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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Leigh McElroy v The Queen [2018] VSCA 126
Case
[2018] VSCA 126
Decision Date
CaseChat Overview and Summary
The respondent, McElroy, appealed against his conviction and sentence for armed robbery, with the Court of Appeal being the forum for this appeal. The primary issues before the court were whether the verdict was unreasonable or could not be supported by the evidence, particularly in light of the circumstantial nature of the case and the disputed identity of the offender. Additionally, the court had to consider the admissibility of evidence obtained from a mobile phone that was seized by the police without a warrant. The appeal against the sentence also sought to address whether the disparity between the sentences imposed on McElroy and his co-offender was manifestly excessive, breaching the principle of parity in sentencing.
The court began by examining the sufficiency of the evidence to support the conviction. It was noted that the case was circumstantial, with identity being a significant issue. The court considered whether the jury must have entertained a reasonable doubt about the applicant's guilt, given the evidence of physical appearance presented. The court then turned to the admissibility of the mobile phone evidence, applying the criteria established in Ghani v Jones and the provisions of the Evidence Act 2008, particularly section 138. The court concluded that the desirability of admitting the evidence outweighed the undesirability of its acquisition, allowing the evidence to be considered. Regarding the sentence, the court found that the disparity between McElroy's sentence and that of his co-offender did not reach the threshold of being manifestly excessive, thus upholding the sentencing decision.
The Court of Appeal dismissed the appeal against both the conviction and sentence. The reasoning was that the evidence, including the mobile phone evidence, was sufficient to support the conviction and that the sentencing disparity did not breach the principle of parity. Consequently, McElroy's appeal was unsuccessful on both grounds, and his conviction and sentence were upheld.