilty.  These circumstances, the inconsistency in the description of the robber and the remark about “watching” the bank,  have already been mentioned.  However, it would be speculative to conclude that these particular features must have influenced the jury.  The fact that the jury gave the appellant the benefit of a not guilty verdict on count number one, even though there was ample evidence to support a guilty verdict,  does not impugn the guilty verdict on count number two.  That verdict was also sustained by a strong array of circumstantial matters and there was an understandable consistency between it and the verdicts on all of the remaining counts.  The principles stated in Mackenzie v. The Queen (1996) 71 A.L.J.R. 91 indicate the limited extent to which an attack based on alleged factual  inconsistency of verdicts can be entitled to succeed.    It is for the appeal court to decide whether the alleged factually inconsistent guilty verdict should be regarded as unsafe or unsatisfactory.  The strength of the case on count two against the appellant who did not give evidence at the trial is one reason why this court should not interfere with the verdict even though it might have been expected that the jury would find in a uniform way on counts one and two and, for that matter, on those counts and the remaining counts as well.   This was not a case where there was a formal or legal inconsistency in the sense explained by Gaudron, Gummow and Kirby JJ in Mackenzie v. The Queen (supra) at 100 2nd col since guilt on count one had to be established by the commission by the appellant of the robbery and guilt on count two, required by contrast proof of use of a motor vehicle for a purpose.

It may be pointed out that if the jury should be regarded as having been compelled to find a guilty verdict on count two reduced to unlawful use without a circumstance of aggravation, no effect upon the effective sentence overall could realistically be urged.

I agree with what Williams J says about the application for leave to appeal against sentence and have nothing to add in that respect.

The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 12 December 1997

After a trial in the District Court at Southport the appellant was convicted of two counts of armed robbery, six counts of unlawful use of a motor vehicle with a circumstance of aggravation, and one count of attempted unlawful use of a motor vehicle; he was found not guilty of a further count of armed robbery.  He appeals against conviction on a number of grounds, and seeks leave to appeal against sentence.

Most of the charges involved three separate incidents:

1. The armed robbery on 8 May 1996 of the National Australia Bank at Morningside;
2. The armed robbery on 27 May 1996 of the National Australia Bank at Biggera Waters;
3. The armed robbery on 13 June 1996 of the National Australia Bank at Paradise Point.

With respect to the bank at Morningside there was a charge of armed robbery and one charge of unlawful use of a motor vehicle with a circumstance of aggravation.  It was that charge of armed robbery on which the jury returned a verdict of not guilty.  With respect to the bank at Biggera Waters there was one count of armed robbery, and two counts of unlawful use of a motor vehicle with a circumstance of aggravation.  With respect to each of those three counts Brunetta Festa was a co-accused.  With respect to the bank at Paradise Point; there was one count of armed robbery and three counts of unlawful use of a motor vehicle with a circumstance of aggravation.  Again Festa was a co-accused.  The final count of attempted unlawful use of a motor vehicle was alleged to have occurred at the Gold Coast on 4 June 1996; Festa was again a co-accused.

The first ground stated in the notice of appeal is that the learned trial judge erred in refusing to separate the two counts relating to the Morningside bank from the balance of the counts on the indictment.  That ground was abandoned by counsel for the appellant on the basis that it was not arguable.

The second ground taken in the notice of appeal was that the learned trial judge erred in refusing to order separate trials.  At the outset of the trial there was an application by Festa for a separate trial, which was refused; there was no specific application on behalf of the appellant for a separate trial.  On the hearing of the appeal counsel for the appellant stated that he had been informed by trial counsel, who was a very experienced criminal advocate, that a tactical decision had been made not to apply for separate trials because "he saw certain advantages in there not being a separate trial".  Subject to what is said below in relation to grounds 3 and 5, there is no basis on which this court could conclude that there was an error made by the learned trial judge in making his ruling and nothing about the conduct of the joint trials which indicates that the appellant was unfairly prejudiced by the procedure.

Ground 5 alleges that the conduct of the co-accused Festa (and her de facto husband) throughout the trial severely prejudiced the appellant's right to a fair trial.

The jury retired to consider its verdict on the sixteenth day of trial; the verdicts were returned the following day.  When the court adjourned on the afternoon of the eleventh day of trial the prosecution case had substantially concluded.  The accused Festa did not appear when the trial resumed on the twelfth day.  After hearing argument the learned trial judge ruled that the trial against both the appellant and Festa should continue in the absence of the latter.  There was no address to the jury on behalf of Festa, and the jury returned verdicts of guilty on all counts involving her.

