R v Wilson; R v Eleche
[2014] SASCFC 73
•17 July 2014
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 148, considered.
R v WILSON; R v ELECHE
[2014] SASCFC 73Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ
KOURAKIS CJ: The appellant, Mr Eleche, was convicted on four counts of aggravated robbery. Mr Wilson was convicted of aggravated robbery on the third and fourth of these counts. They both appeal against their convictions. Both Mr Wilson and Mr Eleche complain that the Judge failed to sufficiently identify the evidence relevant to each count and against each appellant. That complaint is not made out. The prosecution evidence was relatively straightforward and the jury could have had no difficulty in differentiating the evidence peculiar to each count and the evidence which was common to any two or more counts. The Judge’s directions were adequate.
Mr Wilson also 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 driving around Adelaide with Mr Wilson, they could not reason from that rejection towards Mr Wilson’s guilt. That complaint must also be rejected. There is no reason to think that the jury would have reasoned in such an illogical manner. To the extent that there was any such risk, it was dispelled by the directions which the Judge gave on the consequences of the jury disbelieving Mr Eleche.
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.
At 11.11 am on 20 October 2011, CCTV footage of the Rex Tavern at Marleston showed a man, who looks like Mr Wilson, wearing a hoodie with an “EVO” logo on it, withdrawing money from an ATM. An ATM receipt for a withdrawal made by Mr Wilson, coinciding with the timing of the withdrawal shown on CCTV footage, was later found in the silver Commodore.
The prosecution adduced evidence that Mr Wilson and Mr Eleche were in each other’s company on 20 October 2011. They were seen together by the witnesses, O’Connor and Johnson, at a house in North Plympton, in which Mr Wilson also resided, between 7.00 pm and 9.00 pm. They arrived at the house in the silver Commodore. At about 9.00 pm, Mr Eleche and Mr Wilson, accompanied by O’Connor, drove to the Caltex Service Station on Anzac Highway. CCTV footage from the Caltex Service Station shows Mr Wilson present at the station at about 9.06 pm, again wearing a hoodie labelled with the word “EVO”.
Count 3 charged both Mr Eleche and Mr Wilson with the robbery of the United Petrol Station at Pennington at 11.40 pm on 20 October 2011. Cash of about $240 was stolen. The service station attendant, Kommineni, saw two masked men run into the service station. One was armed with a cricket bat and the other with what he described as a screwdriver but which, on CCTV footage of the robbery, was consistent in appearance with the red-handled knife found in the silver Commodore. Kommineni’s description of a black balaclava worn by one of the men was consistent with a balaclava found in the silver Commodore just two hours later. The CCTV footage shows one of the robbers was wearing a jacket , a yellow baseball cap and light-coloured gloves (just like the cap, gloves and Converse jacket found in the silver Commodore), and holding a red-handled weapon consistent with the appearance of the red-handled knife which was also found in the silver Commodore. The CCTV footage shows that the other offender who was carrying a cricket bat was wearing an “EVO” hoodie. The hoodie has the same appearance as the hoodie located by police the very next morning in Mr Wilson’s bedroom. The bat is consistent with the appearance of a bat found in the silver Commodore.
Later that night, but at 1.00 am on 21 October 2011, police pulled over the silver Commodore for a traffic infringement in Augusta Street, Glenelg. The police officers saw a yellow baseball-style cap, light-coloured gloves, an EVO hoodie, a red-handled one-sided serrated knife, a cricket bat, and a jacket resembling the jacket shown in the CCTV footage of the robberies at the Seaview Downs Deli and United Petrol Station.
Both appellants were also convicted on the fourth count, which charged a second robbery of about $700 in cash from the Seaview Downs Deli at 6.45 am on 21 October 2011. The victims testified that one of the offenders carried a knife with holes in the blade and that the other held a metal-like stick. The knife appeared to be a machete or meat cleaver. The CCTV footage showed one of the robbers wearing a yellow baseball cap and light-coloured gloves, matching the appearance of the cap and gloves which were located in the silver Commodore just two hours later. The CCTV footage shows the robbers carrying a meat cleaver and a baton. A passer-by noticed a silver Commodore parked near the deli at about the time of the robbery.
At about 8.45 am a witness saw the silver Commodore at the intersection of Marion Road and Cross Road. Johnson testified that Mr Wilson arrived at her house in a silver Commodore at about 8.50 am.
