McElroy v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0110

LEIGH McELROY	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0186

ROBERT WALLACE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	SANTAMARIA, BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	21 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 126
JUDGMENT APPEALED FROM:	DPP v McElroy (Unreported, County Court of Victoria, Judge Maidment, 15 March 2017) (Conviction); DPP v McElroy (Unreported, County Court of Victoria, Judge Maidment, 3 May 2017) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Armed robbery – Whether verdict unreasonable or cannot be supported having regard to evidence – Circumstantial case – Identity of offender in issue – Evidence of physical appearance – Whether jury must have entertained reasonable doubt about guilt of applicant – Leave to appeal refused.

EVIDENCE – Admissibility – Seizure and search of mobile phone – Where police seized mobile phone without warrant – Where seizure not incidental to arrest of applicant – Whether evidence improperly or illegally obtained – Whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way in which evidence was obtained – Ghani v Jones [1970] 1 QB 693 discussed – Evidence Act 2008 s 138 – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Armed robbery – Principle of parity – Sentence of seven years’ imprisonment with non-parole period of four years and nine months – Where co-offender sentenced to five years and nine months’ imprisonment with a non-parole period of three years and ten months – Whether disparity manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in S APCR 2017 0110	Mr S Bayles	Haines & Polites
For the Applicant in S APCR 2017 0186	Mr C T Carr	Valos Black & Associates
For the Respondent in both proceedings	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA
BEACH JA
ASHLEY JA:

Introduction

The applicants are Leigh McElroy and Robert Wallace. McElroy and Wallace each stood trial on one charge of armed robbery. Each man was found guilty by jury verdict. A co-accused, Robert Barden, pleaded guilty to one charge of armed robbery. McElroy was sentenced to five years and nine months’ imprisonment with a non-parole period of three years and ten months. Wallace was sentenced to seven years’ imprisonment with a non-parole period of four years and nine months. Barden was sentenced to five years and four months’ imprisonment with a non-parole period of three years and six months.

McElroy seeks leave to appeal against conviction. Wallace seeks leave to appeal against conviction and sentence. In broad terms, the proposed grounds in the applications for leave to appeal against conviction, taken together, raise two discrete issues. The first issue concerns the reasonableness of the verdict on the charge of armed robbery in respect of McElroy and whether that verdict can be supported having regard to the evidence. The second issue, which is raised in Wallace’s application, concerns the lawfulness of the seizure of a mobile phone and the admissibility of certain evidence obtained during a search of the data on that phone.

For the reasons that follow, McElroy’s application for leave to appeal against conviction should be refused; Wallace’s application for leave to appeal against conviction should be granted, but the appeal should be dismissed; and Wallace’s application for leave to appeal against sentence should be refused.

Circumstances of the offending

On the afternoon of 25 July 2015, Theresa McLeod parked her car in the carpark of the IGA supermarket in Bell Street, Pascoe Vale. The car was a black 2010 Holden Commodore with the registration ‘SRJ’. It had a distinctive body kit and bore Pontiac badges.

After shopping for groceries, Ms McLeod returned to her car, loaded the groceries into the boot and sat in the driver’s seat. Suddenly, a man approached her and demanded that she hand over the keys to the car. Ms McLeod thought that the man was carrying a shotgun.

Initially Ms McLeod refused to surrender the car. She then observed a second man approaching her car from behind. She handed over the car keys to the first man and stepped away from the car. The first man entered Ms McLeod’s car and drove it out of the carpark.

Parked behind Ms McLeod’s car was a gold-coloured car. Ms McLeod observed the second man enter the gold-coloured car, which then drove out of the carpark, following the stolen car.

The issues

McElroy, Wallace and Barden were each tried on one charge of armed robbery. One of the issues at trial was whether McElroy himself took part in the armed robbery. Plainly, by its verdict, the jury found that he did. This issue is the subject of McElroy’s application for leave to appeal against conviction. In particular, McElroy has sought leave to appeal on the sole ground that the verdict on the charge of armed robbery is unreasonable or cannot be supported having regard to the evidence.

During subsequent investigations, police seized two mobile phones. Each phone contained a number that was registered in the name of an associate of McElroy or Wallace. Relevantly, the trial judge ruled that the seizure of one of those phones was lawful and that certain evidence obtained from it was admissible. The lawfulness of the seizure of that phone and the trial judge’s ruling on this matter are the subject of Wallace’s application for leave to appeal against conviction.

The issue that is the subject of Wallace’s application for leave to appeal against sentence may be stated briefly: is there an excessive and unjustified disparity between the sentence imposed on Wallace and the sentence imposed on McElroy?

It is convenient first to deal with McElroy’s application for leave to appeal against conviction. In doing so, we emphasise that some of our discussion in the course of dealing with that application, including the summary of events that occurred before and after the armed robbery, is relevant to Wallace’s application for leave to appeal against conviction and, where necessary, will be elaborated in our consideration of that application. Finally, we will deal with Wallace’s application for leave to appeal against sentence.

A. Conviction: McElroy

Before evaluating the contention that the verdict on the charge of armed robbery is unreasonable or cannot be supported having regard to the evidence, it is necessary first to summarise the evidence led by the Crown in the case against McElroy.

Evidence of Ms McLeod

Ms McLeod gave evidence that, on 25 July 2015, she had been shopping near Essendon Airport. She said that she later drove on a freeway and turned onto Bell Street in Pascoe Vale. She then turned left onto Lansdowne Street before turning right into the rear carpark of the IGA supermarket. She arrived at the supermarket at about 1:30 pm and parked several metres away from the rear entrance to the supermarket. She had been driving a ‘black SS Commodore, SSV’, which belonged to her and her husband. The wheels of the car had a distinctive body kit and bore Pontiac badges.

Ms McLeod said that she was in the IGA supermarket for ten to fifteen minutes. She returned to her car, opened the boot to put her groceries inside and opened the driver’s door. She recalled that, as she was entering the car, she felt the presence of another person behind her. She tried to put the keys in the ignition but saw a man standing at the door, holding a gun. He said to her, ‘Give me your car’. Initially, she refused, but later gave him the car keys after she looked over her shoulder and saw another man approaching the car.

Ms McLeod said that she saw the gunman enter the car and drive away from the carpark. She then saw the second man enter the passenger door of another car, which she described as a ‘golden’, ‘dull gold’ or ‘dark yellow-ish’ colour. She gave evidence that she noticed another person in the driver’s seat of that car, but she could not describe that person. In cross-examination, she gave evidence that she did not see the driver of the gold-coloured car but assumed that that car had a driver, since it drove away after the second man entered the passenger door. According to Ms McLeod, the gold-coloured car followed the stolen car out of the carpark. She made a note in her phone of the registration plate number of the gold-coloured car as ‘FCH 474’.

Ms McLeod described the gunman as having dark, wavy hair, a ‘broad round-ish face’ and thick lips. She said that he was quite tall, five-foot-nine to five-foot-ten, with a stocky build and a suntanned or olive complexion. He was clean-shaven and wore sunglasses. Ms McLeod said that she did not see the second man’s face or notice anything unusual about him, but that ‘he looked like a similar type of person’.

Evidence of Ms Hill

Catherine Hill was in the carpark of the IGA supermarket at the time of the armed robbery.

Ms Hill gave evidence that, on 25 July 2015 at about 1:35 pm, she turned into the carpark of the IGA supermarket in Pascoe Vale and parked her car. She said that she had immediately noticed a man standing next to a car, which she described as ‘an old sort of Holden Commodore’ of a ‘mustard’ or ‘gold’ colour. Initially she thought that the man was holding a bat, but she looked up again and saw that he was holding a gun. Ms Hill said that she reversed out of her initial parking spot and moved further down the carpark.

Ms Hill said that, as she was moving, she continued to observe the gunman. He was walking towards ‘a rather nice expensive-looking car’ with a personalised registration plate number, which she recalled was ‘SRJ’. Ms Hill saw the gunman approach that car and speak to the lady in the driver’s seat for a few seconds. By the time that Ms Hill moved to a different parking spot, she noticed that ‘the lady’s car was gone and … the other car was gone as well’.

Ms Hill described the gunman as wearing a hooded jumper and possibly sunglasses. He had ‘darkish hair’ and his skin was ‘kind of dark and tanned as well’. He was around six feet tall. Ms Hill noticed a person inside the gold-coloured car but did not recall where that person was sitting. She could not recall with certainty whether that person was male or female.

Evidence of Mr Johnstone

Adam Johnstone described certain events that occurred shortly before the armed robbery. His evidence assumes some importance in McElroy’s application for leave to appeal against conviction.

Mr Johnstone gave evidence that, on 25 July 2015 at about 1:30 pm, he was sitting in the front passenger seat of a black Subaru XV being driven by his fiancée along Bell Street in Pascoe Vale. The Subaru had been driving on the Tullamarine Freeway before turning onto Bell Street. The traffic was heavy. Mr Johnstone recalled that the Subaru, travelling in the right lane, reached a set of traffic lights next to a Caltex petrol station on the corner of Bell Street and Cumberland Road. When the light turned green, Mr Johnstone noticed a car in the left lane (from which only a left turn could legally be made) speeding up and crossing lanes to move in front of the Subaru. He said that the car was ‘a very flat, gold colour’.

Mr Johnstone said that, as the Subaru and the gold-coloured car were waiting at the traffic lights next to the Caltex petrol station, he noticed some people sitting in the gold-coloured car. Mr Johnstone described the front seat passenger in that car as follows:

So when I looked to my left I remember seeing a – the – the front-side passenger, ah, leaning forward. I remember him being gaunt, very pale, and I remember a blond – what looked like blond, peroxided hair and it – I’m not able to recall whether there was a hat or not, but I think he was wearing a hat … I feel that he was around 25.

Mr Johnstone described the driver of the gold-coloured car as follows:

The – the driver I didn’t see as clearly, but I do remember that the driver was unshaven, that he had, um, scruffy hair, sort of longish to around I guess that sort of level … Ah, just, ah, sort of not all the way down the shoulders but just sort of a little bit up. Just looked a – sort of like that wavy, medium-length scruffy sort of hair … And with a baseball cap. And unshaven. Not a beard but unshaven.