On day 10 of the trial the jury drew the trial judge's attention to the fact that a male person sitting in the back of the court was conferring with a person sitting alongside and pointing at individual jurors.  The jury apparently felt threatened by the conduct.  That led to the learned trial judge ordering that the male person in question be excluded from the courtroom.  It appears that the male in question was the de facto husband of Festa, but it is not clear that the jury were aware of that.  On the next day, day 11, the Crown prosecutor drew to the attention of the learned trial judge the fact that the same male person was taking photographs of Crown witnesses entering or leaving the court building.  The record would seem to indicate that the jury were not aware of that.  It emerged after Festa absconded that the male in question had provided surety with respect to her bail.

Subject to the matters which will be subsequently discussed in relation to issues of identification there is nothing to suggest that the appellant was deprived of a fair trial as a result of any conduct on the part of Festa (or her associates) or as a result of there being a joint trial.  Indeed, the verdict of not guilty on the count with respect to the Morningside Bank would suggest that the jury did have regard to the evidence against each accused with respect to each separate incident.

Ground 4 of the notice of appeal asserted that "the jury's verdicts on counts 1 and 2 are unsafe and unsatisfactory"; in essence the contention was that the verdict of not guilty of the armed robbery of the Morningside Bank was inconsistent with the guilty verdict on the charge of unlawful use of a motor vehicle with a circumstance of aggravation.  There is no doubt that the relevant circumstance of aggravation was the commission of an indictable offence, namely the robbery of the Morningside bank.  The argument for the appellant was that the jury, having found him not guilty of the armed robbery, should have found him not guilty of the associated charge; it was conceded that a verdict of unlawful use of a motor vehicle could have been returned but that was not specifically left to the jury.

A review of the evidence indicates, in my view, that there was a rational basis on which the jury could have returned the verdicts which they did with respect to the offences of 8 May 1996.

Evidence was led by the prosecution that the appellant's thumb print was found on a door handle of the car the subject of the unlawful use charge, and other evidence, if accepted, clearly established that the vehicle was used in connection with the robbery of the Morningside bank.

There was clear evidence, indeed it could be said to be undisputed, that there was an armed robbery of the Morningside bank on 8 May 1996.  A male person wearing black clothing, gloves, and a balaclava smashed a hole in the front doors of the bank with a sledge hammer at about 4.30pm.  That male person was also carrying a rifle.  JD Pye, an employee of the bank, gave evidence of statements made by the robber in the course of the incident.  Amongst other things the robber said:  "I've been watching this place for four weeks; where's the bag?"  And "I've been watching this place for weeks, if you're not telling me the truth I'll kill you."  Other evidence clearly established that the appellant had been in custody serving a sentence of imprisonment until released on home detention on 3 May 1996.  If the appellant was the robber he could not, at least truthfully, have said that he had been watching the bank for four weeks or even for weeks.

A witness saw the armed robber enter the bank and later come out and get into the motor vehicle which was the subject of the unlawful use charge.  He saw that person drive off.  Another witness saw a person seated in that car whilst it was parked near the bank, and subsequently saw a person leave that car wearing a black balaclava and go into the bank.  There was nothing which could be said to be evidence specifically identifying the appellant as the person seen by those witnesses.

It is clear from the summing up that it was put to the jury by trial counsel for the appellant that there may well have been more than one person involved in the Morningside offence.  In the light of that his Honour told the jury that "if you're satisfied Renton was involved in one or both of those two offences, the robbery or the unlawful use, satisfied beyond a reasonable doubt, then you would convict him, regardless of whether or not you think any other person may or may not have been involved."  Later in his summing up when dealing with the appellant's case he said in relation to the Morningside offences:

"As I understand it, it was conceded that the evidence suggests that he must have been associating, possibly was associating with persons who knew something about the robbery, may be the robbers themselves, but association is not itself sufficient.  The Crown case is deficient in that respect and although it may associate him with others involved in the robbery or some other person involved in the robbery but not in committing the robbery itself."