Police officers pulled the silver Commodore over at the corner of Cross Road and Marion Road at 8.50 am and arrested Mr Eleche and seized the silver Commodore.
A search of the silver Commodore revealed a packet of “Holiday Red 50” cigarettes, a red-handled knife, a yellow baseball cap, light-coloured gloves, a Converse brand jacket, a cricket bat, a wooden-handled machete and a wooden-handled meat cleaver.
I have set out the similarities between the apparel and weapons used by the robbers with the clothing and weapons found on the appellants and in the silver Commodore in a spreadsheet which I include as an appendix to this judgment.
Mr Eleche gave evidence in his defence, but was much discredited in cross‑examination. Mr Eleche testified that overnight on 20-21 October 2011 he was fishing with his family in Aldinga, but it was revealed in the course of his cross-examination that during the early hours of the morning of 21 October 2011, he reported to police at Holden Hill that he was robbed of his wallet at Blackwood in the very early hours of that morning. Mr Eleche testified that the police report was false and gave an unsatisfactory explanation for having made it. The Judge left this admitted lie to the jury as evidence from which a consciousness of guilt might be inferred.
Mr Eleche testified that on 20 October 2011 he and Mr Wilson returned O’Connor to the house in North Plympton after attending the Caltex Service Station. Mr Eleche testified that from there he and Mr Wilson drove to Aldinga Beach and then later to a friend’s house near Cross Road. Mr Eleche’s evidence was that he and Mr Wilson were together at those two places over the period of time, from 11.40 pm on 20 October 2011 to 6.40 am on 21 October 2011, in which the third and fourth robberies were committed.
Mr Wilson’s counsel did not cross-examine Mr Eleche and Mr Wilson.
The Directions
The Judge gave the jury general directions to give separate consideration to each count and each accused in the following terms:
Although Mr Eleche and Mr Wilson are charged on the same Information, each count charges a separate and distinct offence against each accused. Each charge must, therefore, be treated separately and distinctly only upon the evidence in respect of that particular charge and that particular accused. When ultimately you return your verdicts you will be asked in relation to each count charging Mr Eleche whether you find him guilty or not guilty of the count in question and likewise with each count involving Mr Wilson.
The verdicts will follow the charges as they appear in the Information, so you will be asked in numerical order what your verdict is in relation to each count against each accused.
I want to emphasise that it is very important that you consider each count separately and to consider the evidence in relation to each count against each accused separately upon the evidence which is relevant to that particular count and that particular accused.
Obviously enough, Mr Wilson is not charged in relation to the first two robberies. If you were to be satisfied, for example, that Mr Eleche committed one or both of counts 1 and 2 then that has absolutely nothing to do with whether you are satisfied that Mr Wilson is guilty of either of the counts he faces. It would be totally wrong for you to reason that because Mr Wilson associates with Mr Eleche he must, therefore, have been involved in the robberies he has been jointly charged with him. I direct you must not reason that way.
Associated with that, it does not follow when an accused person is charged with more than one count, or jointly charged with another accused, that because you are satisfied of his guilt in respect of one count that he must also be guilty of the other count or counts he faces, or that because one accused is guilty of that count, so must the other accused.
I repeat: just because you find one accused guilty, it does not follow that you must also find the other accused guilty. It could be that you decide to return different verdicts against one man than against the other, depending on your view of the evidence.
When an accused person is charged with multiple counts, you may be satisfied of his guilt in respect of one count, or more than one count, or none of the counts charged, as the case may be.
Each count against each accused must be considered separately in light of the evidence that applies to that count and that accused. You must ask yourself as to each count separately ‘Am I satisfied beyond reasonable doubt by the evidence that applies to that count and to the accused we are considering that he is guilty of that particular count?’
The appellants did not contend that the general directions were attended by errors. Their complaint is that they were not adequately applied to the evidence.
The Judge directed the jury on the approach to Mr Eleche’s testimony, should they find it to be false, and on its use for and against Mr Wilson, as follows:
Please keep in mind what I said earlier about your assessment of Mr Eleche’s evidence. Even if he is totally discredited as a witness, as the prosecution has suggested must be clear to you, that would not be a substitute for evidence of the commission of the robberies by him. For that you must assess the circumstantial evidence and only if that satisfies you beyond reasonable doubt of his guilt, of any or all of the counts, can you return a guilty verdict or verdicts.
In effect, you would treat the case as if there was no evidence at all from Mr Eleche, such was the extent of his lack of credibility or truthfulness as a witness.
