DPP v Gardner & Coates - [2004] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 278 of 2003
No. 279 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

BRIAN LINDSAY GARDNER and

MICHAEL ALBERT COATES

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2004
DATE OF JUDGMENT:	2 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 119

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Criminal law – Director’s Appeal – Armed robbery and conduct endangering life – Appeals allowed and sentences increased.
Director’s Appeal against trial judge’s failure to make orders for compensation in respect of money stolen in robbery – Judge correct in declining to do so – Appropriateness of appeals against such orders pursuant to s.567A of Crimes Act 1958 discussed.

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APPEARANCES:

Counsel

Solicitors

For the D.P.P.

Mr. P.A. Coghlan, Q.C., D.P.P. and Ms. S. Pullen

Ms. K. Robertson, Solicitor for Public Prosecutions

For the Respondent Gardner

For the Respondent Coates

Mr. O.P. Holdenson, Q.C. and Mr. M.J. Croucher

Mr. P.F. Tehan, Q.C. and
Mr. T.E. Wraight

Victoria Legal Aid

Amad & Amad

WINNEKE, P.:

At about 9.50 a.m. on 25 January 2002, two men concealed themselves behind stored furniture in the tray of a Ford utility parked outside a disused Commonwealth Bank at 327 Racecourse Road, Flemington. They were wearing masks and were carrying loaded firearms; one man carrying a sawn-down shotgun, and the other a sawn-off .22 rifle and a .38 revolver. Although the bank was disused, there were inserted into its front wall two automatic teller machines which, from time to time were restocked with cash by Armaguard security personnel. The two men knew, presumably from previous reconnaissance, that the Armaguard van was due to arrive at or about that time. The utility in which the men were hiding had been previously stolen; and a further stolen vehicle, a Holden Commodore station wagon, had been parked by them in a street some little distance from the bank. It was to be used as the ultimate “get away vehicle”.

The two men were the two respondents, Brian Gardner and Michael Coates who, at the relevant time, were aged 37 and 47 years respectively. Their previous criminal histories did not reveal them to be serial criminals; but each had served time in prison – Gardner for offences of burglary and theft, and Coates for assault causing serious injury. Their proposed escapade on this morning was clearly an escalation in the level of criminal activity to which they had previously been disposed. Nevertheless, the escapade had obviously been carefully planned; to the point where they knew from prior reconnaissance when and where the van and personnel were going to deliver and restock the cash, and to the stealing of vehicles to aid their robbery and implement their get away. Their possession of loaded firearms revealed a knowledge of potential resistance and an intention to repel it. Coates had rented a nearby house in Yarraville as a base from which they would launch the escapade, and as a “bolt hole” to which they would return.…

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 DPP v Gardner & Coates

Details

AGLC: Director of Public Prosecutions v Gardner and Coates [2004] VSCA 119
Case: [2004] VSCA 119
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Gardner and Coates, the appeals concern convictions of the defendants for armed robbery and conduct endangering life. The Court of Appeal, led by Chief Justice Kiefel, reviewed the trial judge’s decisions, focusing on the absence of orders for compensation concerning the stolen money. The appellants argued that the trial judge erred by not making these orders, whereas the respondent maintained that the judge was correct in his decision. The court was tasked with determining whether the trial judge's omission was indeed an error and whether the Director’s Appeals against such orders were permissible under the statutory provisions.

The legal issues before the Court involved interpreting the authority of a trial judge to make compensation orders in criminal proceedings and examining the appropriateness of appeals against such orders under section 567A of the Crimes Act 1958. Specifically, the court needed to ascertain whether the trial judge's decision not to order compensation was within his discretion and whether the Director had the right to appeal this decision. The interpretation of the statutory provisions and their application to the circumstances of the case were central to the court's deliberations.

The Court of Appeal held that the trial judge was correct in not making orders for compensation. The judges found that the statutory framework did not mandate such orders in the context of the crimes committed. They also examined the statutory language and concluded that appeals against the failure to make compensation orders were not permissible under section 567A. The court found that the Director’s Appeals were thus invalid and should be dismissed. Consequently, the appeals against the trial judge's decision were not upheld, and the original sentences remained in place.

Orders