R v Arden - [2004] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 239 of 2003

THE QUEEN
	v.
WALLACE AMOS ARDEN

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JUDGES:	WARREN, C.J., BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 131

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CRIMINAL LAW – Armed robbery – Recklessly causing injury - Identification evidence – Admissibility - Security video of passengers in lift – Whether video properly admitted – Adequacy of directions – Crimes Act 1958. s.75A(1), s.18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W. Morgan-Payler, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M. Croucher	Victorian Aboriginal Legal Service

WARREN, C.J.:

I have had the benefit of reading in draft form the reasons for judgment of Eames, J.A. I agree with the reasons stated by his Honour and that the application should be dismissed.

BATT, J.A.:

To say that one was attacked by (that is, one’s attackers were) three persons with whom one had travelled in the lift at a certain time is, to my mind, to identify the attackers. It is no different in principle from stating that one’s attackers were three persons living at a stated address or named persons X, Y and Z. It identifies the attackers with persons objectively ascertainable. However, it is not the usual type of identification evidence that has troubled courts and, as Eames, J.A. demonstrates, identification was not a significant issue in this case. Accordingly, a warning as to the evidence was not required.

I agree in the conclusion of Eames, J.A. that the application must be dismissed and, subject to the foregoing, I agree in his Honour’s reasons for judgment.

EAMES, J.A.:

This is an application for leave to appeal against conviction. The applicant was presented in the County Court jointly with one Joseph Lovett on a multi-count presentment. After a two day trial[1] the jury found him guilty as follows: count 1, armed robbery of Ken Fitzgerald; count 3, recklessly causing injury to Ken Fitzgerald; count 4, armed robbery of Jason Malcolm; and on an alternative verdict on count 6, namely, recklessly causing injury to Jason Malcolm. The applicant was found not guilty on one count of intentionally causing injury to Fitzgerald, on one count of intentionally causing serious injury to Malcolm and on one count of recklessly causing serious injury to Malcolm. The co-accused, Lovett, was found guilty on two counts of armed robbery, one count of recklessly causing injury, and a further count of intentionally causing injury, as an alternative to a count of recklessly causing serious injury[2]. On 20 August 2003 a judge of the County Court sentenced the applicant to a total effective sentence of 3 years and 6 months’ imprisonment and fixed a non-parole period of 18 months. No application for leave to appeal against sentence has been made.
[1]This was the fourth jury which had been empanelled. In what counsel at trial described as having been a tortured history, three previous juries…

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 R v Arden

Details

AGLC: R v Arden [2004] VSCA 131
Case: [2004] VSCA 131
Decision Date: 5 August 2004

CaseChat Overview and Summary

The case of R v Arden involved a dispute between the Crown and the defendant, Arden, regarding charges of armed robbery and recklessly causing injury. The matter was heard in the Supreme Court of Victoria. The crux of the dispute lay in the admissibility of a security video capturing passengers in a lift, which was to be used as identification evidence against the defendant. The Crown sought to rely on this video as part of their evidence, while the defence contested its admissibility and questioned the adequacy of the trial judge’s directions to the jury regarding the footage.

The court had to determine whether the security video was properly admitted as evidence and whether the trial judge’s directions to the jury were sufficient to ensure the evidence was properly considered. Specifically, the court needed to examine whether the video met the criteria under section 75A(1) of the Crimes Act 1958 and whether the trial judge adequately directed the jury on the weight to be given to this evidence in accordance with section 18 of the same Act. Additionally, the court had to consider the reliability and relevance of the video footage in establishing the defendant's identity and involvement in the crimes charged.

The court found that the security video was properly admitted, as it satisfied the requirements of section 75A(1) of the Crimes Act 1958. The court also held that the trial judge provided adequate directions to the jury regarding the video evidence. The judge's directions were deemed sufficient to ensure the jury understood the limitations and weight of the video as evidence. Consequently, the court upheld the conviction, finding the evidence sufficiently reliable and relevant to identify the defendant as one of the perpetrators.

Orders