In the light of those matters which were left for the jury's consideration it is obvious that they could well have been satisfied beyond reasonable doubt that the vehicle mentioned in the unlawful use charge was used to transport the robber to and from the bank, and that the appellant had been in the vehicle at a material time because his thumb print was there.  But given the lack of any evidence of substance identifying the appellant as the person who entered the bank, and given the statements referred to above which could not truthfully have been made by the appellant, the jury may well have had a doubt as to whether or not the appellant actually entered the bank and committed the robbery.  In other words they could have given the appellant the benefit of the doubt on the robbery charge but have been satisfied that he had unlawfully used the motor vehicle for the purpose of assisting in the robbery.  It should be noted that the jury were not directed in accordance with s. 7 of the Code that assisting the robber by driving him either to or from the scene could implicate the appellant as a principal offender.  Particularly given the observations of Gaudron, Gummow and Kirby JJ in Mackenzie v. The Queen (1996) 71 ALJR 91 at 101 it cannot be said that the verdicts in question here were inconsistent.  There is no substance in that ground of appeal.

The final ground of appeal against conviction (ground 3) is that the learned trial judge "erred in failing to adequately direct the jury on the issue of identification evidence."  As the argument unfolded on appeal the principal contention was that the learned trial judge failed to isolate and identify for the benefit of the jury matters which might reasonably be regarded as undermining the reliability of identification evidence:  Domican v. The Queen (1992) 173 CLR 555.  The learned trial judge made extensive reference in his summing up to the identification evidence, and it will be necessary to refer to that in some detail.  The prosecution case at trial was conducted on the basis that there was no positive identification evidence establishing that it was the appellant who committed any of the offences.  The case advanced was a circumstantial one, and purported identification of a person similar to the appellant as being involved in the offence of 27 May 1996 at Biggera Waters was said to be but one of the relevant circumstances.  Counsel for the appellant conceded that as "far as general directions on identification go, there is no complaint."  There was no identification evidence relevant to the Paradise Point robbery.  The appellant did not give evidence, so the evidence led by the prosecution was uncontradicted.

The argument as developed was that the jury could have used purported identification evidence to "shore up other aspects of the circumstantial case for the prosecution".  It was said that in those circumstances detailed directions conforming with Domican should have been given.

Counsel for the appellant referred particularly in argument to evidence given by two witnesses who gave some evidence tending to identify the appellant as the person who committed the robbery at Biggera Waters; they were the witnesses James and Fyffe.

James owned a unit in a complex at Biggera Waters.  On the afternoon of 27 May 1996 he saw a female leave a white Ford Laser motor vehicle in a parking lot at that block of units and he had a brief conversation with her.  She was wearing a tracksuit.  She ran away from the units and he followed her onto the street.  He then saw a "bluey greeney" station wagon like a Mitsubishi Magna driving off, and said that a person in a tracksuit similar to that worn by the female was crouching over in the passenger seat.  He observed that a male was driving that car.  He only saw the male side on.  On 18 June, that is some three weeks after the incident, police officers showed James a photo board and video recorded James when he perused it.  The jury had that video as an exhibit.  The appellant was in position no 3 on that photo board. The video discloses that James fairly promptly pointed to photograph no 3 and said:  "Very similar to this one here".  There was reference to some change in hair colour and style.  When the police officer asked whether he could be 100% certain, James replied by saying he had "only seen him for a couple of seconds, you know, when he went ‑ when the car went past."  In response to pressure from the police officer he said he would be 85% positive with the identification; he again repeated the words "very similar to him".

When James was called as a witness at the trial on 14 April 1997 he was shown the same photo board and indicated the person in position no 6 as the person he had seen driving the car on the day in question.  He agreed under cross-examination he had only seen the male person for a couple of seconds whilst the car drove past; it was a side-on view.  He also said under cross-examination that he had not identified anybody else off that particular photo board.  When shown his original statement he agreed that he had initially identified the person in position no 3.  He then said he was not convinced that the person in position no 6 was the man he saw driving the car.  James also gave evidence purporting to identify the female he saw on the day in question as being Festa, but it is not necessary to detail that evidence for present purposes.  Suffice it to say that his purported identification was based to some extent on "the way she ran and the way she talked, the voice, similarities in her voice."

On 27 May 1996 the witness Fyffe resided at Biggera Waters.  His attention was drawn to some vehicles he saw in Oleander Avenue whilst looking from his front yard.  There was a white Ford Laser and also a blue Ford Laser.  The blue vehicle was being driven by a female.  He saw a male person alight from the blue vehicle and walk to the white vehicle and enter it through the back door.  He then drove off in it.  Fyffe was about 20 metres away from the two people and the vehicles.  In his evidence in chief he gave a description of what the male person was wearing.

