R v Campbell - [2007] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 110 of 2006
THE QUEEN	v
JASON WILLIAM CAMPBELL

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JUDGES:	NETTLE and ASHLEY JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2007
DATE OF JUDGMENT:	7 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 189

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CRIMINAL LAW – Armed robbery – Photo board identification – Adequacy of warnings and directions to jury – Whether special directions required as to photo board identification – Description of offender by witnesses – Whether directions required – Cross-examination of identifying witness by counsel for accused – Trial judge ruling that counsel must put to witness part of depositions relating to a separate, uncharged, robbery – Whether prejudicial to accused – Whether verdict unsafe and unsatisfactory.

CRIMINAL LAW – Sentencing – Accused’s guilty plea to second armed robbery – Both robberies committed after accused released on parole – Erroneous assumption by sentencing judge that previous sentence had not expired – Unnecessary order for cumulation – Sentencing Act 1991 s 16(1A)(d), (3B) – Applicant re-sentenced – Time spent in custody for previous offence following revocation of parole taken into account.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Rob Melasecca

NETTLE JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA and Kaye AJA and I agree with their Honours that the application for leave to appeal against conviction should be refused.

Viewed with the benefit of hindsight, it appears that the judge might profitably have given the jury more extensive or clearer directions as to the weaknesses inherent in the victim’s identification of the applicant from a photo-board and as to the effect of a conversation which the victim had with investigating police before she so identified the applicant. But, as Ashley JA and Kaye AJA explain in their joint reasons, there was nothing inherently problematic about the photo-board as such, and the judge did give the jury extensive Domican[1] directions (albeit without referring in terms to the shortcomings of photo-identification);[2] and, in the end, the judge did convey to the jury, with the weight of his authority, the need to consider the effect of the victim’s conversation with police before she identified the applicant.
[1]Domican v The Queen (1992) 173 CLR 555.
[2]cf. Alexander v The Queen (1981) 145 CLR 395, 409 (Stephen J, in diss.)

Were it not for the seniority and experience of counsel who represented the applicant at trial, one might perhaps still have had some doubt as to whether the judge’s charge was sufficient to bring home to the jury all of the risks which they needed to consider. But, given that defence counsel was very senior and greatly experienced, and that he did not take exception to what was said, I am persuaded that the directions were adequate in the circumstances in which they were given. Accordingly,…

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 Campbell

Details

AGLC: R v Campbell [2007] VSCA 189
Case: [2007] VSCA 189
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the case of R v Campbell, the appellant faced charges relating to armed robberies, with the dispute centering on the adequacy of the warnings and directions provided to the jury regarding photo board identifications, the need for additional directions concerning witness descriptions, and the impact of a ruling that required counsel for the accused to cross-examine a witness about a separate, uncharged robbery. The court also considered the sentencing process, particularly the error made by the sentencing judge in assuming that the previous sentence had not expired, leading to an unnecessary order for cumulation. The case was heard and determined by the High Court of Australia.

The primary legal issues the court had to decide were whether the warnings and directions given to the jury about the reliability of photo board identifications were adequate and whether additional directions were needed concerning witness descriptions of the offender. Furthermore, the court examined whether the ruling that required counsel for the accused to cross-examine a witness about an uncharged robbery was prejudicial and whether it rendered the verdict unsafe and unsatisfactory. The court also reviewed the sentencing process, focusing on the error in the sentencing judge’s assumption regarding the expiration of the previous sentence and the necessity of an order for cumulation.

The court found that the warnings and directions given to the jury about photo board identifications were adequate, and no additional directions were necessary regarding witness descriptions. The ruling that required counsel for the accused to cross-examine a witness about an uncharged robbery did not prejudice the accused, and thus the verdict was deemed safe and satisfactory. Regarding sentencing, the court determined that the error in the sentencing judge's assumption about the expiration of the previous sentence led to an unnecessary order for cumulation. The court re-sentenced the accused, taking into account the time spent in custody following the revocation of parole.

The final orders of the court included the re-sentencing of the appellant, taking into account the time spent in custody following the revocation of parole. The court also confirmed that the original verdict was safe and satisfactory, and no additional directions were necessary concerning witness descriptions or the cross-examination of the witness about the uncharged robbery.

Orders