R v Wilson; R v Eleche - [2014] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON; R v ELECHE
[2014] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
17 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE
Mr Eleche was convicted on four counts of aggravated robbery. Mr Wilson was convicted of aggravated robbery on the third and fourth of those counts. The appellants appeal their convictions on the basis that the Judge failed to identify the evidence relevant to each count and against each appellant. Mr Wilson further complains that the Judge failed to adequately warn the jury that if they rejected Mr Eleche’s alibi evidence, to the effect that he was in the company of Mr Wilson at the time of the third and fourth robberies, they could not reason from that rejection towards Mr Wilson’s guilt. Mr Eleche also appeals his sentence of 15 years imprisonment on the basis that it is manifestly excessive.
Held: dismissing the appeals against conviction (Vanstone and Kelly JJ agreeing).
The jury could not have failed to understand that the way in which the evidence of the searches should be used was to consider whether any of the items, found on the appellants or in the silver Commodore, connected either or both with one or more of the robberies (Kourakis CJ at [31]). Viewing the summing up as a whole, the appellants have failed to show that the way in which the Judge related the general directions to the evidence has resulted in a miscarriage of justice (Kourakis CJ at [33]).
The Judge carefully directed the jury to consider the case against each accused separately and had warned the jury that the rejection of Mr Eleche’s evidence did not support a positive finding against Mr Wilson (Kourakis CJ at [26]).
Held: dismissing Mr Eleche’s appeal against sentence (Vanstone and Kelly JJ agreeing).
The sentence is not manifestly excessive and there is nothing in the appellant’s personal circumstances which strongly counter the importance of general deterrence (Kourakis CJ at [36]). Furthermore, the appellant has not established that his imprisonment has contributed to any material deterioration or exacerbation of his illness (Kourakis CJ at [53]). As such, receipt of the further evidence tendered by Mr Eleche is refused.
Criminal Law Consolidation Act 1935 (SA) s 359, referred to.
R v Place (2002) 81 SASR 395, discussed.
R v Kididis (2012) 112 SASR…

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 Wilson; R v Eleche

Details

AGLC: R v Wilson; R v Eleche [2014] SASCFC 73
Case: [2014] SASCFC 73
Decision Date: 17 July 2014

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Vanstone and Kelly JJ, heard appeals from convictions for aggravated robbery. The appeals concerned Mr Wilson and Mr Eleche, who were convicted on multiple counts of aggravated robbery. Mr Eleche also appealed against the sentence imposed upon him.

The legal issues before the court included whether there had been a miscarriage of justice due to alleged misdirection or non-direction in the summing up, and whether fresh evidence tendered by Mr Eleche should be received on his appeal against sentence. The court was also required to consider whether Mr Eleche's sentence of 15 years for four counts of aggravated robbery was manifestly excessive, and whether the evidence supported the convictions.

The court found that the circumstantial evidence, including CCTV footage and items found in a hired vehicle associated with Mr Eleche, was substantial and supported the convictions. The court determined that the summing up, when considered as a whole, did not contain any misdirection or non-direction that would amount to a miscarriage of justice. Regarding Mr Eleche's appeal against sentence, the court found the sentence to be moderate for the offences committed. The fresh evidence tendered by Mr Eleche concerning his medical treatment in prison was refused, as it did not establish that his conditions had not been properly treated, with any difficulties being no more than ordinarily expected.

Consequently, the court dismissed Mr Wilson's appeal against conviction, and dismissed Mr Eleche's appeals against both his convictions and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Eleche has also appealed against the sentence of 15 years imposed by the Judge. First, he contends that the sentence was manifestly excessive. That ground is not made out. The sentence was a moderate one for four counts of aggravated robbery. Secondly, Mr Eleche has tendered further evidence as to the treatment he has received in prison for various medical conditions from which he suffers. The evidence fails to establish that Mr Eleche’s conditions have not properly been treated; the occasional difficulties he has experienced are no more than would ordinarily be expected when treating a person in custody. The evidence should not be received on the appeal against sentence and the appeal should be dismissed. The Evidence The Director of Public Prosecutions filed a summary of the evidence which sets out the substantial body of circumstantial evidence on which the prosecution relied. The respondents did not dispute that summary. For the purposes of this judgment it suffices to mention the salient items of evidence. The first count alleged the aggravated robbery of the Seaview Downs Deli on 15 October 2011 at 6.02 pm. The CCTV footage of the offender was not inconsistent with Mr Eleche’s appearance. The robber was armed with a red‑handled knife. A knife of that description was later found in a police search of a silver, Northern Territory registered, Holden Commodore which Mr Eleche had hired from Hertz on 13 October 2011 (the silver Commodore). In addition to stealing a quantity of $5, $10 and $20 notes the robber took a 50-pack of Holiday Reds, which was later also found in the silver Commodore. The CCTV footage showed the offender wearing a jacket with an emblem and one white and one blue stripe on the sleeve. The jacket worn by the offender is consistent in appearance with a Converse jacket found during the police search of the silver Commodore. The second count on which Mr Eleche was convicted was of the robbery of a Subway store at Findon on 20 October 2011. Again, a red-handled knife consistent with the knife found in the silver Commodore was used by the robber. An amount of $130 was taken. The appearance of the offender shown on the CCTV footage was not inconsistent with Mr Eleche’s appearance. Importantly, the CCTV footage showed the offender wearing a yellow cap with markings and an emblem just like a yellow baseball cap later found by police in the silver Commodore. The offender was also wearing light-coloured gloves, with gloves of a similar colour also found in the police search of the silver Commodore. The footage also shows the offender wearing a grey “Everlast” singlet, like one worn by Mr Eleche when he was arrested the very next day. A witness saw a man who, given the location and timing of the sighting, was likely to have been the robber of the Subway store, escape in a silver Commodore with Northern Territory licence plates. That man’s appearance was consistent with being Mr Eleche but, when shown a police photo identification folder containing a photograph of Mr Eleche, the witness identified another man.

Decision

Reasons for decision

I would refuse to receive the further evidence tendered by Mr Eleche. Conclusion I would dismiss Mr Wilson’s appeal against conviction. I would dismiss Mr Eleche’s appeals against his conviction and sentence. VANSTONE J: I agree that all three appeals should be dismissed. I agree with the reasons prepared by the Chief Justice. KELLY J: I agree that these appeals should be dismissed for the reasons expressed by the Chief Justice.Appendix

Ratio Decidendi

Legal Principle Established

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