On 30 May 1996 police showed Fyffe two folders each containing 500-750 photographs of male persons.  Fyffe did not identify anyone therein as similar to the male person he saw enter the white Laser; indeed the police evidence established that the appellant's photograph was not in the folders shown to Fyffe.

Fyffe gave evidence that on 20 June 1996 he was watching TV news when he saw thereon a person whom he identified as wearing the distinctive shorts he had seen the male person wearing at the time he entered the white Laser.  He notified police of that and the following day was shown a photo board containing photographs of twelve males.  The appellant was in position no 7.  Again the police video recorded Fyffe looking at that photo board, and that video was before the jury.  That video indicates that Fyffe fairly promptly pointed to photograph position 7 and said:  "I think no 7 is familiar".  In answer to a specific question from the police officer Fyffe said "I'd be 90% sure".  He also used the expression "pretty sure".  When giving evidence on 14 April 1997 he said in effect that he could not be absolutely certain of his identification because of some differences in the hair.

The summing commenced on the afternoon of 23 April, and was concluded on the morning of 24 April.  It is necessary to refer in some detail to what was said therein with respect to identification evidence, but I will refrain, as far as possible, from quoting lengthy passages.

The topic was first dealt with on the afternoon of 23 April.  Quite early on in the summing up the jury were told they had to be "particularly careful" when considering identification evidence.  Reference was made to the situation of a witness genuinely trying to tell the truth, and being honest, but being unreliable, particularly on the issue of identification.  It was pointed out that there was no challenge to the honesty of any of the witnesses who gave identification evidence, but the learned trial judge said it was "suggested that their purported identification is not necessarily reliable"; indeed he pointed out that in some cases it was "suggested that it is unreliable".  His Honour then referred to a number of factors relevant to the weight which should be attached to identification evidence, and in particular referred to a number of the traditional factors mentioned in cases such as R v. Turnbull (1977) Q.B. 224.

He then identified the real question for the jury as being whether the Crown had proved "that it was Renton who was involved in each of these robberies and Festa in relation to the second and third robberies."

On the morning of 24 April the first matter dealt with by the learned trial judge was that of identification evidence.  He pointed out that the "Crown relies solely on what we call circumstantial evidence" and went on to indicate that part of that circumstantial case was made up of identification evidence.  He said:

"That is, the attempts by the witnesses to try to identify the offenders or persons they have seen in the vicinity of where the offence was committed and in the vicinity of vehicles which are alleged to have been used in the course of the robbery.  Much of that evidence, I suppose we could say, is not very strong.  I refer to it as identification evidence, but in some cases its purported identification of the accused persons as the offenders in relation to some of the alleged offences.

You will recall the evidence that witnesses have been shown photo boards with photos of various persons on them and asked if they're able to identify anyone.  In some instances photos of the accused persons have been selected with various degrees of certainty.  In some cases the persons selected from the photo boards indicated a number of possibilities.  I think in some cases no identification was made from the photo boards at all."

He then again told the jury that when considering identification evidence they must "be very careful".  He then pointed out how easy it was to make "mistakes in identification".  He also told the jury that a "mistaken witness can also be an honest one".

The jury was told that they must "examine closely the evidence of the identification the witnesses made" and in doing that the learned trial judge again elaborated on the issues highlighted by decisions such as Turnbull.  He also told the jury that they had to have regard to "any material discrepancies in the description he gave of the person he saw and the person's actual appearance."  He then said:

"... it's a matter for you to assess the quality of the identification evidence in any particular case.  Some of it you may think is of poor quality and on its own may not take the Crown case much further.  In other cases you may think it is comparatively strong, but that's entirely a matter for you.  Now, as I've indicated to you, there are in this case a number of weaknesses in the identification evidence.  You will appreciate that most of the persons who gave identification evidence observed the offender, or the person they subsequently purported to identify, over fairly short periods of time, particularly those who observed the persons or the offenders committing the actual robbery.  In a number of cases the descriptions given by the witnesses don't always agree.  There are inconsistencies in some respects between the description given by the witness in their original statements and the descriptions they gave in evidence before you.

...