Mr Johnstone gave evidence that, after moving in front of the Subaru after the light turned green, the gold-coloured car continued to travel along Bell Street ‘a few cars in front, either to the right or to the left’ of the Subaru. He said that, when the Subaru caught up to the gold-coloured car, he had noticed the men in the car ‘sort of bouncing around like they were laughing or talking or there was some sort of banter’. He had also noticed a third person in the car, a back seat passenger. However, Mr Johnstone could not describe that person.

Mr Johnstone said that he saw the driver of the gold-coloured car turn around and, immediately, the back seat passenger pulled what looked like a hood over his head. Having refreshed his memory by reading a statement that he had made to police after the incident, Mr Johnstone gave evidence that all three passengers in the gold-coloured car pulled hoods over their heads ‘in unison’. He saw the gold-coloured car turn left from Bell Street into ‘an IGA or something along those lines’.

Mr Johnstone gave evidence that he had made a mental note of the registration plate number of the gold-coloured car as ‘RCH 477’. He added that there were ‘a few other variations of that’. He was sure that the number ended in ‘477’, but he was unsure of the first letter. The other variations included ‘MCH 477’, ‘RCH 477’ and ‘SCH 477’. Mr Johnstone identified the Subaru and the gold-coloured car from CCTV still images obtained from the Caltex petrol station on the corner of Bell Street and Cumberland Road.

During cross-examination, Mr Johnstone was again asked about the appearance of the front seat passenger in the gold-coloured car. He gave evidence that the front seat passenger had his mouth wide open, ‘was sort of looking a little bit towards the right’ and that his face ‘was gaunt’ and ‘a little bit pimply’. When asked whether he saw any tattoos or piercings, Mr Johnstone shook his head.

Events before and after the offending

Between 21 and 22 July 2015, two vehicles were stolen from a car yard in Kangaroo Flat: a ‘green martini’ Holden Commodore (registration plate number ‘TDX 516’) and a grey Holden Commodore (registration plate number ‘UZP 445’). At trial, the Crown alleged that the ‘green martini’ Holden Commodore was in fact the gold-coloured car that witnesses had seen shortly before and during the time of the armed robbery.

On 25 July 2015, shortly after the armed robbery took place, the gold-coloured car and the stolen car were captured on CCTV at various locations in the northern suburbs of Melbourne. In particular, CCTV footage showed Wallace and Barden walking through the Taylors Hill Shopping Centre. At that time, other CCTV footage showed that the stolen vehicle was unattended in the carpark of that shopping centre. Still images of this CCTV footage were tendered in evidence.

On 27 July 2015 at about 2:30 pm, police executed a search warrant at 77 Maple Street, Golden Square. The ex-partner of Barden, Reannon Davey, resided at that address. The gold-coloured car was located on the front lawn of the property, and Wallace’s and Barden’s fingerprints were found on the outside of the vehicle. McElroy’s birth certificate and his photograph were found inside the car. A registration plate, number ‘TDX 516’, was found inside Ms Davey’s home.

Later that night, at about 11:00 pm, McElroy and Barden were arrested at Werribee Stock Feed in Tarneit in connection with a separate burglary. The owner of Werribee Stock Feed found the two men in a grey Holden Commodore (registration plate number ‘UZP 445’). He later described one of them as having ‘really blonde hair, really white skin and tattoos on his neck and his hand, and being skinny not muscly.’ At trial, it was agreed that McElroy was the person seen by the owner of Werribee Stock Feed and that, at the time, McElroy had blonde hair, a large tattoo on the right side of his neck and tattoos on his hands.

On 29 July 2015, a relative of the owner of Werribee Stock Feed found a white Samsung mobile phone on the grounds of Werribee Stock Feed. He handed the phone to the police. The phone contained a number the last three digits of which are 701 (‘the 701 number’). The 701 number was registered in the name of Jamie-Lee Ruthven, who was McElroy’s partner at the time. She resided with McElroy at 19 Hurley Street, Melton. The police carried out an investigation of the contents of the phone.

On 30 July 2015, police in Bendigo attended the address of one Jasmine Aziz at 60 Lockwood Road, Kangaroo Flat, for the purpose of arresting Wallace in relation to an alleged shooting that had occurred earlier that day in the Bendigo area. Wallace was not at the premises, but Ms Aziz was arrested in relation to a number of outstanding warrants. While searching the premises, police seized a white Samsung mobile phone which belonged to Ms Aziz (‘the Aziz phone’).[1] The circumstances of this seizure are relevant to Wallace’s application for leave to appeal and are explained in greater detail below.
[1]It is not altogether clear from the evidence whether the Aziz phone, which belonged to Ms Aziz, contained the 369 number, which is registered in the name of Ms Aziz.

The mobile phone evidence

Various photographs of the contents of the white Samsung mobile phone containing the 701 number were tendered in evidence. Those photographs show the profile of the Facebook account of Barden, in the name of ‘Rabzy Barden’. In particular, they show a number of messages that were exchanged between Barden and others. It is unnecessary to extract each of the messages. Their content is highly elliptical (in the manner of social media) but their substance seems to be as follows.

On 25 July 2015, Barden sent a message to a Facebook account styled ‘Ingrid Tinkabell West’. He asked the recipient to call him on the 701 number and added that he had a ‘pontiac hot v8’. Subsequently, Barden sent a message to a Facebook account in the name of ‘Ryan Trowsdale’ attaching three photos of a black Holden Commodore that bore Pontiac badges. In the message, he asked the recipient whether he was interested in the car. An enlarged image of the car reveals the registration plate number ‘SCH 477’. The data on the mobile phone shows that photographs of the black Holden Commodore were taken on 25 July 2015 at 3:35 pm. Photographs of what appear to be articles published online, entitled ‘Car stolen at gunpoint in Melbourne’, were also taken at various times on 25 July 2015.

The informant, Detective Senior Constable Mark Walsh, gave evidence with respect to the 701 number and two other mobile phone numbers, being a number the last three digits of which are 403 (‘the 403 number’) and a number the last three digits of which are 369 (‘the 369 number’).

Mr Walsh gave evidence that the 403 number was registered in the name of one Stella Ashley of 19 Hurley Street, Melton. It was saved as a contact under the name ‘My Sxc Girl’ in the mobile phone containing the 701 number. Mr Walsh said that, a month or so after the armed robbery, he called the 403 number and spoke to Ms Ruthven, McElroy’s partner at the time. Mr Walsh said that Stella Ashley appeared to be the name of a business and that Ms Ruthven’s Facebook profile noted Ms Ruthven’s occupation as ‘Owner/manager at Stella Ashley’.

Mr Walsh also gave evidence that he believed that the 369 number was registered in the name of Ms Aziz. Ms Aziz was an associate of Wallace.

Mr Walsh said that the white Samsung mobile phone containing the 701 number had a feature that enabled an automated text response of ‘I’m in class’ to be sent to a caller when an incoming call is rejected by the proposed recipient of that call.

It is convenient to pause here to note that the Crown at trial contended that the message history of the 701 number was consistent with the use of that number (and the mobile phone containing that number) between 23 and 27 July 2015 by all three co-offenders; none of them was an exclusive user of that phone or number.

Mobile phone records which recorded text messages sent to and from the 701 number between 24 July 2015 and 27 July 2015 were also tendered in evidence. Relevantly, the records reveal the following:

(a) On the afternoon of 24 July 2015, the day before the armed robbery, text messages that gave directions to Melton were sent from the 701 number to an unknown recipient.

(b) On 25 July 2015 at 12:08 pm, some one hour and twenty minutes before the armed robbery, a text message that stated ‘Just leaving melton now’ was sent from the 701 number to another unknown recipient.

(c) On 25 July 2015 at 12:31 pm, another text message that stated ‘Hey do use guy’s swap stuf [sic] for gear if so what sort of stuff do use want like a car or Bike clothes anything’ was sent from the 701 number to the same unknown recipient who received the text message sent earlier at 12:08 pm.

(d) On 25 July 2015 at 12:49 pm, the 701 number missed a call from the 403 number. Some twenty seconds later, a text message that stated ‘I’m in class’ was sent from the 701 number to the 403 number.[2]
[2]See [37] above.

(e) On 25 July 2015 at 2:44 pm, approximately one hour after the armed robbery, a text message that stated ‘Do u know anyone that will buy a ve pontiac g8’ was sent from the 701 number to the 369 number (Ms Aziz).

(f) On 25 July 2015 at 3:48 pm, a text message that stated ‘Hey its wallace he wants half bag and 3 grand i didn’t hear him say that soz its a nice car ill send ya pic’s [sic]’ was sent from the 701 number to an unknown recipient.[3]
[3]See [36] above. It is to be recalled that the data on the mobile phone shows that photographs of the black Holden Commodore were taken on 25 July 2015 at 3:35 pm.

(g) Later in the afternoon of 25 July 2015, the following exchange of text messages took place:

Time

Sender

Recipient

Message

5:25 pm

The 403 number

The 701 number

Is it stolen? How much

5:26 pm

The 701 number

The 403 number

Yeah and half bag and 3 grand

5:33 pm

The 403 number

The 701 number

Oh ok umm I’ll ask around babe when u coming home

6:18 pm

The 701 number

The 403 number

Im on I’m on me way home now okay

(h) On several occasions between 25 July 2015 and 27 July 2015, the 701 number missed a call from the 403 number.

Other evidence of physical appearance

The white Samsung mobile phone contained photographs of McElroy that were taken several days before and after the day of the armed robbery. In particular, a photograph taken on 20 July 2015 shows that McElroy had three metal studs under his bottom lip and two studs in his left eyebrow. It also shows that McElroy had a prominent tattoo on his neck. Another photograph taken on 26 July 2015, the day after the armed robbery, shows McElroy lying down, asleep, with his hands not visible. No piercings are visible, but a prominent tattoo is visible on his left hand.

Mr Walsh gave evidence with respect to McElroy’s appearance. He said that he had met and seen McElroy a number of times. He agreed that McElroy had tattoos on both of his hands and that the back of one hand is almost completely tattooed. He also said that the tattoos were prominent even when McElroy wore long sleeves.

