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Paul Ward v The Queen

Paul Ward v The Queen

Case [2018] VSCA 80 28 March 2018

Appeal

Admissibility of Evidence

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0058

PAUL WARD	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, SANTAMARIA and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2018
DATE OF JUDGMENT:	28 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 80
JUDGMENT APPEALED FROM:	DPP v Ward (Unreported, County Court of Victoria, Judge Saccardo, 14 December 2016) (Conviction); [2017] VCC 226 (Judge Saccardo) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Armed robbery, attempted armed robbery and reckless conduct endangering life – Identity of offender in issue – Where witness gave evidence of location of mobile phone allegedly used by appellant during offending – Where evidence given by reference to statistical probability of phone being in particular location at particular time – Whether trial judge erred in admitting evidence – Whether substantial miscarriage of justice – Appeal dismissed.

EVIDENCE – Admissibility – Opinion evidence – Where technical expert gave evidence of probability of mobile phone being in particular geographic area at particular time – Where probability expressed as percentage – Whether witness had ‘specialised knowledge’ to give evidence expressed as percentage – Evidence Act 2008 ss 76(1), 79(1).

CRIMINAL LAW – Appeal – Sentence – Armed robbery, attempted armed robbery and reckless conduct endangering life – Offender sentenced to 10 years and 6 months’ imprisonment with non-parole period of 7 years and 6 months’ imprisonment – Whether orders for cumulation excessive – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood with Mr J Connolly	Papa Hughes Lawyers
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
SANTAMARIA JA
KYROU JA:

Introduction

The appellant was charged with offences on three separate indictments. For ease of reference, we will refer to the indictments by their last two digits, being 6.1, 6.2 and 6.3.

On indictment 6.1, the appellant pleaded guilty to one charge of theft of a BMW motor vehicle on 18 February 2015.

On indictment 6.2, the appellant was charged with four offences which were also alleged to have been committed on 18 February 2015. He pleaded not guilty to those charges and stood trial in the County Court. On 14 December 2016, the jury returned a verdict of guilty on one charge of attempted armed robbery, one charge of armed robbery and one charge of reckless conduct endangering life. The jury acquitted the appellant on one charge of attempted armed robbery.

On indictment 6.3, the appellant pleaded guilty to one charge of theft of a registration plate, one charge of theft of a Ford motor vehicle, one charge of burglary and one charge of theft of cold and flu tablets from a pharmacy. The offences were committed on 5 March 2015 and 7 March 2015.

On 10 March 2017, the appellant was sentenced to ten years and six months’ imprisonment. A non-parole period of seven years and six months was fixed.

On 29 August…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Paul Ward v The Queen

Details

AGLC: Paul Ward v The Queen [2018] VSCA 80
Case: [2018] VSCA 80
Decision Date: 28 March 2018

CaseChat Overview and Summary

Paul Ward was convicted of armed robbery, attempted armed robbery, and reckless conduct endangering life. He appealed against his conviction and sentence. The central issue in the appeal was the admissibility of evidence provided by a mobile phone expert regarding the location of the appellant's mobile phone at the time of the offence, which was crucial to establishing his identity as the offender. The appellant argued that the trial judge erred in admitting this evidence, which was expressed as a statistical probability, and that its admission led to a substantial miscarriage of justice.

The court considered whether the expert witness had the requisite specialised knowledge to provide an opinion expressed as a percentage. It was noted that the expert relied on data analysis and previous case law to determine the likelihood of the phone being in a specific location. The court found that the expert's evidence was properly admitted under sections 76(1) and 79(1) of the Evidence Act 2008, as it was relevant and not based on a prohibited opinion. The court also held that the admission of this evidence did not result in a substantial miscarriage of justice. Additionally, the court examined the sentence imposed on the appellant, finding that the 10 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months, was not manifestly excessive given the seriousness of the offences.

The appeal against the conviction was dismissed, and the refusal of leave to appeal the sentence was affirmed.

Orders