The reasons for this are based on our system of criminal justice, namely, the presumption of innocence and the requirement that it is the prosecution that must prove any charge beyond reasonable doubt. An accused person is generally not required to prove anything, least of all his innocence, in a criminal trial.
The evidence given in court by an accused person can be used both for and against a co‑accused, just as with the evidence of any other witness. This is because the evidence given in court can be tested through cross-examination by counsel for the co-accused and the prosecution.
As you know, Mr Lloyd, who represented Mr Wilson, elected not to cross-examine Mr Eleche. On the other hand, Mr Kalali obviously cross-examined Mr Eleche extensively.
So you may have regard to what Mr Eleche said in his evidence when determining the case, not only against him, but also against Mr Wilson.
As I have said, it is no different from how you would approach using the evidence of any other witness in this case.
Mr Eleche’s evidence of his whereabouts in relation to counts 3 and 4 is that he was at all times with Mr Wilson. And so if you were to accept that evidence, it would also apply to Mr Wilson and provide him with an alibi obviously enough.
From the prosecution point of view, Mr Eleche’s evidence that he was in the company of Mr Wilson from about 9 p.m. on Thursday, 20 October to about 8.30 a.m. on Friday, 21 October 2011 is significant, as it puts them together at the time when the United Service Station robbery occurred at about 11.40 p.m. on 20 October, and then later at about 6.40 a.m. on 21 October, when the Seaview Downs Deli was robbed for the second time during the week.
Appeals against conviction - Mr Wilson
Mr Wilson’s counsel contended that if the jury rejected Mr Eleche’s alibi evidence that evidence could not be used, as the prosecution had contended, to find that Mr Wilson was in Mr Eleche’s company at the time of the robberies. He submitted that the Judge therefore erred in leaving that use open to the jury. I reject that submission.
Mr Eleche’s alibi testimony consisted of two principal assertions of fact. The first was that he and Mr Wilson were in each other’s company at the time of the third and fourth robberies. The second was that they were at Aldinga and at a friend’s house near Cross Road at the time of those robberies. Even though those two facts were, for Mr Eleche’s purposes in putting forward an alibi, inextricably connected it was open to the jury to either accept both factual assertions, at least as to a reasonable possibility, or to accept one and not the other. Despite Mr Eleche’s tying of both statements of fact together, one of the factual assertions could be accepted and the other rejected. That was particularly so in the circumstances of this case in which there was uncontroverted evidence that Mr Eleche and Mr Wilson were seen together at the Caltex Service Station, when they were stopped by police at Glenelg at 1 a.m. on 21 October and again together whilst driving along Cross Road near the intersection of Marion Road at about 8.45 a.m. on that same day. At the risk of labouring what is a simple proposition I observe, by way of example, that if Mr Eleche’s testimony had been partially supported by independent evidence to the effect that he was at Aldinga and at a friend’s home at the relevant times, but not with Mr Wilson, it would have been open to the jury to use Mr Eleche’s evidence in support of an alibi for himself, whilst at the same time rejecting his factual assertion that Mr Wilson was with him. It follows that this ground of appeal should be dismissed.
Mr Wilson’s counsel also complains that the Judge erred in directing the jury that it “may have regard to what Mr Eleche said in his evidence when determining the case, not only against him, but also against Mr Wilson” without further supplementing that direction with a warning not to draw an adverse inference against Mr Wilson from the unsatisfactory and inconsistent evidence given by Mr Eleche.
Mr Wilson’s counsel contended that the Judge should have directed the jury not to draw any adverse inference against Mr Wilson by reason of the substantial discrediting of Mr Eleche who had purported to give Mr Wilson an alibi. It is illogical to reason that because A has incorporated B into a false alibi which he advances for himself, that B must have been knowingly involved in its concoction and the commission of the offences. There is no reason to think that the jury would have reasoned in that illogical way. Be that as it may, the Judge carefully directed the jury to consider the case against each accused separately and warned the jury that the rejection of Mr Eleche’s evidence did not support a positive finding against him. The Judge having so directed the jury, there is no risk that they would have used their adverse assessment of Mr Eleche’s against Mr Wilson. In a related complaint it was also submitted that the Judge should have warned the jury not to reason from Mr Wilson’s counsel’s failure to cross-examine Mr Eleche that Mr Wilson was complicit in the fabrication of the alibi. The jury would have understood that the failure to cross-examine Mr Eleche could no more be used to prove Mr Wilson’s guilt than Mr Eleche’s false evidence could be used to prove his.