The applicable legal principles

Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if the Court is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

In R v Baden-Clay,[4] the High Court highlighted the fundamental nature of the role of the jury in our system of criminal justice as ‘the constitutional tribunal for deciding issues of fact’ in relation to allegations of serious crimes.[5] The Court said:[6]

Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,[7] the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial[8] …
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] 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’.[9]

[4](2016) 258 CLR 308.

[5]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ), citing Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ). See also Brennan v The King (1936) 55 CLR 253, 266 (Dixon and Evatt JJ); Sparre v The King (1942) 66 CLR 149, 154 (Starke J); Keeley v Mr Justice Brooking (1979) 143 CLR 162, 188 (Murphy J); Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 601 (Brennan J); MacKenzie v The Queen (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ); MFA v The Queen (2002) 213 CLR 606, 621 [48] (McHugh, Gummow and Kirby JJ).

[6]R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].

[7]Kingswell v The Queen (1985) 159 CLR 264, 301 (Deane J); Brown v The Queen (1986) 160 CLR 171, 201 (Deane J); Katsuno v The Queen (1999) 199 CLR 40, 63–4 [49] (Gaudron, Gummow and Callinan JJ); Cheng v The Queen (2000) 203 CLR 248, 277–8 [80] (Gaudron J); Alqudsi v The Queen (2016) 258 CLR 203, 208 [2], 213 [16] (French CJ), 273–4 [195] (Nettle and Gordon JJ).

[8]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606, 621–2 [49]–[51], 623 [56] (McHugh, Gummow and Kirby JJ).

[9]M v The Queen (1994) 181 CLR 487, 494–5. See also R v Hillier (2007) 228 CLR 618, 630–1 [20] (Gummow, Hayne and Crennan JJ) and the authorities there cited.

In order to succeed on this proposed ground, McElroy must establish that the jury was bound to acquit him.[10] In Libke v The Queen,[11] Hayne J (with whom Gleeson CJ and Heydon J agreed) said that the relevant question was ‘whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[12]
[10]Ashley v The Queen [2016] VSCA 245 [56] (Redlich, Weinberg and Hansen JJA).
[11](2007) 230 CLR 559.
[12]Ibid 596–7 [113] (emphases in original). See also R v Klamo (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ).

In Mejia v The Queen,[13] Kyrou and Kaye JJA discussed what it meant for an appellate court in this context to have a ‘doubt’ about a person’s guilt:

Ordinarily, in this respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered. However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court. Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury’s advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[14]
[13][2016] VSCA 296.
[14]Ibid [140].

Submissions

During oral argument before this Court, counsel for McElroy conceded that there was evidence that showed a connection between McElroy and each of (a) his co-offenders, Wallace and Barden; (b) the gold-coloured car; and (c) the 701 number. Counsel also conceded, as was conceded in defence counsel’s closing address before the jury, that the entry in the mobile phone records in relation to the 701 number on 25 July 2015 at 5:25 pm (‘Is it stolen? How much’) was a communication between McElroy and Ms Ruthven and that it showed that, at that time, McElroy had used the phone and had knowledge of a stolen vehicle. Counsel also accepted that it was open to the jury to find that there were three men involved in the armed robbery.

However, counsel for McElroy pointed to a number of matters that, he submitted, should have led any properly-instructed jury to find that McElroy was not guilty of the armed robbery. He contended that Mr Johnstone’s description of the front seat passenger in the gold-coloured car as a ‘gaunt, very pale’ man with ‘blond, peroxided hair’ was broad and incomplete. Counsel pointed out that Mr Johnstone, as the front seat passenger in a car in the right lane, had a clear view of the front seat passenger in an adjacent car in the left lane; yet, observed counsel, Mr Johnstone gave evidence that he did not see any tattoos or piercings on the front seat passenger. Counsel also pointed out that it was common ground at trial that, around the time of the offending, McElroy had a large tattoo on his neck and hands and studs on his lower lip and eyebrow.

Counsel for McElroy contended that Mr Johnstone’s description of the front seat passenger in the gold-coloured car was consistent with there being a person who is connected to Wallace and Barden, and who has the same ambiguous appearance described by Mr Johnstone, sitting in the front passenger seat of the gold-coloured car a few minutes before the armed robbery.

In his written submissions, McElroy observed that, despite their association, there was no evidence that placed the three co-offenders together before 5:25 pm on 25 July 2015. He also said that there was no evidence that placed the three co-offenders together in the 24 hours leading up to the armed robbery. He added that none of the CCTV footage captured after the armed robbery disclosed his presence with the stolen car and that neither his fingerprints nor his DNA was found on the gold-coloured car. Furthermore, said McElroy, there was no evidence that connected him to the gold-coloured car before 27 July 2015.

In its written submissions, the respondent said that it was not appropriate to evaluate individual pieces of evidence in a circumstantial case. During oral argument, senior counsel for the respondent emphasised (a) the similarities in the appearance of McElroy around the time of the offending and Mr Johnstone’s description of the front seat passenger in the gold-coloured car; and (b) the connection between McElroy and the mobile phone containing the 701 number, by reference to the mobile phone records in relation to that number. He contended that the evidence, viewed as a whole, was not such that the jury must have entertained a doubt about McElroy’s guilt.

Analysis

We are not persuaded that the jury must have entertained a doubt about McElroy’s guilt. This conclusion is supported by the following matters.

First, accepting that McElroy was connected to the gold-coloured car,[15] the evidence compels the inference that the gold-coloured car was used in the armed robbery. Each of Ms McLeod, Ms Hill and Mr Johnstone described seeing a car of ‘a very flat, gold colour’, a ‘mustard’ colour or a ‘golden’, ‘dull gold’ or ‘dark yellow-ish’ colour shortly before or during the armed robbery. Ms McLeod and Ms Hill, in particular, saw that car follow the stolen car out of the carpark of the IGA supermarket immediately after the armed robbery. The car also matched the description of the car found on the front lawn of the property in Golden Square on 27 July 2015, and fingerprints from Wallace and Barden were found on the outside of the car. Moreover, the registration plate found inside the property in Golden Square (TDX516) matched that of the ‘green martini’ Holden Commodore stolen from a car yard in Kangaroo Flat between 21 and 22 July 2015.
[15]It will be recalled that, on 27 July 2015, police found McElroy’s birth certificate and his photograph inside the gold-coloured car.

Secondly, accepting that McElroy was connected to the mobile phone containing the 701 number,[16] there is a strong basis from which to infer that it was McElroy who used that phone before and after the armed robbery. On 24 July 2015, the day before the armed robbery, text messages that gave directions to Melton (where McElroy lived) were sent from the 701 number. On 25 July 2015, approximately one hour and twenty minutes before the armed robbery, a text message that stated ‘Just leaving melton now’ was sent from the 701 number. As explained above, counsel for McElroy accepted that the text message sent by the 701 number to the 403 number on 25 July 2015 at 5:26 pm (‘Yeah and half bag and 3 grand’ in response to ‘Is it stolen? How much’) disclosed knowledge on the part of McElroy of a stolen vehicle. As we understand it, this text message was well capable of being understood by the jury as referring to the stolen black Holden Commodore that bore Pontiac badges. The phone itself contained, among other data, photographs of that car and messages from Barden’s Facebook account that indicated that Barden, an associate of McElroy, had a ‘pontiac hot v8’ that he was trying to sell.
[16]It will be recalled that (a) the 701 number was registered in the name of Ms Ruthven, who was McElroy’s partner at the time, and with whom McElroy had resided in Melton; (b) on 25 July 2015 at 5:25 pm, some four hours after the armed robbery, the 701 number received a text message from the 403 number, which was registered in the name of a business of which Ms Ruthven was apparently an owner or manager; (c) the 403 number was saved as a contact under the name ‘My Sxc Girl’ in the mobile phone containing the 701 number; and (d) Mr Walsh gave evidence that, a month or so after the armed robbery, Ms Ruthven was on the receiving end of a telephone call by Mr Walsh to the 403 number.

Thirdly, despite Mr Johnstone’s failure to notice from his vantage point any tattoos or piercings on the front seat passenger in the gold-coloured car, it was open to the jury to be satisfied beyond reasonable doubt that the front seat passenger was McElroy. Mr Johnstone’s description of McElroy as a ‘gaunt, very pale’ man with ‘blond, peroxided hair’ plainly accords with the description of McElroy given by the owner of the Werribee Stock Feed and the photographs of McElroy before and shortly after the date of the offending.

Fourthly, Mr Johnstone’s failure to observe any piercings is hardly surprising: it would have been within the common knowledge of the jury that piercings, such as studs, are detachable. This is reinforced by the fact that the photograph of McElroy asleep, taken the day after the offending and found later on the mobile phone containing the 701 number, does not show any piercings on McElroy at all. Furthermore, on 27 July 2015, the owner of the Werribee Stock Feed did not describe McElroy as having any piercings.

Fifthly, it cannot be said that the jury must have entertained a reasonable doubt as to McElroy’s guilt in the light of Mr Johnstone’s failure to observe any tattoos on the front seat passenger, in particular the tattoo on the right hand side of the front seat passenger’s neck. So to contend is to place undue emphasis on a single piece of evidence among evidence that otherwise forms an extremely powerful circumstantial case. As the High Court made clear in R v Hillier,[17] in dealing with a circumstantial case, individual pieces of evidence should not be viewed in isolation. In evaluating the strength of the Crown case, the whole of the evidence must be considered. On this issue we would only add that the failure to observe any tattoos may be explicable by the fact that, on Mr Johnstone’s evidence, McElroy had his mouth wide open and ‘was sort of looking a little bit towards the right’ — towards Mr Johnstone — thereby affecting Mr Johnstone’s view of any neck tattoo.
[17](2007) 228 CLR 618.