In some cases identification or purported identification is based on very minimal information.  You will recall Mr James' identification or purported identification.  I can indicate to you when I use the term 'identification' it doesn't mean a positive identification, it means his identification or purported identification.  It may or may not be correct, but you will recall that his identification of Festa was, he said, based on a few words which he said he had previously heard the woman speak and a few words that he heard Festa say in the precincts of that court, and he also based it on the manner of walking.  He said it was a similar walk to the female he had seen some time earlier ...  Of course, that is very different from identification or attempted identification from a photo board which has obviously its limitations, but that was the basis that Mr James said he made his identification.  Well, of course it's a matter for you to assess its weight and determine whether or not it's reliable.

The degree of certainty expressed by various witnesses differed considerably.  If I recall it correctly I don't think any of them claim to be 100% positive in their identification, but some use words such as - this is when they're looking at the photo boards - 'it looks like the person' or 'that's similar to the offender'.  I think all, or certainly most, of those identifications or purported identifications are recorded on video tapes and I invite you to listen carefully to them again if you think it necessary before you decide what weight to give to the evidence of those witnesses and their purported identification."

The learned trial judge then referred to the fact that in some instances the offenders were wearing disguises which made "identification additionally difficult".  There then follows another passage dealing with the capacity of a person to make an identification of someone previously unknown.  His Honour concluded that segment by saying:  "... identification is very important in this case, but that identification is a part and part only of the circumstantial evidence on which the Crown relies to prove its case."  Finally on this topic his Honour pointed to the fact that there was no direct identification by any person who knew the appellant.

The summing dealt extensively with similarities between each of the three robberies, and similarities between the way in which each of the motor vehicles referred to in the charges had been broken into and started without an ignition key.  There was reference to the appellant's fingerprint being in the motor vehicle used in connection with the Morningside robbery and evidence linking both the appellant and Festa to the unit at Pine Ridge Road.  There were also items found at that unit which the jury could well conclude associated persons using that unit with one or more of the robberies.

In dealing specifically with the Morningside robbery (the charge on which the appellant was found not guilty) the learned trial judge said:  "The Crown says you also have the evidence of Paul Baker, who identified the - I again use the term in qualified way - purported to identify Renton as being the male driver of the vehicle which was used in the robbery, a very short time prior to the robbery."

Against the background that the appellant had been in custody for a reasonable period of time prior to his release on home detention on 3 May 1996, evidence was led as to a series of cash purchases made by the appellant for considerable sums of money shortly after the robberies.  That evidence formed part of the Crown's circumstantial case against him.  One of the purchases in question was that of a motor vehicle on 14 June 1996.  In relation to that particular evidence the learned trial judge said this in his summing up:

"There is evidence that the Toyota sedan, 078-PUY, was purchased on 14 June 1996 by a male fitting Renton's general description.  You will recall the submission made to you yesterday that the description given by the vendor of that vehicle was fairly vague.  Certainly on that evidence you could not come to the conclusion that it was Renton but the Crown says, well, it may have been."

In dealing with the Crown case against Festa the learned trial judge adverted to the fact that there had been no address to the jury on her behalf because she had absconded.  He said:  "All I can do is really point out to you the weaknesses which do exist in the Crown case so far as the identification evidence is concerned."

Finally the learned trial judge summarised the defence submissions advanced by counsel on behalf of the appellant.  He referred to purported identification of the appellant made by the witness Hill and commented:  "that is just an example of the particularly unreliable identification evidence deduced by the Crown".

Then he went on to say:

"Your attention was drawn to the limitations which exist in identification from photo boards which only contain a photo of the face and the head and shoulders, do not show any profile or do not give any indication of the height of the person, may not be accurate so far as hair is concerned.  Because of his long hair it may be swept back and so forth, so again that identification by the witnesses has its limitations."

In dealing with the Morningside robbery his Honour said:

"So far as the Morningside offence particularly is concerned, it was pointed out to you that the description of the robber was really unsatisfactory.  If you consider some of the descriptions given, you could well come to the conclusion that it could not have been Renton who was the offender.  The descriptions given by some of the witnesses just did not fit Renton.  ... The description of Baker - you will remember young Baker - was based on an observation in the rear vision mirror of the motor vehicle.  Admittedly Baker subsequently purported to identify a photo of Renton on the photo board.  The defence says a description based on a view in the rear vision mirror for such a short period of time must surely be unreliable."

