R v Leroy and R v Graham - [2000] NSWCCA 302

CITATION: R v Leroy and R v Graham [2000] NSWCCA 302 revised - 22/08/2000

FILE NUMBER(S): CCA 60244/99; 60312/99

HEARING DATE(S): 17 April 2000

JUDGMENT DATE:
17 August 2000

PARTIES :

Matthew John Leroy (Appellant)
Colin Kenneth Graham (Appellant)
Crown (Respondent)

JUDGMENT OF: Stein JA at 1; Dunford J at 2; Simpson J at 55

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0360; 97/31/0331

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : IH McClintock (Appellant - Leroy)
RP Greenhill (Appellant - Graham)
LMB Lamprati (Respondent - Crown)

SOLICITORS: TA Murphy (Appellant - Leroy)
Higgins & Higgins (Appellant - Graham)
SE O'Connor (Respondent - Crown)

CATCHWORDS: CRIMINAL LAW - affray - maliciously inflict GBH - assault occassioning ABH - appeal against convictions - verdict - whether unreasonable or cannot be supported - EVIDENCE - admissibility of identification evidence - no identification parade held - highly probative value outweighed prejudicial effect - CRIMINAL LAW - appeal against sentence - whether manifestly excessive - special circumstances - whether appropriate to impose cumulative sentences - relationship between minimum and additional terms

LEGISLATION CITED: Evidence Act 1995, s 114, 136, 137
Sentencing Act 1995, s 5

CASES CITED:
R v Blick [2000] NSWCCA 61
R v Clout (1995) 41 NSWLR 312
R v (Kerrie) Clarke (1997) 97 A Crim R 414,
R v Moody (CCA - 1 April 1997)
R v Adam [1999] 47 NSWLR 267
R v GAC (CCA - 1 April 1997)
Pearce v The Queen [1998] HCA 57

DECISION: Appeals against convictions dismissed. Leave to appeal against sentences granted; appeal dismissed.

- 1 -
IN THE COURT OF
CRIMINAL APPEAL
60244/99
60312/99

STEIN JA
DUNFORD J
SIMPSON J

Thursday, 17 AUGUST 2000

R v Matthew John LEROY
R v Colin Kenneth GRAHAM
JUDGMENT
1 STEIN JA: I agree with Dunford J. 2 DUNFORD J: These appeals, which were heard together, arise out of events at the Forster-Tuncurry Memorial Services Club (“the Club”) in the early hours of Sunday 23 February 1997. 3 The appellants were members of the Cambridge Park Rugby League Football team that was in Forster for a weekend football competition. Following the games played on Saturday 22 February 1997, a number of players from various teams including members of the Cambridge Park team attended the Club. 4 At the end of the evening, as a group of players said to be from the Cambridge Park team were leaving the Club there was a degree of rowdy behaviour and Mr Warren Woods, an employee of the Club, approached the group who were then located in the foyer with a view to subduing the rowdy members. He asked them to leave whereupon he was punched by a number of people, eventually falling to the ground. Whilst on the ground he was kicked several times, as a result of which he lost an eye and suffered other injuries. A fracas developed during which other staff members came to the assistance of Mr Woods, and other persons, including Mr…

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

Case: [2000] NSWCCA 302
Decision Date: 17 August 2000

CaseChat Overview and Summary

The appeals before the court involved two defendants, Leroy and Graham, who had been convicted of various criminal offences including affray, maliciously inflicting grievous bodily harm, and assault occasioning actual bodily harm. The convictions were appealed on the basis that the verdicts were unreasonable or could not be supported by the evidence. Leroy also appealed against the severity of his sentence, arguing it was manifestly excessive, while Graham contested the appropriateness of cumulative sentencing.

The legal issues before the court included the admissibility of identification evidence where no identification parade was held and the weight to be given to such evidence in light of its probative value and potential prejudicial effect. The court had to determine whether the identification evidence was sufficiently reliable to support the verdicts. Additionally, the court considered whether Leroy's sentence was manifestly excessive, taking into account special circumstances and the appropriateness of cumulative sentences in relation to multiple offences.

The court found that the identification evidence, despite the absence of a formal identification parade, was highly probative and its value outweighed any prejudicial effect. The court held that the identification evidence was reliable enough to support the verdicts. Regarding the sentence, the court concluded that while the sentence was severe, it was not manifestly excessive given the nature and circumstances of the offences. The court also determined that it was appropriate to impose cumulative sentences for the multiple offences committed by Leroy and Graham.

The appeals were dismissed, and the convictions and sentences were upheld. The court found no error in the trial judge's handling of the identification evidence or in the imposition of the sentences. The defendants' appeals were unsuccessful, and the original verdicts and sentences were confirmed.

Orders