As mentioned above, this was an extremely powerful circumstantial case. The unknown third offender was observed to be skinny and gaunt with ‘really blonde’ or ‘peroxided hair’. He was an associate of Wallace and Barden. He had access to a mobile phone number registered in the name of McElroy’s partner. Before the offending, text messages giving directions to Melton (where McElroy lived) and indicating that the user of the phone was ‘[j]ust leaving Melton now’ were sent from that number. A few hours after the offending, a text message from that number was sent to another number registered in the name of a business of which McElroy’s partner was apparently an owner or manager. That mobile phone number was also saved as a contact under the name ‘My Sxc Girl’. The text message referred to a stolen car a few hours after the armed robbery. The mobile phone from which that text message was sent contained photographs of the stolen car that was the subject of the armed robbery. It also contained Facebook messages that revealed an attempt to sell that car. The unknown third offender was also observed to be in the very same gold-coloured car in which McElroy’s birth certificate and photograph were later found by police, two days after the armed robbery. In all of the circumstances, it would be a remarkable coincidence if the unknown third offender was someone other than McElroy.

When the various pieces of circumstantial evidence are considered as a whole, it was clearly open to the jury to be satisfied beyond reasonable doubt that McElroy was one of the offenders who committed the armed robbery. The complaint that the verdict is unsafe or unsatisfactory cannot be sustained.

Conclusion: McElroy

We would refuse McElroy leave to appeal against conviction.

B. Conviction: Wallace

As indicated above, the issue that is the subject of Wallace’s application for leave to appeal against conviction, broadly speaking, is the lawfulness of the seizure of the Aziz phone and the admissibility of certain evidence obtained during a search of the data on that phone. In order to place this issue into context, it is necessary first to describe the circumstances of the seizure and some events that followed.

Circumstances of the seizure and subsequent events

It will be recalled that, on 30 July 2015, police in Bendigo attended the address of Ms Aziz for the purpose of arresting Wallace in relation to an unrelated matter. At trial, two police officers, Detective Sergeant Jason Poulton and Detective Sergeant Colin Grenfell, gave evidence with respect to the circumstances of the seizure of the Aziz phone. The informant, Detective Senior Constable Andrew Heazlewood, also gave evidence.

Mr Poulton was one of the police officers who had attended Ms Aziz’s home. He was the second supervising officer present, along with Mr Grenfell. The police had not obtained a warrant; they purported to enter and search the premises pursuant to s 459A of the Crimes Act 1958.[18] In the event, Wallace was not at the premises. Ms Aziz and another occupant of the house were arrested in relation to a number of outstanding warrants.
[18]Section 459A of the Crimes Act 1958 relevantly provides: ‘(1) A police officer may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he — (a) believes on reasonable grounds — (i) to have committed in Victoria a serious indictable offence; (ii) to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or (iii) to be escaping from legal custody; or (b) finds committing a serious indictable offence—enter and search any place where the police officer on reasonable grounds believes him to be. (2) In order to enter a place pursuant to subsection (1), a police officer may, if it is necessary to do so, use reasonable force.’

Mr Poulton said that, while searching the premises, he saw a message appear on a mobile phone that was on the kitchen bench. Mr Poulton observed that the message came from a number that was saved under the name ‘Wallace’. At this time, he did not know where Ms Aziz was. He notified Mr Grenfell, who then seized the phone.

Mr Grenfell gave evidence that the purpose of attending the address of Ms Aziz was to arrest Wallace in relation to an alleged shooting earlier that day, but he was aware that Ms Aziz had seven outstanding warrants. He had information that Ms Aziz was an associate of Wallace. Ms Aziz was ultimately charged.

Mr Grenfell said that Mr Poulton had drawn the Aziz phone to his attention and that he (Mr Grenfell) seized that phone. When asked why he seized that phone, Mr Grenfell responded:

Because of the messages from Wallace. So, um, one thing I’ve learnt over these years is, um, mobile phones are a valuable, um, evidence. I’d found, um, what I thought were drug offences, property offences, and evidence that she was in contact with, ah, Wallace. Wallace had been nominated as the offender in the shooting earlier in the morning, and I also found property from a burglary, ah, in – in particular, ah, cheques that were made out to Wallace for large sums of money were in her bedroom, and that was from a burglary at Maldon, so it was – it was a burglary, it was a shooting, it was drug offences, it was stolen, um – possibly stolen gold-detecting machines, and it would’ve been, um – I wouldn’t have been doing my job if I didn’t take that phone.

Mr Grenfell also said that he had seized the Aziz phone and other property, including stolen goods, drugs and paraphernalia, ‘under common law’ and that he believed at the time that he ‘had a clear power to take all the property and the phone at the time’. Mr Grenfell agreed that he had seized the phone primarily to further the investigation of Wallace in relation to the alleged shooting, and that he was aware that Wallace was a suspect in a carjacking in Melbourne. He said that he had later given authority to two other police officers, Detective Senior Constable Samuel Miller and the informant, Mr Heazlewood, to download the contents of the Aziz phone.

Mr Grenfell gave evidence that, as a matter of police practice, it is assumed that a phone will contain evidentiary material that would justify inspecting or downloading the content of the phone. The following exchange between the trial judge and Mr Grenfell took place:

Q:If you arrest somebody in the street for example, and they’ve got a phone on them, and you suspect them of drug activity, it might be trafficking, or – – –?
A:Yes.

Q: – – – almost any offending conduct?
A: Yes.
Q:Would you regard it as being open to you, to inspect the content of that phone without any more information capable of leading to reasonable grounds for suspicion that the phone would contain evidentiary material?
AYes. I would – I would view that phone, if I found them in possession of other evidence.

The informant, Mr Heazlewood, gave evidence that he came on duty at 10:30 pm on the day of the seizure. He said that he searched the data on the Aziz phone while it was in the Bendigo CIU muster room. Earlier that evening, the contents of the Aziz phone had been downloaded by Mr Miller using an analysis tool called ACESO. Mr Heazlewood said that he believed that that phone ‘most likely would contain evidence … in relation to Wallace’. He also said that ACESO did not recover all the information from a phone and that he wanted to check whether there was any information of value, which needed to be recorded photographically, in relation to the alleged shooting in the Bendigo area.

Mr Heazlewood gave evidence that he did not think that the Aziz phone was pin-locked when he looked at it. He said that he opened a web browser, which showed the open Facebook account of Wallace. The Facebook page had not been opened through an application on the phone. Mr Heazlewood said that he searched various applications on the Aziz phone, such as photograph, video and other communication applications, for any sort of information that might help in his investigation of Wallace in relation to the alleged shooting. He took a number of photographs of Wallace’s conversations over Facebook with other people, including messages to and from an account in the name of ‘Bec Gibson’. He said that he had not asked Ms Aziz for permission to access her Facebook account or to peruse her phone.

Mr Heazlewood also gave evidence that he sent some of the photographs, in particular the photographs of the conversations between Wallace and Ms Gibson, to Mr Walsh in Melbourne. He said that he did so because he thought that those conversations related to Mr Walsh’s investigation, but he could not recall the circumstances of his sending those photographs.

The mobile phone evidence with respect to Wallace

Some of the contents of the mobile phone records in relation to the 701 number are summarised above.[19] The following information relates to communications between the 701 number and the 369 number, which was registered in the name of Ms Aziz, who, it will be recalled, is an associate of Wallace:
[19]See [42] above.

(i) On 25 July 2015 between 12:11 am and 12:06 pm, before the armed robbery, numerous text messages were exchanged between the 701 number and the 369 number.

(j) On 25 July 2015 from 2:00 pm onwards, more text messages were exchanged between the 701 number and the 369 number.

(k) As mentioned above, on 25 July 2015 at 2:44 pm, approximately one hour after the armed robbery, a text message that stated ‘Do u know anyone that will buy a ve pontiac g8’ was sent from the 701 number to the 369 number (Ms Aziz).

(l) As mentioned above, on 25 July 2015 at 3:48 pm, a text message that stated ‘Hey its wallace he wants half bag and 3 grand i didn’t hear him say that soz its a nice car ill send ya pic’s [sic]’ was sent from the 701 number to an unknown recipient.

Some photographs of the contents of the Aziz phone were also tendered in evidence. Those photographs show Facebook conversations between Wallace’s account and an account in the name of ‘Bec Gibson’, including the following messages:

(m) On 26 July 2015, Ms Gibson sent to Wallace a message which stated: ‘That car is 1 of 500 made ya fool. Been on the TV all day..lol..’.

(n) On 28 July 2015, the following exchange took place, beginning with a response to the message sent by Ms Gibson on 26 July 2015:

Time

Sender

Recipient

Message

3:17 am

Wallace

Ms Gibson

Fuk r u serious

10:32 am

Ms Gibson

Wallace

Lol… Are you?

1:33 pm

Wallace

Ms Gibson

It was a big bad mistake that I will never forget

1:34 pm

Ms Gibson

Wallace

Im on Was it you that did it? Lol.. it [sic] did u swap? Your [sic] a trippa. I said stay Out of trouble lol

5:22 pm

Wallace

Ms Gibson

I didn’t do it but put it this way I seen it

At trial, Wallace made a written admission that he had been the author and recipient of the above Facebook messages. He had done so after the trial judge ruled on the admissibility of the evidence constituted by these messages. The trial judge’s ruling is examined below.

The application to exclude evidence and the trial judge’s ruling

At trial, McElroy and Wallace made an application to exclude the evidence of the Facebook messages that were found on the Aziz phone.

On 3 March 2017, the trial judge ruled that the seizure of the Aziz phone and the subsequent search of the data on that phone was lawful and that, even if the seizure and search were unlawful, the evidence of the Facebook messages on the Aziz phone should nevertheless be admitted pursuant to s 138 of the Evidence Act 2008 (‘the Act’).

The trial judge considered that the police were entitled to enter Ms Aziz’s premises, having reasonably believed that Wallace may be found on the premises, and having entered the premises pursuant to their common law powers. He cited Ghani v Jones[20] in this regard. The trial judge observed that the principles expressed by Lord Denning MR in that case had been followed in Australia for many years, but noted the decision of Heerey J in Challenge Plastics Pty Ltd v The Collector of Customs[21] as an exception.
[20][1970] 1 QB 693.
[21](1993) 42 FCR 397, 406–7.

