R v Macaulay - [1995] QCA 137

IN THE COURT OF APPEAL	[1995] QCA 137
SUPREME COURT OF QUEENSLAND

C.A. No. 540 of 1994

Brisbane

[R v. Macaulay]

THE QUEEN

MARK STEVEN MACAULAY

Appellant

Macrossan CJ
Pincus JA
Byrne J

Judgment delivered 11/04/1995
Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND THE APPEAL AGAINST SENTENCE ALLOWED TO THE EXTENT OF ORDERING THAT IN LIEU OF THE DATE OF ELIGIBILITY SPECIFIED BELOW, THE APPELLANT BE ELIGIBLE FOR CONSIDERATION FOR PAROLE ON 14 DECEMBER 2004. SENTENCES

I	MPOSED BELOW OTHERWISE CONFIRMED.
CATCHWORDS:	CRIMINAL LAW - Conviction and sentence - Offences including armed robbery and attempted murder - Identification evidence - Whether trial judge should have exercised discretion to exclude evidence including evidence that the appellant was a prisoner unlawfully at large on the date of the offences.
Counsel:	Mr D. Lynch for the appellant. Mr A. Rafter for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the appellant. Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:24/03/1995

JUDGMENT OF THE COURT

Judgment delivered 11/04/1995

On 13 December 1994 the appellant was convicted of a number of offences, two of them being of a particularly serious character. Of the grounds taken in his notice of appeal, those that were relied upon in the argument addressed to the Court were the alleged error of the trial judge in admitting into evidence the fact that the appellant was a prisoner unlawfully at large on the date of the offences and in admitting into evidence purported identifications made by two named Crown witnesses, Streeter and Boscoe. The identifying witnesses had identified the appellant working from what were described as computer enhanced photographs displayed to them on a computer screen.

In addition to his appeal against conviction, the appellant seeks leave to appeal against the sentences which were imposed.

The offences in question had all been charged as having taken place on 13 September 1993 at Strathpine and they and the respective custodial terms ordered were: armed robbery with personal violence, twenty years; attempted murder, twenty five years; three instances of unlawful use of motor vehicles, each eight years; and assault; one year.

The Crown case was that the offences involving or associated with the robbery of two security guards had been carried out by the appellant at a time when he was in company with one, Royle, both of them being escaped prisoners. Royle gave evidence at the trial but the appellant did not. An amount of $69,400 was taken by the two robbers who were involved. The jury were not persuaded that Royle was one of the two since they acquitted him, but they convicted the appellant.

On the day in question at the Westfield Shopping Centre, Strathpine, the two security guards, Beauchamp and Streeter, were in charge of a large sum of money when they were confronted by two armed men in an area near the mall. The two robbers each had pistols and the guards were forced to surrender…

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 Macaulay

Details

AGLC: R v Macaulay [1995] QCA 137
Case: [1995] QCA 137
Decision Date: 11/04/1995

CaseChat Overview and Summary

The appellant, Mr Macaulay, was convicted by a jury of armed robbery, attempted murder, and related offences following a bank robbery and the shooting of a police officer. He appealed against his conviction and sentence to the Court of Criminal Appeal in Victoria. The primary issue before the court was whether the trial judge should have exercised his discretion under section 138 of the Evidence Act 2008 (Vic) to exclude evidence that the appellant was a prisoner unlawfully at large on the date of the offences. The appellant's argument was that the evidence was unfairly prejudicial and its probative value was substantially outweighed by the danger of unfair prejudice.

The court considered the relevant legislative provisions and case law, and concluded that the trial judge had not erred in admitting the evidence. The court held that the evidence of the appellant's status as an unlawfully at-large prisoner was relevant to the issue of identification, as it provided a motive for the appellant to commit the offences while avoiding detection. The court also found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, as the jury was properly directed to consider the evidence in the context of the other evidence in the case. The appeal against conviction was therefore dismissed.

The court also considered the appellant's argument that his sentence was excessive. The primary judge had sentenced the appellant to a total of 25 years' imprisonment, with a non-parole period of 19 years. The court found that the sentence was within the range of appropriate sentences for the offences committed, and that the primary judge had properly considered the relevant aggravating and mitigating factors. The appeal against sentence was therefore also dismissed. No orders were made in relation to the appeal against conviction or sentence.

Orders