R v Jamieson - [2003] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 70 of 2002

THE QUEEN
	v.
ALFRED JOHN JAMIESON

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JUDGES:	ORMISTON, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2003
DATE OF JUDGMENT:	19 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 224

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CRIMINAL LAW – Conviction – Theft – Handling stolen goods – Whether police search of applicant’s property illegal – Proper authorisation for the police search was never obtained – Whether admission of evidence from search was unfair in the circumstances – Public policy considerations – Bunning v Cross (1978) 141 C.L.R. 54 – No intentional abuse of power or gross negligence – Whether trial judge erred in failing to discharge the jury – R v Miller (2000) 112 A. Crim. R. 323 – Accomplice warning given in respect of evidence given by witness – s. 464H Crimes Act – Edwards direction appropriate in the circumstances – Application dismissed.

CRIMINAL LAW – Sentence – Manifest excess – Applicant with 113 prior convictions related to offences of dishonesty – Whether too much weight was placed on the applicant’s prior criminal history – Whether sentencing judge erred in imposing a large portion of sentences to be served cumulatively – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for the DPP
For the Applicant	Mr M.F. Desmond	Power and Bennett

ORMISTON, J.A.:

I agree, for the reasons stated by Vincent, J.A., that these applications should be dismissed.

BATT, J.A.:

I concur in the judgment of Vincent, J.A.

VINCENT, J.A.:

The applicant was presented before the County Court on 21 February 2002 on four counts of theft, contrary to s.74 Crimes Act 1958 (counts 1, 4, 5 and 7)[1] and five counts of handling stolen goods, contrary to s.88 Crimes Act 1958 (counts 2, 3, 6, 8 and 9)[2]. He entered a plea of not guilty on each count.
[1]This offence is punishable by a maximum sentence of imprisonment for 10 years.
[2]This offence is punishable by a maximum sentence of imprisonment for 15 years.

On 28 February 2002, the jury empanelled in the trial returned verdicts of guilty on counts 2, 3, 6, 8 and 9 and a verdict of not guilty on count 4.[3]
[3]The applicant was acquitted on the direction of the trial judge on count 1. Counts 5 and 7 were alternatives to 6 and 8 respectively.

The applicant admitted 113 prior convictions from 19 court appearances between 1974 and 1998. For the most part they related to offences of dishonesty, and included larceny, theft, burglary, obtaining property by deception, the making of a false statement in support of an application for Commonwealth Benefits, being unlawfully in possession of goods reasonably suspected of having been stolen and housebreaking and stealing. Of particular relevance in the present context were 30 charges of handling stolen goods that involved five court appearances between 1987 and 1998.

After hearing a plea in mitigation of penalty, on 14 March 2002, the…

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 Jamieson

Details

AGLC: R v Jamieson [2003] VSCA 224
Case: [2003] VSCA 224
Decision Date: 19 December 2003

CaseChat Overview and Summary

The applicant, Jamieson, appealed against his conviction and sentence in relation to charges of theft and handling stolen goods. The appeal was heard by the court, which was required to consider whether the police search of the applicant's property was conducted lawfully and whether the evidence obtained from the search should have been excluded. The court also needed to determine if the trial judge erred in not discharging the jury and whether the sentence imposed was manifestly excessive.

The court held that the police search of the applicant's property was conducted without proper authorisation, and therefore, the search was unlawful. However, the court found that the admission of evidence from the search was not unfair in the circumstances, as there was no intentional abuse of power or gross negligence on the part of the police. The court also held that the trial judge did not err in failing to discharge the jury, as there was no basis for doing so, and the accomplice warning given in respect of the evidence was appropriate. The Edwards direction was deemed suitable for the circumstances of the case.

The court dismissed the applicant's appeal against his conviction and sentence. The court found that the sentencing judge did not place too much weight on the applicant's prior criminal history, and that imposing a large portion of the sentences to be served cumulatively was not an error. The court held that the sentence imposed was not manifestly excessive, given the applicant's extensive criminal history and the nature of the offences committed.

The court made no orders in relation to the appeal.

Orders