The trial judge set out what he considered to be the principle in Ghani v Jones that applied to the present case:

The principle derived from Ghani v Jones which seems to me to apply, is the proposition that where police officers enter a person’s house to arrest a person lawfully for a serious offence, they are entitled to take any goods which they find in that person’s possession or in the person’s house which they reasonably believe to be material evidence in relation to the crime for which that person is arrested or for which they enter.

Turning to the case before him, the trial judge said that the basis for the seizure of the Aziz phone was that police reasonably believed that phone to be capable of providing material evidence in relation to the crime for which they entered Ms Aziz’s premises, being the shooting earlier that day that was alleged to have been committed by Wallace. The trial judge added that the police may have also been entitled to seize the Aziz phone on the basis that they reasonably suspected that it may provide evidence of offending by Ms Aziz, but he considered that the Aziz phone was seized on the first basis described above; Ms Aziz’s arrest was incidental to the purpose of the entry into the premises, that purpose being to arrest Wallace and to further the investigation against him.

Having described the circumstances of the seizure, the trial judge said that he was inclined to follow Ghani v Jones. He considered that the principle extracted above applied in the present case, and added that Mr Grenfell relied upon that principle in directing the seizure of the Aziz phone. He concluded that the seizure was lawful.

The trial judge summarised the evidence of Mr Heazlewood and concluded that the search of the data on the Aziz phone was also lawful. He remarked in passing that he had not been shown any authority for the proposition that the police should have obtained some further warrant to search the contents of the Aziz phone or any authority that prevents police from using that phone to access material within it.[22] In the final analysis, the trial judge did not consider there to be any ‘restriction on police who have lawfully seized a mobile phone searching what is on the phone, or what is accessible from the phone.’ He mentioned the dearth of authority in Victoria and the absence of legislation on this issue.
[22]He mentioned the decision of Henry J in R v Jaudzems (2014) 239 A Crim R 266 as a possible exception, but said that the relevant issue in that case, which involved the admissibility of the contents of a Blackberry seized by police in a search, had not been determined.

The trial judge said that some indication of the law in Victoria could be found in ss 465AAA and 465AA of the Crimes Act, which, in broad terms, concern the access of data on, among other things, a computer or computer network following the seizure of a computer or data storage device. He noted that neither of those provisions applied in the present case: ‘the phone was not apparently password-protected and the Facebook account … was open to anyone who was accessing the phone.’

Finally, the trial judge held that the evidence of the Facebook messages on the Aziz phone should be admitted pursuant to s 138 of the Act. He addressed each of the elements in s 138(3).

As to (a), the probative value of the evidence, the trial judge said that the probative value of the evidence was substantial and that it was open to the jury to conclude that the messages between Wallace and Ms Gibson amounted to admissions by Wallace of his participation in the armed robbery.

As to (b), the importance of the evidence in the proceeding, the trial judge said that, despite its circumstantial nature, the evidence was such that it ‘could not be regarded as anything other than important’.

As to (c), the nature of the relevant offence and the nature of the subject matter of the proceeding, the trial judge considered the offending conduct to be ‘of a very serious criminal kind’, which weighed in favour of admitting the evidence.

As to (d), the gravity of the impropriety or contravention, the trial judge said that the unlawful or improper seizure of property is a serious contravention of the law that tends to militate in favour of the exclusion of the relevant evidence.

As to (e), whether the impropriety or contravention was deliberate or reckless, the trial judge considered that any impropriety or contravention in the present case was neither deliberate nor reckless. He reached this conclusion based on the evidence given by Mr Heazlewood and Mr Grenfell who, the trial judge said, ‘were entitled to assume that the principles set out in Ghani v Jones were applicable and that they were applying those principles correctly in the circumstances.’ He said the same with respect to the conduct of Mr Heazlewood in using the phone to access Wallace’s Facebook account, and accepted Mr Heazlewood’s evidence that that conduct ‘was within his common law powers’.

As to (f), whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (‘ICCPR’),[23] the trial judge said:

Whether the impropriety or convention was contrary to or consistent with the right of a person by [the International Covenant on Civil and Political Rights], well that clearly, I think, is not of great consequence in this case. It clearly is in contravention of substantial rights of the individuals concerned in this case, and therefore that, along with the reference I have already made to the gravity of the impropriety (d) would militate in favour of excluding the evidence.

[23]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

As to (g), whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention, the trial judge said that there was no basis for any disciplinary action or likelihood of any civil action arising from any impropriety.

As to (h), the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law, the trial judge said that it would have been extremely difficult to obtain the evidence of the Facebook messages without any impropriety or contravention on the part of the police. He continued:

There would not have been any basis for seeking the evidence from Facebook. It would have been pure speculation without the knowledge of the nature of the communications to which I have referred …

The trial judge also referred to a request for mutual assistance made some 18 months earlier by the police to the United States in order to obtain information from Facebook through the execution of warrants by the FBI. The trial judge said that ‘it would have been difficult if not impossible’ to have obtained the requested material through mutual assistance and that the authorities in the United States were yet to accede to the request.

The trial judge concluded:

The balancing exercise, in my opinion, comes down firmly in favour of the admission of the evidence, and even if I had been satisfied that the evidence was unlawfully or improperly obtained, I would exercise my discretion in favour of the admission of the evidence.
I think I have already indicated that I regard the evidence as being prima facie admissible as having probative value, and therefore passing the test set out in s 55 of the Evidence Act. I am satisfied that the content of the communications amount to admissions within the Evidence Act and that thereof the hearsay rule does not apply. It is a matter for the jury to determine whether they rely upon those communications as being communications involving Mr Wallace, and particular whether they amount to admissions as alleged by the prosecution.
The circumstantial evidence as to the location of the phone, the association between the phone and Jasmine Aziz, the association between the accused and Jasmine Aziz at the relevant time, the call or text message communication made by the accused to the mobile phone whilst police were in attendance at 60 Lockwood Road on 30 July, all are bits of circumstantial evidence which, along with the other evidence in the case, suggest that the communications set out or obtained from the activity of Mr Heazlewood involved Mr Wallace and amounted to admissions made by Mr Wallace.

On 9 March 2017, Wallace made a written admission that he had been the author and recipient of the Facebook messages involving Ms Gibson.

Proposed grounds of appeal

Wallace seeks leave to appeal against conviction on two grounds:

1.The [trial judge] erred in applying the principle in Ghani v Jones [1969] 3 All ER 1700, in particular [h]is Honour erred by:
(a)[r]uling the seizure of the Aziz phone at 60 Lockwood Road, Kangaroo Flat on 30 July 2015 as lawful;
(b)[i]n the alternative, ruling that if he was wrong on that basis, that the balance of considerations in s 138 Evidence Act 2008 would favour admitting the evidence.

2.The [trial judge] erred in ruling the examination by police of the Aziz phone lawful, in particular [h]is Honour erred by:
(a)[r]uling the search by [Mr] Heazlewood, which extended beyond the ‘stored contents’ of the phone, as lawful;
(b)[r]uling that there is no restriction on police who have lawfully seized a mobile phone examining what is accessible by the phone.

The first proposed ground of appeal

By his first proposed ground of appeal, Wallace contended that the trial judge erred in applying the principle in Ghani v Jones when he ruled the seizure of the Aziz phone to be lawful. Wallace also argued that the trial judge erred in admitting the evidence of the Facebook messages between himself and Ms Gibson under s 138 of the Act.

Ghani v Jones

In order to understand the various arguments made on behalf of Wallace, it will be helpful first to consider Ghani v Jones and the different circumstances in which property may be seized that were considered by the English Court of Appeal in that case.

At issue in Ghani v Jones was whether the police were justified in seizing certain property. In the course of investigating a woman’s disappearance, police officers searched the house of the woman’s father-in-law without a warrant. At their request, he handed to them several documents, including the passports of himself, his wife and his daughter. The plaintiffs later asked for the passports to be returned, but the police refused to do so. The police believed that the woman had been murdered and that the seized documents were of ‘evidential value’. The plaintiffs brought a proceeding against one of the police officers seeking the delivery up of the documents, an injunction restraining their detention and damages for detinue. Talbot J ordered that the documents be returned. The police officer appealed.

Lord Denning MR (with whom Edmund Davies LJ and Sir Gordon Willmer agreed) identified two distinct situations in which a seizure may take place:

(o) where the seizure of the property (i) took place in circumstances where the police entered a person’s house by virtue of a warrant; or (ii) was incidental to the arrest of a person, with or without a warrant; and

(p) where the property was seized in circumstances in which no person was being arrested and no warrant existed.[24]

[24]In Siddique v Martin (2016) 51 VR 564, this Court referred to the two situations described in Ghani v Jones and framed them, on the one hand, as seizure pursuant to a warrant and, on the other, seizure without a warrant.

In considering the first situation, Lord Denning MR said:

I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary …[25]

As is plain, the lawfulness of the seizure depends upon it being established that the police reasonably believed the property seized to be material evidence in relation to the crime for which the person (in whose possession or house the property was found) is arrested or for which they enter. In the present case, it was not suggested that the police reasonably believed that the Aziz phone was material evidence in relation to the crime for which Ms Aziz was arrested.

[25]Ghani v Jones [1970] 1 QB 693, 706 (emphasis added).

In considering the second situation, Lord Denning MR discussed two cases in which police acted against one or more persons without a warrant and without having arrested them.[26] Having done so, he said:

What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed — so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime … or is the instrument by which the crime was committed … or is material evidence to prove the commission of the crime …
Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.[27]

[26]Ibid 706–8, discussing Elias v Pasmore [1934] 2 KB 164 and R v Waterfield [1964] 1 QB 164.

[27]Ghani v Jones [1970] 1 QB 693, 708–9 (emphasis in original).

While he considered that the police may have had reasonable grounds for believing that the woman had been murdered, Lord Denning MR said that the police had not shown reasonable grounds for believing that the seized documents were material evidence to prove the commission of the murder.[28] Nor, said Lord Denning MR, had the police shown reasonable grounds for believing that the plaintiffs were in any way implicated in, or an accessory to, a crime.[29] The appeal was dismissed.
[28]Ibid 709.
[29]Ibid.

