Johnson v Giumelli

[2003] ACTSC 58

SHANE EDMUND JOHNSON v COLIN GIUMELLI
[2003] ACTSC 58 (22 July 2003)

EX TEMPORE REASONS FOR JUDGMENT

EVIDENCE – identification evidence – identification from video photo images and an in-court identification – whether Magistrate failed to expressly identify the weaknesses in the identification evidence – whether Magistrate failed to expressly warn herself of the danger of convicting the appellant in light of those weaknesses.
SENTENCING - Crimes Act 1900 (ACT), s 375 (10) – whether s 375 (10) constitutes a bar to the cumulation of sentences in the Magistrates Court beyond two years imprisonment.

Evidence Act 1995 (Cth), s 116
Crimes Act 1900 (ACT), s 375

Grbic v Pitkethly (1992) 38 FCR 95
Sharret v Gill (1993) 113 FLR 316
Tatam v Svikart [1999] NTSC 146

Domican v The Queen (1992) 173 CLR 555
Pitkin v The Queen (1995) 130 ALR 35

Knight v Birch (1992) 106 FLR 109
Seckold v Trembath [2001] ACTSC 45

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 16 of  2003

Judge:          Gray J
Supreme Court of the ACT

Date:   22 July 2003

IN THE SUPREME COURT OF THE     )
  )          No. SCA 16 of  2003
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:SHANE EDMUND JOHNSON

Appellant

AND:COLIN GIUMELLI

Respondent

ORDER

Judge:  Gray J
Date:  22 July 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed. 

1. The convictions for burglary and theft and the breach of recognisance consequent thereon be set aside.

1. The proceedings in respect of those offences be remitted to the Magistrates Court for further hearing and determination.

1. This is an appeal from a Magistrate against conviction and sentence imposed upon the appellant in respect of offences of burglary and theft.  The offences occurred on 27 September 2002 and the property comprised three winches and four sets of driving lights taken from the premises of ARB Corporations Limited (ARB) at Fyshwick.

1. The appellant was convicted of these offences and, on 7 March 2003, he was sentenced to two years imprisonment on each offence to be served concurrently but cumulative upon an admitted breach of recognisance in respect of which seven months imprisonment was imposed.  A non-parole period of 20 months was set.

The offences

1. The burglary and theft in respect of which the appellant was charged, was recorded on security cameras located at various positions within and outside the premises.  The video tape from those cameras was in evidence in these proceedings.  The offences occurred at about 3.00 pm in the afternoon and involved the removal of items from the storeroom in the premises.

The observations of the offender

1. At about the time of the offence Mr Scales, an employee of ARB, saw a person at the premises with whom he had a short conversation.  At the time he was within a metre of the person and had a conversation which lasted 20 – 25 seconds.  He described the man as having “sort of long darkish sort of hair”, that he “had a baseball style cap…