I have underlined in the various quotes the most significant observations made by the learned trial judge with respect to this particular ground of appeal.  As has been said this was not a case where there was positive identification of the appellant, and the purported identification evidence was, at most, a part of the circumstantial case.  Clearly the learned trial judge drew to the attention of the jury a number of weaknesses in the identification evidence and, as has been conceded, generally gave them appropriate warnings.  The fact that the jury returned a not guilty verdict with respect to the Morningside robbery demonstrates that the jury were conscious of the problems with identification evidence, and were fully aware of the deficiencies in the Crown case in that regard.  The general circumstantial case against the appellant with respect to the Morningside robbery was significantly weaker than the circumstantial case against him with respect to the other offences.

It is true that the learned trial judge did not specifically advert in his summing up to the fact that James had picked out the wrong person on the photo board whilst in the witness box.  But that is something which the jury could hardly have forgotten.  The problem facing a judge in a situation such as that is that the more one deals specifically with the evidence of one witness the more importance appears to be attached to the totality of that witness' evidence.  The jury had the video of James picking out the appellant on the photo board at a much closer point of time to the offence than was his evidence at the trial.  If there was detailed specific reference to James' error in identification whilst in the witness box in the summing up it may well have resulted in the jury accepting the initial identification and rejecting as an honest mistake what occurred whilst in the witness box.  By referring to the problems with identification evidence throughout the summing up the learned trial judge would undoubtedly have highlighted those concerns for the jury without placing undue emphasis upon the evidence of any one particular witness.  In the passage quoted above where there was specific reference to James, it is true that much of the thrust of what was said by the learned trial judge was directed to the identification of Festa; but in specifically saying that James' identification was based on photo boards and that had "obviously its limitations" was a specific warning of the dangers of acting on the identification evidence of James with respect to the appellant.

There was no application for redirections on any aspect of the summing up dealing with identification issues.  That is important, at least where the words used in the summing up are capable of bearing a construction complying with the Domican requirements.  The atmosphere of the trial cannot be re-created in the appeal record.  Words used in the context of counsels' addresses, not transcribed, may convey a nuance not apparent from a reading of the record book.  Vocal emphasis and pauses in delivery may also convey a message to the jury.  Experienced counsel assess the summing up at the time in the light of such considerations and failure to ask for a redirection on a known problem topic such as identification evidence often indicates an acknowledgment that the summing up is appropriate.  The words used here were capable of satisfying the Domican test and in the absence of a request for redirections I am satisfied that they in fact satisfied that test.

The majority in Domican were specifically concerned with the situation where "evidence as to identification represents any significant part of the proof of guilt of an offence" (561) and recognised that the direction required must be "appropriate to the circumstances of the case" (562).  Bearing in mind the fact that here the purported identification evidence was a relatively minor part (though important) of the circumstantial case the directions given were, in my view, adequate and appropriate.

In all the circumstances it seems abundantly clear that the jury was not prepared to act on purported identification where the other circumstances were not sufficient to result in the conclusion being reached beyond reasonable doubt that the appellant committed the offence.  Given all that was said in the summing up the purported identification evidence merely tended to establish some general similarity between the appellant and the male person seen at or near the scenes of the crimes.  At best the jury may have been comforted by the fact that the identification evidence did not suggest that some male person whose description was totally inconsistent with the appellant's appearance committed the offences in question.

It is true that there was evidence tending to establish an association between the appellant and Festa and other circumstantial evidence tending to establish a connection between either or both of them and the crimes in question.  In all the circumstances the association between the appellant and Festa was a relevant matter for the jury to have regard to.  But bearing in mind what has been said in relation to the summing up on the issue of identification, I cannot see that there is a real danger that the appellant's conviction is tainted because the jury may have used evidence, inadmissible against him but tending to identify Festa, as in some way bolstering the Crown case against him.  The submission was made on behalf of the appellant that the "inescapable conclusion is that the jury were being invited to use uncertain identification of one accused to bolster the case against the other".  A careful reading of the summing up in my view does not establish that proposition.

The circumstantial case against the appellant was particularly strong.  Two people approached the bank at Biggera Waters shortly after it closed on 27 May 1996 and smashed a whole in the door with a sledgehammer.  Each of the persons was wearing dark clothing and their faces were covered by balaclavas.  One of the persons was armed.  When the robbers departed they left behind the sledgehammer and a radio scanner.  Subsequently Police searched the unit at Pine Ridge Road rented by the appellant and Festa.  There they found an ear piece which fitted the scanner left behind at the bank by the robbers.  They also found in the unit ammunition consistent with use in the type of firearm used in the robbery.  There were also disguises, a sledgehammer, and large amounts of cash at that unit.