Submissions

In his written submissions, Wallace did not distinguish between the two situations described above.[30] His written submissions, however, can be seen to be addressed to the first situation. He contended that the principle in Ghani v Jones applies to a seizure of evidence that is reasonably believed to relate to the crime for which the individual concerned is arrested, and not any other person. Wallace observed that, in the present case, the police seized the Aziz phone principally for the purpose of investigating the alleged shooting involving Wallace, and not for the purpose of investigating the owner of the phone, Ms Aziz, who was arrested for unrelated matters. Wallace said that, in order to justify the seizure of the Aziz phone, the police must have had reasonable grounds for believing that Ms Aziz, and not anyone else, had committed a serious crime. He pointed out that, once seized, the Aziz phone was accessed by Mr Heazlewood (investigating matters unrelated to Ms Aziz’s arrest) to find information about Wallace. Wallace said that this action constituted a new search.
[30]In his written submissions, Wallace briefly alluded to the course of the voir dire before the trial judge. The transcript shows that defence counsel for Wallace raised the possibility that Ghani v Jones might not be good law in Victoria. The prosecutor submitted that the status of Ghani v Jones was ‘somewhat unclear in Victoria’ given that the Court of Appeal in Siddique v Martin had not been ‘willing to affirm its correctness’. However, the written submissions before this Court did not challenge the correctness of Ghani v Jones.

Wallace’s written submissions did not address the possibility that the seizure of the Aziz phone was lawful under the second situation described in Ghani v Jones.

As set out above,[31] in his ruling in the present case, the trial judge relied upon the passage in Ghani v Jones that dealt with police entry into a person’s house with a warrant or in order to arrest a person lawfully, with or without a warrant, for a serious offence. In this situation, so the trial judge held, the police had a common law power to seize any goods that they reasonably believe to be material evidence in relation to the crime for which the person is arrested or for which they entered.
[31]See [80] above.

During oral argument before this Court, counsel for Wallace departed from the written submissions that had been filed on his behalf and advanced two separate arguments.[32] He contended that the principle in Ghani v Jones upon which the trial judge relied was inapplicable in the circumstances of the case. In effect, he said that the principles set out in the first situation described in Ghani v Jones were not germane to the circumstances of the present case in so far as (a) there had been no warrant; and (b) Wallace had not been arrested such that the seizure could be said to be incidental to his arrest. Next, he said that the principles that were germane were those set out in the second situation described in Ghani v Jones.[33] Counsel conceded that the seizure would have been lawful if the five requirements described in the second situation in Ghani v Jones had been satisfied. However, he contended that the principles relevant to the second situation described in Ghani v Jones are not good law in Victoria. He said that those requirements were inconsistent with the decisions of the Full Court of this Court in Field v Sullivan[34] and Levine v O’Keefe,[35] which, he contended, make clear that the common law power of seizure is incidental to, and part of, a person’s arrest — whether the arrest was made with or without a warrant.[36]
[32]Counsel appearing for Wallace had not prepared the written submissions. On the morning of the hearing before this Court, counsel provided a written outline of oral argument.
[33]Counsel said: ‘At most, this is the strongest the law could be for the Crown in this case, if the five requirements in Ghani v Jones at p 708–9 were satisfied then they could seize the phone.’
[34][1923] VLR 70. In that case, the police, without a warrant, entered the house owned by the plaintiff and her husband and seized goods which they reasonably believed to have been stolen and, shortly thereafter, arrested the plaintiff and her husband on the grounds that they were in possession of stolen goods. The Full Court decided that the goods were lawfully seized as being incidental to an arrest, notwithstanding that the arrest took place shortly after the seizure.
[35][1930] VLR 70. In that case, O’Keefe, a policeman, had seized and detained goods belonging to Levine. No arrest had been made. Levine brought proceedings in conversion and detinue. In his defence, O’Keefe pleaded that he was authorised to seize the goods as he was investigating a crime and that the seizure was proper and necessary in the performance of his duties as a member of the police force. Cussen J struck out that part of O’Keefe’s defence. His decision was upheld by the Full Court on the basis that ‘the person in possession of the goods was not arrested’ and that ‘[t]here was not even any charge against him at the time of the seizure of the goods’: at 72 (Mann J).
[36]Recently, this Court observed that no doubt had been cast over this line of authority over the last ninety-odd years: Reeves v The Queen [2017] VSCA 291 [29] (Santamaria and Kaye JJA and T Forrest AJA).

The respondent’s written submissions asserted, without more, that Ghani v Jones is good law in Victoria. In his oral submissions, senior counsel for the respondent applied the principles set out in the second situation in Ghani v Jones to the circumstances of the present case. He noted that, at trial, the Crown had relied upon the five requirements without making any submission as to whether those requirements were good law in Victoria.[37]
[37]It will be recalled that the trial judge purported to apply the principles germane to the first situation identified by Lord Denning MR in Ghani v Jones [1970] QB 693 that governed the seizure of property in circumstances where (a) the police entered a person’s house by virtue of a warrant; or (b) the seizure was incidental to the arrest of a person, with or without a warrant. This explains why the trial judge did not consider the principles germane to the second situation in Ghani v Jones — namely, where property is seized in the absence of a warrant or an arrest.

Was the seizure lawful?

For now, assuming that Ghani v Jones is good law in Victoria, we accept the submission that the trial judge relied upon the wrong principle set out in that case. Relying upon the taxonomy identified above,[38] he applied the principle germane to the first situation in circumstances where he was confronted with the second situation. True it is that a person (Ms Aziz), being the person in whose possession and house the Aziz phone was found, had been arrested. But, to use the language of Lord Denning MR, there is no evidence that the police reasonably believed that the Aziz phone was material evidence in relation to any crimes for which Ms Aziz was arrested. Further, the police had not obtained a warrant before entering Ms Aziz’s home. On these bases, the principle upon which the trial judge relied had no application in the present case.
[38]See [101] above.

The present application for leave to appeal is not the occasion to consider whether, in determining the lawfulness of a seizure of goods in the absence of a valid warrant or an arrest, the five requirements in Ghani v Jones, which apply to the second situation identified by Lord Denning MR, should be applied in Victoria.[39] Neither Wallace’s proposed grounds of appeal nor his written submissions called into question the correctness of the test for the seizure of goods without a warrant. Although it was raised in oral submissions on behalf of Wallace, it was not addressed by senior counsel for the respondent. Given that no notice had been given of the contention, this is hardly surprising. For now, it suffices to make three points.
[39]The law in respect of the first situation (arrest with a warrant) appears uncontroversial. The only controversy relates to the second situation (seizure in the absence of a warrant or an arrest).

First, the five requirements in Ghani v Jones have been the subject of consideration in several Australian cases and, indeed, have been applied by some courts.[40] Other courts have expressly declined to follow those requirements, preferring instead the approach in Levine v O’Keefe.[41] During oral argument before this Court, counsel for Wallace drew our attention to criticisms of Ghani v Jones expressed in two cases but did not press the matter any further.[42]
[40]See, eg, Marinko v Rames (Unreported, Supreme Court of New South Wales, Hope J, 13 August 1971); Dixon v Stephens (Unreported, Supreme Court of New South Wales, Street J, 2 September 1971); GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635; Rowell v Larter (1986) 6 NSWLR 21; Bartlett v Weir (1994) 72 A Crim R 511; Tye v Commissioner of Police (1995) 84 A Crim R 147; Greer v Commissioner of New South Wales Police (2002) 128 A Crim R 586; Wright v Queensland Police Service [2002] 2 Qd R 667; Goldberg v Brown (2003) 38 MVR 389; R v Elomar (No 11) [2009] NSWSC 385.
[41]See Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397, 406–7 (Heerey J); Laurens v Willers (2002) 131 A Crim R 281, 292–3 (Heenan J). See also L H Leigh, ‘Recent Development in the Law of Search and Seizure’ (1970) 33 Modern Law Review 268, 278; M I Aronson, J B Hunter and M S Weinberg, Litigation: Evidence & Procedure (Butterworths, 4th ed, 1988) 429; Lawbook, The Laws of Australia (at 1 November 2013) 11 Criminal Procedure, ‘1 Criminal Investigation’ [11.1.2170].
[42]Counsel referred to Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397, 406–7 (Heerey J); Laurens v Willers (2002) 131 A Crim R 281, 292–3 (Heenan J).

Secondly, the five requirements were mentioned by this Court in Siddique v Martin.[43] In that case, this Court considered the interpretation of s 78(6) of the Magistrates’ Court Act 1989, which empowered a court to direct that any article or thing seized under a search warrant be returned to its owner. In that case, the police had seized not only goods identified in the warrant but other goods as well. The Crown submitted that the magistrate had no jurisdiction under s 78(6) as the goods in question, though seized lawfully, had not been seized under the warrant.
[43](2016) 51 VR 564.

In the course of the judgment, the Court discussed what has been called the ‘chance discovery’ principle. It referred to the distinction between ‘the extent of the powers of search conferred expressly by a search warrant and the extent of the powers conferred by the “common law extension of search on a search warrant”’.[44] It referred to a line of authority in which it had been held that, where entry into private premises was justified by a search warrant, ‘the common law extends the reach of a warrant to include a power of seizure of evidence, found during the search authorised by the warrant, relating to serious offences not mentioned in it’.[45] The Court said that the chance discovery principle made permissible the seizure of goods extraneous to the warrant ‘if they were “adventitiously found in the course of the authorised search”’.[46]
[44]Ibid 577 [31].
[45]Ibid 576 [27], quoting R v Elomar (No 11) [2009] NSWSC 385 [54] (Whealy J).
[46]Siddique v Martin (2016) 51 VR 564, 577 [32].

In Siddique v Martin, the Crown had sought to justify the seizure of goods not mentioned in the warrant by reference to the second situation described in Ghani v Jones. While it was prepared to assume that Ghani v Jones, in so far as it dealt with seizure without a warrant, was good law in Victoria, the Court said:

[T]he fact that the common law may operate independently of a search warrant in some situations does not mean that, where a search warrant has in fact been issued and is being executed, the power of the executing officers to seize items other than those named or described in the warrant arises independently of the warrant. To the contrary, that power is to be characterised and delimited by reference to the warrant.[47]

[47]Ibid 578 [34].

