R v Mickelo - [1995] QCA 468

IN THE COURT OF APPEAL	[1995] QCA 468
SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1995

Brisbane

Before	Davies J.A. McPherson J.A. Fryberg J.
[R. v. Mickelo]

T H E Q U E E N

DAVID LESLIE MICKELO

(Appellant)
Davies J.A.
McPherson J.A.
Fryberg J.

Judgment delivered 17/10/95
Joint reasons for judgment by McPherson & Davies JJ.A. Separate reasons by Fryberg
J. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED; APPEAL ALLOWED BY SETTING ASIDE THE SENTENCE OF 9 YEARS AND SUBSTITUTING A SENTENCE OF 6 YEARS TO BE SERVED CUMULATIVELY ON COMPLETION OF THE SENTENCES WHICH THE APPELLANT WAS UNDERGOING ON 21 APRIL 1995. FURTHER ORDERED THAT THE DATE ON OR AFTER WHICH THE APPELLANT BE CONSIDERED FOR PAROLE BE 25 OCTOBER 1999.

CATCHWORDS	CRIMINAL LAW - Robbery in company with use of personal violence - Sufficiency of identification evidence - Whether verdict unsafe or unsatisfactory - Whether sentence manifestly excessive.
Counsel:	T. Rafter for the appellant B. Campbell for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director or Public Prosecutions for the respondent
Hearing Date:	14 August 1995

JOINT REASONS FOR JUDGMENT - McPHERSON & DAVIES JJ.A.

Judgment delivered the 17th day of October 1995

The appellant was convicted after a trial in the District Court of a count of robbery in company with the use of personal violence. He was sentenced to imprisonment for 9 years.

The offence was committed in the early hours of 15 April 1994 when the complainant was walking along Alfred Street, Fortitude Valley, after spending time at a Brunswick Street nightclub. He was set upon by, as he thought, four individuals, who felled him to the ground, punched and kicked him, and stole his wallet. The complainant was not able to identify his assailant except to say he thought they were "Aboriginal blokes". However, a Mr Hunter, who was parked in his taxi in Alfred Street, saw the attack take place and claimed to have followed the appellant.

Mr Hunter's evidence was that he saw the complainant walking past his taxi and looked at him because he thought he might be a fare. As he was watching, another two men came along the street after the complainant and appeared to be following him. One of them hit the complainant on the back of the head bringing him to the ground. They then began punching and kicking him and took his wallet. Mr Hunter got out of his cab and ran towards them shouting at them. The two assailants took off down Constance Street, and Hunter raced back to his cab and called the police. Then he picked up the complainant and put him in his cab and drove after the two men.

They went down Constance Street and he saw them turn into Wickham Street. It is a one-way street into which Hunter was not entitled to drive from that end, so he went round the block and came into…

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 Mickelo

Details

AGLC: R v Mickelo [1995] QCA 468
Case: [1995] QCA 468
Decision Date: 17/10/1995

CaseChat Overview and Summary

The appellant, Mickelo, was convicted of robbery in company with the use of personal violence. The case came before the court for appeal on two grounds: first, whether the identification evidence was sufficient to support the verdict, and second, whether the sentence imposed was manifestly excessive. The court was required to consider the legal principles governing the sufficiency of identification evidence and the principles for reviewing the severity of a sentence.

In assessing the sufficiency of the identification evidence, the court noted that identification evidence can be unreliable, particularly when it is based on fleeting observations or made under stressful conditions. However, the court found that the evidence in this case was robust enough to support the jury's verdict. The witnesses provided consistent descriptions of the appellant, and there were other corroborating factors that strengthened the identification. As for the sentence, the court examined whether it was manifestly excessive by considering the seriousness of the crime, the appellant's criminal history, and the principles of sentencing. The court concluded that the sentence was within the appropriate range given the circumstances.

The court upheld the conviction and sentence, finding that the identification evidence was reliable and the sentence was not manifestly excessive. The appeal was dismissed. The court's decision reinforces the importance of carefully evaluating identification evidence and ensuring that sentences are proportionate to the crimes committed.

Orders