There is a further reason that the Judge should not have given the jury the direction suggested by Mr Wilson for the first time on appeal. Mr Eleche’s testimony gave Mr Wilson an alibi, of which he was plainly anxious to take advantage. It is likely that Mr Wilson’s decision not to cross-examine Mr Eleche was driven by his desire to avail himself of that alibi evidence. To have directed the jury as he now suggests would, for all practical purposes, have denied him the benefit of that alibi evidence. The appeal on this ground should be dismissed.
Appeal against conviction – Mr Wilson and Mr Eleche – failure to adequately identify the evidence relating to each count
The general directions on giving each count separate consideration were favourable to the appellants. Much of the evidence applicable to each count was in fact cross-admissible to prove one or more of the other counts because of the improbability of another offender or offenders with similar apparel, transport and weapons committing robberies so proximate in time. The spreadsheet appended to this judgment graphically illustrates the degree of similarity and, therefore, the improbability that the offences were committed by others.
Be that as it may, after giving the general directions which I have earlier set out, the Judge prefaced his discussion of the evidence with the remark:
Now, in this case you have been invited to find the identity of the robbers as being Mr Eleche and Mr Wilson from drawing inferences from the entirety of the circumstances presented to you and which you are satisfied have been proved.
There is, admittedly, a little ambiguity in the Judge’s reference to “the entirety of the circumstances” but when considered together with the general direction, there is no reason to think that the jury would not have understood the Judge to be referring to “the entirety of the circumstances” pertaining to each accused and each count.
Broadly, there was no difficulty in this case in ascertaining which of the circumstances pertained to each count. Certainly the evidence of the victims of each robbery, and with respect to count 2 and 4, the nearby witnesses who saw the silver Commodore could easily be identified as evidence on each of the counts to which it peculiarly related. The evidence of the movements of Mr Wilson and Mr Eleche and their sightings before, in between, and after, counts 3 and 4 related to both of those counts but there is no risk that that evidence might have been misused. The other major body of evidence related to the appearances of Mr Eleche and Mr Wilson at particular times on 20 and 21 October, and to the searches of the silver Commodore. True it is that that evidence showed them to be wearing, or in possession of, items of clothing and potential weapons which may have been used in one robbery and not the other, or perhaps not in any robbery at all. However, the jury cannot have failed to understand, indeed it was simply a matter of common sense, that the way in which the evidence of the searches should be used, was to consider whether or not any of the items found on the appellants or in the silver Commodore connected either or both of them, with one, or more, of the robberies.
Furthermore, that is precisely how the Judge approached the evidence in the ten pages which followed that opening remark. The Judge may have provided more assistance to the jury had he dealt with each count in turn, referring the jury to the evidence pertaining to each count and to its use. Indeed, the Judge did just that with the evidence relating to the count charging the Subway robbery. The Judge said:
If all you had in relation to the Subway robbery was a man wearing a grey Everlast singlet that would be like a barely lit single candle in a dark room. It doesn’t help you see much at all. But when you add to that the fact that the man is wearing an Australian Ashes cricket cap, yellow in colour with dark markings alongside and sunglasses and wearing a pair of grey or light-coloured gloves, carrying a red-handled knife which Ms Mrkic said looked like the knife found in Mr Eleche’s car and wearing dark jeans and of a height, build and stature similar to Mr Eleche, then the prosecution submits that the picture should become very clear to you that it is Mr Eleche. Then you know that the robber stole cash in $5, $10 and $20 denominations, notes which Mr Eleche had in his possession. Throw in then what Mr Arena witnessed of the car the man got into around the corner from the Subway, being a silver Northern Territory plated late model Commodore with a rear spoiler similar to the one driven by Mr Eleche at the time, and the prosecution submits the combination of those circumstances should lead you to be satisfied beyond reasonable doubt that it has proved the identity of the Subway robber as Mr Eleche.
Be that as it may, 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.
Sentence Appeal
Mr Eleche was sentenced to 15 years imprisonment, cumulative upon three months imprisonment for breaching a suspended sentence bond. A non-parole period of nine years was imposed. Mr Wilson was sentenced to imprisonment for nine years with a non-parole period of five years. The sentences were back-dated to a time before the appellants were taken into custody to allow for periods of bail on home detention.