Thirdly, an inquiry into whether property has been lawfully seized is quite separate from the determination of whether evidence arising from, or in relation to, that property should be admitted in a trial. The question of admissibility of evidence that has been improperly or unlawfully seized should be addressed by reference to s 138 of the Act. That provision, which is set out below, directs attention to matters including the probative value of the evidence, the importance of the evidence in the proceeding and whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention. It is plain that Parliament has viewed these matters as relevant to the admissibility of improperly or illegally obtained evidence and, by necessary implication, not to the lawfulness of the seizure of the property in respect of which evidence has been or is sought to be adduced.

If the seizure was unlawful, was the evidence admissible?

As explained above, it is not necessary that we resolve the issue whether the five requirements in Ghani v Jones are good law in Victoria. We understand Siddique v Martin to have left this question open for future consideration. In the present case, we will assume, favourably to Wallace, that the seizure of the Aziz phone was improper or unlawful.

The fact that evidence was improperly or unlawfully obtained does not render that evidence inadmissible.[48] Section 138 of the Act, which is entitled ‘Exclusion of improperly or illegally obtained evidence’, relevantly provides:
[48]See generally Haddara v The Queen (2014) 43 VR 53.

(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b)in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

In our opinion, we consider that the desirability of admitting the evidence of the Facebook messages exchanged between Wallace and Ms Gibson outweighs the undesirability of admitting evidence that has been obtained in the way in which that evidence was obtained. We will address the eight matters in s 138(3) in turn.

As to (a), the evidence had significant probative value. The Facebook messages, exchanged within days of the commission of the armed robbery, make reference to a car. In one of those messages, Wallace seems to show surprise (‘Fuk r u serious’) at learning that the car ‘is 1 of 500 made’ and that something had ‘been on the TV all day’. He later said that ‘[i]t was a big bad mistake that I will never forget’. The statement ‘I didn’t do it but put it this way I seen it’ in no way diminishes the probative value of the evidence, given that three offenders were involved in the armed robbery on 25 July 2015. It was open to the jury to conclude, on the basis of that evidence, that Wallace was one of the three offenders who had committed the armed robbery.

During oral argument before this Court, counsel for Wallace conceded that there was a dearth of evidence with respect to this issue.[60] However, counsel argued that there was sufficient evidence to show that Mr Heazlewood had accessed data from the Aziz phone using an internet web browser and that there was a method of control over that data that was circumvented by the use of the Aziz phone in a way that could not be circumvented if a police computer had been used.
[60]The response from senior counsel for the respondent was, understandably, one of confusion. He also could not identify any clear evidentiary basis upon which the trial judge could have ruled on the lawfulness of the search of the data on the Aziz phone.

It may be accepted, based on the evidence given by Mr Heazlewood,[61] that the Facebook messages exchanged between Wallace and Ms Gibson were accessed using an internet web browser. However, this discrete piece of evidence leaves unanswered many, if not all, of the questions raised above. It does not form a sufficient factual foundation from which to rule on the lawfulness of the search. On that footing, it is surprising that the trial judge found himself in a position so to rule in the absence of relevant evidence of a technical nature.
[61]See [72] above.

The lack of such evidence also makes it difficult to consider meaningfully whether the observations in Riley v California have any application in the present case. The technical issues in that case, some of which are relevant to the present case, were canvassed in written briefs filed with the Supreme Court.[62] The submissions in the present case, both at trial and before this Court, presupposed the existence of relevant evidence of a technical nature that would inform the determination of the lawfulness of the search. However, no such evidence was led at trial.
[62]See, eg, Riley v California, 573 US __, __ (2014) (slip op at 21), citing Brief for Electronic Privacy Information Center in No 13–132, 12–14, 20; Brief for the United States in No 13–212, 43–4.

In the result, we consider that there was insufficient evidence to support the trial judge’s ruling on the lawfulness of the search of the data on the Aziz phone. It follows that the trial judge erred in ruling that the search was lawful. It also follows that we are not prepared to consider whether the search was indeed lawful. We will, however, assume that the search of the Aziz phone was improper or unlawful for the purposes of applying s 138 of the Act.

It remains to consider whether the evidence of the Facebook messages exchanged between Wallace and Ms Gibson should be admitted under s 138 of the Act, having regard to the posited impropriety or contravention of the search of the data on the Aziz phone.

Section 138(3)(a)–(c) direct attention primarily to the evidence that was sought to be admitted and the nature of the relevant offence. Our consideration of these matters with respect to the seizure of the Aziz phone applies with equal force here.

As to (d), we consider the gravity of the posited contravention to be low. The evidence was that Mr Heazlewood was one of two police officers who had been instructed by Mr Grenfell to download the contents of the Aziz phone following its seizure. Mr Heazlewood said that he searched the contents of the Aziz phone after coming on duty at 10:30 pm on the day of the seizure. In these circumstances, Mr Heazlewood, acting under instructions, could hardly be expected to be in a position to ask Ms Aziz for her consent to searching the data on the Aziz phone. Moreover, there is no evidence or basis from which to infer that the search of the Aziz phone was a symptom of some practice of the wider police force following the seizure of mobile phones.

As to (e), we consider that there is no basis in the evidence to suggest that the posited impropriety or contravention on the part of Mr Heazlewood at the time of the search was deliberate or reckless.

As to (f), it is reasonably arguable that the search of the data on the Aziz phone amounted to an interference with the privacy of Ms Aziz and Wallace, whose Facebook account was found on the Aziz phone, such that the search was inconsistent with the right stipulated in art 17 of the ICCPR. Article 17 provides:

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2.Everyone has the right to the protection of the law against such interference or attacks.

In his ruling, the trial judge accepted that the posited impropriety or contravention was ‘in contravention of substantial rights of the individuals concerned in this case’. In expressing this conclusion, he did not refer explicitly to the ICCPR. However, he said that this consideration weighed in favour of excluding the evidence.

In his written submissions, Wallace contended that the trial judge gave insufficient weight to this matter. In particular, Wallace drew attention to art 17 of the ICCPR and contended that the search of the Aziz phone to find information and obtain photographic evidence in relation to him (Wallace) was inconsistent with the right stipulated in that article. He added that it was a breach of his privacy as well as the privacy of Ms Aziz and Ms Gibson, as a participant in the conversation on Facebook. Wallace said that these matters weighed in favour of excluding the evidence of the Facebook messages.

It seems to us that Wallace’s complaint in respect of the trial judge’s consideration of s 138(3)(f) is directed to form rather than substance. The trial judge accepted that the conduct of the police contravened ‘substantial rights of the individuals concerned in this case’. More importantly, he accepted that the contravention weighed against the exclusion of the evidence.

As to (g), we are not aware of any current or anticipated proceeding in relation to the posited impropriety or contravention. Again, in the absence of argument, we are prepared to proceed on the basis that the absence of any current or anticipated proceeding is a factor telling in favour of exclusion.[63]
[63]See [137] above.

As to (h), we accept, as we did with respect to the seizure of the Aziz phone, that there would have been some difficulty in obtaining the evidence of the Facebook messages exchanged between Wallace and Ms Gibson without the posited impropriety or contravention.

Once again, balancing all the matters in s 138(3), we agree with the trial judge’s conclusion that the evidence of the Facebook messages exchanged between Wallace and Ms Gibson should have been admitted. It bears emphasis that we are impressed with the significant probative value of that evidence, the fact that it forms part of a strong circumstantial case against Wallace and the serious nature of the armed robbery. The only substantial difference between our consideration of s 138 in the context of the seizure and our consideration of that provision in the context of the search was the likely inconsistency between the search of the contents of the Aziz phone and the right stipulated in art 17 of the ICCPR. There is no doubt that this is a consideration that weighs against the admissibility of the evidence of the Facebook messages. However, we do not consider it, by itself or in combination with any other countervailing consideration, to be sufficient to prevent the admission of that evidence.

We would refuse Wallace leave to appeal against conviction on the second proposed ground.

Conclusion: Wallace

Wallace’s application for leave to appeal against conviction should be granted, but the appeal should be dismissed.

C. Sentence: Wallace

We now turn to consider Wallace’s application for leave to appeal against sentence. As mentioned above, Wallace was sentenced to seven years’ imprisonment with a non-parole period of four years and nine months. He seeks leave to appeal against sentence on the following ground:

The learned judge erred in the application of the principle of parity, in particular His Honour erred by imposing a sentence which, despite the differences in criminal history, totality, and prospects of rehabilitation between [Wallace] and co-offender McElroy, involved an excessive and unjustified disparity of both the head sentence and non-parole period between [Wallace’s] sentence and that of co-offender McElroy.

Sentencing remarks

The trial judge noted that armed robbery is a serious offence that carries a maximum term of imprisonment of 25 years.[64] He said that each of the offenders had admitted prior court appearances and convictions.[65]
[64]DPP v McElroy (Unreported, County Court of Victoria, Judge Maidment, 3 May 2017) [2], [7] (‘Sentencing remarks’).
[65]Ibid [2].

The trial judge recited parts of a victim impact statement made by Ms McLeod following the armed robbery.[66] The trial judge said that the armed robbery was committed on a ‘soft target’.[67] He described the gravity of the offending in the following terms:

The conduct of all three of you was an outrageous assault upon the rights of another human being to go about their normal daily activities without fear of being threatened with the prospect of death or serious injury at the hands of a group of thugs armed with a firearm. The purpose of using the firearm in this offence was to instil such fear that it would overcome any prospect of resistance from your vulnerable, selected target, namely a woman on her own.
Such conduct as this offending impacts the whole community. It has the capacity to send a proverbial shiver down the spine of all drivers of motor cars. This offending was particularly audacious. It was committed in broad daylight in a public place in the presence of other members of the public. Offending of this kind is calculated to give rise to general community concern. It is a very serious offence of its kind. It deserves a high level of judicial denunciation and requires a sentence of sufficient severity to deter others from engaging in similar conduct.[68]

[66]Ibid [7]–[9].

[67]Ibid [12].

[68]Ibid [10]–[11].