The robbery of the bank at Paradise Point was effected by a male person driving a car through the front door of the premises.  The male person was armed and was wearing a face mask with white beard.  The vehicle used to effect entry was a white Mazda registration number 950-ARB owned by a woman named Sutton.  When the robber left the bank he entered a red Laser motor vehicle registration number UZN-575, owned by a man named Pilbeam.  Personal property of Sutton and Pilbeam which had been in their respective cars when stolen was located in garbage at the Caltex Service Station at the corner of Pine Ridge Road and Oxley Drive Coombabah; the appellant's unit was in Pine Ridge Road and evidence suggested Festa visited that service station.  Audio tapes from Pilbeam's car were located in a Mercedes sedan which Festa had been seen driving.  Additional items of personal property from Sutton's motor vehicle were located at 2/88 Kangaroo Avenue, Coombabah where Police saw both the appellant and Festa.  At the appellant's unit in Pine Ridge Road the Police located ammunition consistent with use in a sworn off shotgun found after the robbery in Pilbeam's vehicle, items to make up disguises, and large amounts of cash.

There was other evidence which circumstantially linked the appellant to the commission of the offences, but those matters I have highlighted clearly demonstrate the strength of the case against him.

In all the circumstances the appeal against conviction should be dismissed.

The appellant also seeks leave to appeal against the sentences imposed on him.  He was sentenced to imprisonment for 14 years on each of the two armed robbery counts, to 3 years' imprisonment on each of the six counts of unlawfully using a motor vehicle with a circumstance of aggravation, and 18 months' imprisonment on the charge of attempted unlawful use of a motor vehicle.  The sentences were ordered to be served concurrently within themselves and with the balance of the sentences he was serving at the time of the commission of these offences.  An order was made that he "not be considered for release on parole before 28 April in the year 2004."

The appellant's criminal history is an important factor in determining the appropriate sentences.  The first significant period of imprisonment was imposed on the appellant in the Brisbane District Court on 17 April 1991.  He was then sentenced to 12 months' imprisonment with a recommendation for parole after serving 6 months on a receiving charge.  He was also given a similar sentence on that date for the offence of wilful and unlawful damage to property in the night time.  He apparently escaped form legal custody and unlawfully used a motor vehicle a short time later; he was then sentenced to 12 months' imprisonment.  In the Brisbane District Court on 15 April 1993 he was dealt with for three counts of armed robbery in company and five charges of unlawful use of a motor vehicle with the circumstance of aggravation that it was used for the purpose of facilitating the commission of an indictable offence.  The head sentence was 9 years' imprisonment with a recommendation for parole after serving 3 years.  He was then charged with various offences whilst in custody; in particular he was charged with taking part in opposition to lawful authority whilst in prison with circumstances of aggravation.  The sentence imposed at first instance was varied somewhat on appeal so that the effective sentence was 2 years' imprisonment with a recommendation that he be eligible for parole on 7 May 1996.  As already noted he was released on home detention on 3 May 1996.

The bank at Biggera Waters was entered after a sledge hammer had been used to smash a hole in the front door.  The robber pressed a gun up against the neck of an employee and demanded money.  That employee's neck was bruised as a result.  The sledge hammer and a radio scanner were left behind at that robbery scene.  A mailbag and its contents were stolen.  Entry was gained to the Paradise Point bank by driving a car through the front door.  In excess of $43,000 was stolen.

As was noted by the learned sentencing judge the offences were particularly serious because the appellant had only just been released on home detention.  In those circumstances the learned sentencing judge recognised there was no remorse and that the prospects for rehabilitation were not good.  There is no substance in the appellant's contention before this court to the contrary.

As the learned sentencing judge noted the sentence called for a strong deterrent element.  In the circumstances the applicant could properly be regarded as a danger to the community though aged only 25.

The robberies were carefully planned and involved the use of disguises, scanners and get-away vehicles.  The conduct was repeated and persistent.  In all of the circumstances the sentences were clearly within range and cannot be classified as manifestly excessive.

The application for leave to appeal against sentence should be refused.

The orders of the court should be:

·Appeal against conviction dismissed, application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 12 December 1997

I agree with Williams J.