and John Reid v The Queen - [2014] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0134
JOHN REID	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2014
DATE OF JUDGMENT:	21 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 295
JUDGMENT APPEALED FROM:	DPP v Reid (Unreported, County Court of Victoria, Judge Patrick, 3 March 2014 (Conviction))

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CRIMINAL LAW – Armed robbery and recklessly causing serious injury – Description of offenders by victim inconsistent with victim’s photo board identification of the applicant – Whether photo board identification ‘recognition’ of offender seen prior to the offence – Whether evidence of photo board identification should have been excluded pursuant to s 137 of the Evidence Act 2008 – Whether verdicts unsafe and unsatisfactory – Leave to appeal against conviction refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Randazzo SC	Doogue O’Brien George
For the Crown	Ms S Flynn	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

WEINBERG JA
WHELAN JA:

Following a trial in the County Court, the applicant was convicted of armed robbery, acquitted of intentionally causing serious injury and convicted of the alternative charge of recklessly causing serious injury. His co-offender, Jay Appleby, was found guilty of the same charges.

The applicant seeks leave to appeal against his conviction on the following grounds:

1.The learned trial judge erred in ruling admissible the evidence of the photo board identification, as it was evidence:
(a)amounting to evidence of ‘recognition’ as opposed to identification; and

(b) which had little probative value; and/or
(c)in which the danger of unfair prejudice to the applicant outweighed the probative value.

2.The verdicts of guilty are unsafe and unsatisfactory, in that:
(a)it was not reasonably and logically open to the jury to find the applicant was the first male and/or one of the two offenders, based on all the evidence, and in particular the description of the first male [said to be the applicant] as being a person with blond hair and wearing light coloured trousers (not tracksuit pants); and
(b)in light of the evidence, the finding by the jury, as to the two offenders being the applicant and [co-offender] Appleby, was ‘factually inconsistent’ and represented an ‘affront to logic and common sense’.[1]

[1]Citations omitted.

For the reasons that follow, we would refuse leave to appeal.

Background

Circumstances of the offending

The circumstances of the offending were as follows.

At around 2am on 13 August 2012, the victim, Ivan Basile, and his associate Shannon Thomas met a group of three men in the car-park of the Middle Hotel in Ferntree Gully. The three men were the applicant, Appleby and Paul Uhe. The purpose of the meeting was for Thomas to sell a quantity of the drug ‘ice’ (methylamphetamine). Basile had a conversation with the applicant. After a short time, all five men entered the car being driven by Basile, and he drove them to a residential address where Thomas went inside for about 10 minutes. The others remained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading and John Reid v The Queen

Details

AGLC: and John Reid v The Queen [2014] VSCA 295
Case: [2014] VSCA 295
Decision Date: 21 November 2014

CaseChat Overview and Summary

The applicant was convicted of armed robbery and recklessly causing serious injury. The victim provided a description of the offenders which was inconsistent with the photo board identification of the applicant. The applicant argued that the evidence of the photo board identification should have been excluded because it was unreliable and the victim's description was a "recognition" of the offender seen prior to the offence. The applicant also argued that the verdicts were unsafe and unsatisfactory. The court held that the evidence of the photo board identification was admissible and reliable, and the victim's description was not a "recognition" of the offender seen prior to the offence. The court also held that the verdicts were safe and satisfactory. The applicant's application for leave to appeal against conviction was refused.

The legal issues before the court were whether the evidence of the photo board identification should have been excluded under section 137 of the Evidence Act 2008, and whether the verdicts were unsafe and unsatisfactory. The court considered the reliability of the photo board identification and the circumstances in which it was obtained. The court also considered the victim's description of the offenders and whether it was a "recognition" of the offender seen prior to the offence. The court held that the evidence of the photo board identification was reliable and admissible, and that the verdicts were safe and satisfactory. The court rejected the applicant's arguments and refused leave to appeal against conviction.

Orders