The trial judge turned to the personal circumstances of McElroy. McElroy was 36 years old and single with no dependent children. He did well at school, despite being diagnosed with ADHD, and had held down good jobs for a significant period of time. He was an assistant store manager for five years and subsequently worked as a store manager.[69]
[69]Ibid [14].

The trial judge noted that McElroy had been an occasional drug user following his mother’s death. He said that the drug use escalated and, at the time of his arrest for the present offending, he had been using ice daily. The trial judge said that he had no doubt that McElroy’s ice use had led to a significant deterioration in his capacity for work and contributed to his criminal history, ‘which commenced relatively later’ than those of his co-offenders.[70]
[70]Ibid [15].

The trial judge said that McElroy had a series of court appearances and convictions dating back to February 2012. One of those offences involved the possession of a long-arm firearm, which apparently comprised the proceeds of a burglary.[71] McElroy had been in custody since August 2015 and, since that period, had already served a term of 12 months’ imprisonment.[72] The trial judge said that he was asked to take into account the principle of totality in this respect.[73] He took into account the fact that McElroy had also been held in the Melbourne Remand Centre for some 12 months, during which he spent a significant period of time in his cell.[74]
[71]Ibid [16].
[72]Ibid [21].
[73]Ibid.
[74]Ibid [22].

The trial judge also said that, following the commission of the offence involving possession of the firearm, McElroy had been assaulted and was hospitalised for a number of days. He sustained facial injuries that have resulted in joint dysfunction and impacted on his quality of life.[75] The trial judge was told that McElroy was unlikely to have surgery during his period of incarceration and that there was a possibility that McElroy suffered an acquired brain injury during that assault.[76] The trial judge said that that injury, in particular, would make McElroy’s time of imprisonment more difficult than would otherwise be the case.[77]
[75]Ibid [17].
[76]Ibid [18].
[77]Ibid [19].

The trial judge observed that McElroy had been diagnosed with post-traumatic stress disorder and mood and anxiety disorders. The trial judge considered that these conditions would make imprisonment significantly harder on McElroy than for a person without those conditions. He said that he proposed to reduce the sentence that he would have otherwise imposed on McElroy but for these conditions.[78]
[78]Ibid [20].

The trial judge said the following with respect to McElroy’s criminal history:

Your prior convictions are nothing to be proud of, obviously, and go back some four years but they are not for offending of the scale of this offence. Indeed they are in the main for dishonesty and driving offences and drug possession and trafficking. Offences that are commonly seen in persons with significant substance abuse issues in particular, chronic drug users. You have no prior convictions for violence or robbery and that is, to some extent, to be contrasted with the records of your co-offenders.[79]

[79]Ibid [23].

The trial judge referred to a number of references that were tendered on behalf of McElroy.[80] The references spoke of his positive qualities and his strong work record. The trial judge said that McElroy’s work record suggested that, if he could overcome his substance abuse problems, his prospects of rehabilitation would become good. The trial judge remarked: ‘It seems to me that there is certainly enough good in you to have some reasonable optimism about your future.’[81]
[80]Ibid [25].
[81]Ibid.

The trial judge also noted that McElroy had been drug-free in the preceding 20 months. He said that McElroy had engaged well with treatment and rehabilitation programs. He added that it was to McElroy’s credit that he had taken those opportunities, which were set out in documents that had been tendered on the plea. The trial judge also took note of McElroy’s volunteering role in the Melbourne Remand Centre. He described McElroy’s prospects of rehabilitation as guarded but ‘perhaps reasonable’.[82]
[82]Ibid [24].

The trial judge turned to the personal circumstances of Wallace. He observed that Wallace had an unfortunate and difficult upbringing. He had used drugs for a long time and had used ice heavily in the lead-up to his arrest for the present offending.[83] The trial judge described Wallace’s life as chaotic and referred to a history of domestic violence between Wallace and Ms Davey. Wallace has four children from his relationship with Ms Davey.[84]
[83]Ibid [26].
[84]Ibid [27].

The trial judge summarised Wallace’s criminal history as follows:

You have a criminal record going back to 2006. Again, fairly typical of a person who has had, up to that point, a fairly chaotic life and who is a substance abuser. Some of your convictions have, of course, involved violence and threat of violence. Many of them involve possession, use of drugs of various kinds but none of them involve offending of a scale of this offending conduct.[85]

[85]Ibid [28].

The trial judge made extensive reference to Wallace’s history of illicit drug use but noted that Wallace had been drug-free during his period of 636 days on remand.[86] The trial judge said that Wallace had suffered from post-traumatic stress disorder, which, according to the trial judge, will have the capacity to weigh more heavily on Wallace than on a person who did not have that condition. He said that Wallace was entitled to some moderation of sentence arising from that condition and also from a substantial risk of his condition deteriorating further during his term of imprisonment.[87]
[86]Ibid [30], [32].
[87]Ibid [31].

The trial judge described Wallace’s prospects of rehabilitation as guarded and dependent upon his willingness and capacity to deal with his drug use.[88] The trial judge noted that Wallace had embarked on endeavouring to maintain relationships with his children.[89]
[88]Ibid [33].
[89]Ibid [34].

Submissions

Wallace pointed out that the Crown’s case was that all three offenders were complicit in the armed robbery and that it could not prove who had possession of the weapon. He contended that the moral culpability of all three offenders was therefore equal. He argued that the differences in criminal history, totality, and prospects of rehabilitation between himself and McElroy were not so significant as to justify a 15-month difference in the head sentence and an 11-month difference in the non-parole period. He said that these differences are ‘so manifestly disparate’ as to engender a justifiable sense of grievance.

The respondent contended that the difference between the sentence imposed on Wallace and that imposed on McElroy was reasonably open. It relied primarily upon the differences in criminal history and the dissimilarity in prospects of rehabilitation of each offender.

Analysis

At the heart of the principle of parity is the notion of equal justice, which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.[90]
[90]Postiglione v The Queen (1997) 189 CLR 295, 300–2 (Dawson and Gaudron JJ). See also R v Hildebrandt (2008) 187 A Crim R 42, 47 [42] (Dodds-Streeton JA, with whom Ashley JA and Lasry AJA agreed).

In Tran v The Queen,[91] Ashley JA, with whom Osborn and Whelan JJA agreed, stated two principles that an appeal court must carefully bear in mind when an applicant complains about an impermissible want of parity:

First, the Court is not placed in the position of the sentencing judge. The question to be answered is whether it is satisfied, on objective consideration of the entire circumstances of the offenders and the offending, that the applicant is entitled to have a justifiable sense of grievance. This requires the Court to be persuaded that the sentence passed upon the applicant was not reasonably open.[92] There is no single correct sentence. That is so whether complaint is made of manifest excess or of want of parity.
Second, sentencing involves a synthesis of the entire circumstances of the offending and the offender. Where more than one offender is being sentenced, just as where a single offender is to be sentenced, sentencing is not a mechanical exercise in which circumstances are to be weighed with a pretence of arithmetical certainty.[93] Indeed, where more than one offender is being sentenced, and despite parity considerations requiring a judge to compare the circumstances of the offending and the offenders, disparate circumstances may lend themselves even less to such an exercise. An attempt to demonstrate that the sentence imposed on one of the offenders was not reasonably open, by resort to a minute examination of the individual circumstances of the offending and the offenders, runs counter to the concept of instinctive synthesis.[94]

[91][2017] VSCA 346.

[92]DPP (Cth) v KMD (2015) 254 A Crim R 244, 269 [109] (Maxwell P, Weinberg and Beach JJA).

[93]In DPP v Dalgleish (a Pseudonym) (2017) 349 ALR 37, 39–40 [4]–[6], Kiefel CJ, Bell and Keane JJ re-stated and illumined this long-established principle, one among very many instances being the observations of Crockett J in R vNagy [1992] 1 VR 637, 638–9, cited by Nathan J in R v Mundy (1994) 76 A Crim R 92, 97.

[94]Tran v The Queen [2017] VSCA 346 [23]–[24].

In order to succeed on this ground, Wallace must establish that the disparity between his or her sentence and that of McElroy was manifestly excessive and that it engenders a justifiable sense of grievance and gives the appearance that justice has not been done.[95]
[95]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ).

There are three reasons why Wallace’s contentions in support of this proposed ground of appeal should be rejected. First, the difference between the criminal history of each offender is considerable. McElroy’s criminal history began in 2012; Wallace’s criminal history began in 2006. McElroy had no prior convictions for offences involving violence; some of Wallace’s convictions involved violence and the threat of violence. The trial judge was alert to each of these facts.[96] In our opinion, the difference in extent and content of each offender’s criminal history alone justified the disparity in sentence.
[96]Sentencing remarks [16], [23], [28].

Secondly, on a fair reading of the reasons for sentence, the trial judge considered that McElroy had better prospects of rehabilitation than Wallace. The trial judge described McElroy’s prospects as guarded but ‘perhaps reasonable’ and with the potential to become ‘good’ if he could overcome his substance abuse problems. On the other hand, he considered Wallace’s prospects of rehabilitation to be guarded and dependent upon his willingness and capacity to deal with his drug use.[97] This finding has not been impeached.
[97]Ibid [33].

Thirdly, McElroy, unlike Wallace, had served a 12-month term of imprisonment while awaiting trial in the present case.[98] The trial judge was correct to have regard to this factor as relevant to the principle of totality when passing sentence on McElroy.[99] It provides yet another basis for the disparity in sentence.
[98]See [174] above.
[99]Sentencing remarks [21]. See Wheldon v The Queen (2011) 31 VR 297, 302 [32] (Tate JA, with whom Nettle and Neave JJA agreed).

Conclusion

We would refuse Wallace leave to appeal against sentence.

Time	Sender	Recipient	Message
5:25 pm	The 403 number	The 701 number	Is it stolen? How much
5:26 pm	The 701 number	The 403 number	Yeah and half bag and 3 grand
5:33 pm	The 403 number	The 701 number	Oh ok umm I’ll ask around babe when u coming home
6:18 pm	The 701 number	The 403 number	Im on I’m on me way home now okay

[2018] VSCA 126

21 May 2018