The Court of Criminal Appeal in R v Place[1] established a sentencing standard for offences of armed robbery. In the ordinary course a sentence of six to eight years imprisonment will be imposed for robberies of premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects which appear to be weapons are used to threaten victims. Plainly enough the balance of aggravating or mitigating circumstances struck by a judge in a particular case, will determine where, within the range so set, the sentence will fall. On occasion the individual circumstances of the offence or the offender may bring the case out of the generality of cases to which the standard applies and a higher or lower sentence may properly be imposed.
[1] (2002) 81 SASR 395 at [99]-[108].
The offences here were typical of their kind. They were planned and involved a careful selection of suitable targets. There was nothing in Mr Eleche’s personal circumstances which strongly countered the importance of general deterrence.
The sentence is not manifestly excessive.
I turn to the complaint that the sentence should nonetheless be reduced because of the special hardship flowing from Mr Eleche’s medical condition. On the appeal, Mr Eleche tendered evidence about the treatment of his medical conditions whilst in prison. Affidavits sworn by Mr Eleche about that treatment and exhibiting notes of the Prison Health Service were received for the purpose of determining whether they should be received as further evidence pursuant to s 359 of the Criminal Law Consolidation Act 1935 (SA). Before turning to that evidence, it is necessary to relate the way in which Mr Eleche’s health was dealt with in the sentencing submissions before the Judge.
In the course of sentencing submissions, a report of Mr Eleche’s general practitioner, Dr Wong was provided to the Judge. Dr Wong reported that Mr Eleche suffered from Crohn’s Disease. Dr Wong wrote that even before Mr Eleche was remanded in custody, he had missed appointments for medical reviews of that condition and his compliance with medications was “variable” at best. She concluded that Mr Eleche needed on-going specialist management for his condition, which included regular colonoscopies to check the state of his bowel, and medications to control his symptoms and flare-ups. Dr Wong reported that if untreated Crohn’s disease can be debilitating and potentially life threatening.
Dr Wong also referred to a submandibular infection from which Mr Eleche suffered. She noted that Mr Eleche was admitted to the Royal Adelaide Hospital in 2013 for drainage of a submandibular neck abscess which twice required a tooth extraction. The condition was resistant to antibiotics. In September 2013 Mr Eleche was still experiencing symptoms indicative of on-going infections. Dr Wong concluded:
If untreated, the infection could spread into the jawbone itself, and surrounding tissue. I doubt if the condition has stabilised, and he should continue to see the relevant specialist in the Royal Adelaide Hospital until cleared by them. Prognosis for total cure is good, if proper treatment is followed.
In the course of sentencing submissions, Mr Eleche’s counsel said:
I have undertaken some inquiries in terms of the sorts of treatment that Mr Eleche could receive during the period of his incarceration and whilst health is a relevant factor for your Honour to consider, it’s not my submission that his health is unlikely to be able to be treated in custody, such that his health would be at great risk during the period of imprisonment. However, having said that, your Honour will note the matters that Dr Wong referred to in her report.
A little later there was the following exchange between the Judge and Mr Eleche:
COUNSEL: Could your Honour excuse me a moment? I just want to check something.
PRISONER MR ELECHE: May I say something?
HIS HONOUR: You’ve got counsel.
PRISONER MR ELECHE: I’d like to go to the bench and seek an adjournment for further counsel.
HIS HONOUR: I’m not going to grant any further adjournments. I’ve heard submissions today.
PRISONER MR ELECHE: Not under my instructions.
HIS HONOUR: I intend to sentence you today, Mr Eleche.
At no time after that exchange did Mr Eleche’s counsel ask for an adjournment or seek permission to withdraw.
In the course of sentencing the Judge referred to Mr Eleche’s conditions as:
At the time of your offending you were in receipt of a disability support pension due to your suffering from long term serious health issues, including Crohn’s disease and rheumatoid arthritis. Recently, you also suffered from an infection to your jaw.
You have been prescribed a variety of medications to help you deal with your physical ailments. I have received a letter from your general practitioner relating to these conditions. Crohn’s disease is particularly serious and requires ongoing specialist medical management. If left untreated it can be debilitating and potentially life‑threatening.
You have also suffered from other ailments causally linked to your treatment for Crohn’s disease. Whilst I take into account the situation relating to your health, I am satisfied that your health care can be properly managed by the prison medical services, including ensuring your attendances at hospital, if required, and the provision of your medication.
The complaints of Mr Eleche in his affidavits are many and varied. However, in submissions on this appeal, his counsel condensed those complaints to three matters of serious concern.
First, counsel submitted that Mr Eleche had not received “regular” colonoscopies as recommended by Dr Wong. However, even though a colonoscopy has yet to be performed, there is no evidence that the proper management of Mr Eleche’s Crohn’s disease required one to have been performed before now. Moreover, a colonoscopy scheduled for 26 March 2014 was cancelled because Mr Eleche refused to be admitted for bowel preparation. In any event, the Acting Clinical Director of the South Australian Prison Health Service, Dr Findlay, deposed in an answering affidavit that an appointment has been made for Mr Eleche to see a colorectal surgeon at the Royal Adelaide Hospital in July. Dr Findlay also deposed that the Prison Health Service has delivered appropriate care for Mr Eleche’s Crohn’s disease in the time that he has been in custody. Mr Eleche has not tendered any medical opinion challenging Dr Findlay’s assessment of the treatment Mr Eleche has received.
Secondly, Mr Eleche complains that he receives only half of the dose of Panadeine Forte that he had been taking whilst in the community. He had been prescribed Panadeine Forte four times a day but Dr Findlay explained that prison drug rounds are conducted only twice daily. Mr Eleche has not adduced medical opinion to the effect that he requires more than the dose which he now receives. The use of, and need for pain relief, is a very subjective matter. There is no reason to think that the reduced dosage in any way compromises Mr Eleche’s health or causes material distress.
The third complaint is related to the first. Mr Eleche’s medical notes record that he has continued to suffer from rectal bleeding whilst in custody. However, there is no reason to think that he would have suffered that symptom any differently, had he been in the community.
Finally, it was submitted that Mr Eleche’s submandibular infection had been poorly treated. Mr Eleche was remanded in custody on 29 October 2013 following the jury verdict. Dr Findlay acknowledged that errors on the part of prison authorities had led to the cancellation of four bone scan appointments between November and December 2013. However, Dr Findlay confirmed that the Prison Health Service would proceed to arrange the appropriate treatment.
Dr Findlay denied a number of other miscellaneous complaints which Mr Eleche had made in his affidavit about his treatment and the attitude of the prison medical staff to him. Some of Mr Eleche’s complaints are contradicted by the medical records. Dr Findlay also drew attention to notes in the medical records which suggest that Mr Eleche had been storing drugs, including anti-depressants, instead of taking them.
The only material inadequacy in the provision of medical treatment concerns the failed arrangements to have a bone scan taken in December 2013. No good reason was advanced for failing to bring that matter to the attention of the Judge. Counsel chose not to do so and, indeed, conceded that his conditions could be managed in custody. Importantly, as counsel continued to appear after the exchange between the Judge and Mr Eleche, to which I earlier referred. For that reason alone, I would have been inclined to refuse permission to appeal.
However, more importantly, Mr Eleche has not established that his incarceration has contributed to any material deterioration or exacerbation of his illnesses. Incarceration necessarily creates special difficulties for the management of medical conditions. The Judge anticipated that the Prison Health Service would manage Mr Eleche’s medical condition appropriately by the direct provision of services and by referring him to the Royal Adelaide Hospital as necessary. By and large that has happened. The administrative errors in getting Mr Eleche to the Royal Adelaide Hospital do not deny the capacity of the Prison Health Service to provide proper treatment. They merely illustrate the additional administrative difficulties of which the Judge was undoubtedly aware.
The further evidence on which Mr Eleche proposes to rely does not falsify the premise on which Mr Eleche was sentenced.[2]
[2] R v Kikidis (2012) 112 SASR 148.
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
| Event/ Count | Offence | Silver Commodore | Eleche Everlast Top | Eleche Converse Jacket | Eleche Yellow Baseball Cap | Eleche Gloves | Wilson EVO Hoodie | Red-handled Knife | Baton | Cricket Bat | Machete/ meat cleaver |
| 1 | Seaview Downs Deli - 6.02 am | P | P | ||||||||
| 2 | Subway | P | P | P | P | P | |||||
| Rex Tavern | P | ||||||||||
| O’Connor | P | P | |||||||||
| 3 | United Service Station - 20/10/11 | P | P | P | P | P | P | ||||
| Police search vehicle - | P | P | P | P | P | P | |||||
| 4 | Seaview | P | P | P | P | P | |||||
| Eleche arrest | P | P | P | P | |||||||
| Search Wilson | P | P | |||||||||
| Search Silver | P | P | P | P | P | P |
6
3
1