SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0040
| ADAM ALEXIS ROSS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2015 |
| DATE OF JUDGMENT: | 16 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 302 |
| JUDGMENT APPEALED FROM: | DPP v Ross (County Court of Victoria, Judge Lacava, 30 January 2015) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Confrontational aggravated burglary – Forced entry with intent to commit assault – Four years’ imprisonment – Expert report – Diagnosis of acquired brain injury – Depression and anxiety – Whether cognitive and psychological factors contributed to offending – Offender consumed bottle of vodka beforehand – Judge attributed offending to intoxication – Whether bound to accept expert opinion – Whether bound to warn counsel that opinion might not be accepted – Whether sentence manifestly excessive – Appeal dismissed – Hogarth v The Queen (2012) 37 VR 658 applied.
CRIMINAL LAW – Evidence – Expert evidence – Procedural fairness – Psychologist’s report – Unchallenged opinion evidence – Whether judge obliged to accept expert opinion – Opinion based on facts reported by offender – Whether independent proof of facts required – Whether judge obliged to inform counsel that proof required – Failure to give notice – No inherent risk of rejection of report – Breach of natural justice – Breach immaterial – Humphries v The Queen [2010] VSCA 161 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Ternovski | Michael J Gleeson & Associates |
| For the Respondent | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA:
The appellant (‘AR’)[1] pleaded guilty to charges of aggravated burglary, intentionally causing injury and making a threat to kill, and a related summary charge of unlawful assault. He was sentenced on 30 January 2015 as follows:
[1]The abbreviation is for ease of reference only.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary 25y 4y Base 2 Intentionally cause injury 10y 2y 1y 3 Threat to kill 10y 2y – Summary
Charge 7Unlawful assault 3m 1m – Total Effective Sentence: 5y Non-Parole Period: 3y 6AAA Statement: 7y; NPP 5y
The offending took place in the early hours of Monday 22 September 2014.[2] The previous evening, AR had consumed a 700ml bottle of vodka, used six Imovane tablets and smoked a gram of cannabis at his residence.
[2]This description of the circumstances is drawn from the Registrar’s Neutral Summary.
At approximately midnight, AR walked to the house of a person he knew (‘K’) and told her that he was going to do a ‘run through’ of a house. AR offered no other specific details.
At approximately 1:00 am, AR went to an address nearby. Having observed no lights or noise coming from within the house, he unsuccessfully attempted to open a locked front security door. AR picked up a tyre lever on the front patio and used it to pop the security door lock…
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- AGLC
- Ross v The Queen [2015] VSCA 302
- Case
- [2015] VSCA 302
- Decision Date
CaseChat Overview and Summary
The primary legal issues in the appeal involved whether the trial judge was bound to accept the expert opinion regarding Ross's acquired brain injury and depression, and whether the judge was required to warn counsel that the opinion might not be accepted. Additionally, the court had to determine whether the sentence was manifestly excessive, given the mitigating circumstances. The appeal also questioned whether the trial judge breached natural justice by not independently verifying the facts upon which the psychologist's report was based.
The Court of Appeal held that the trial judge was not obliged to accept the expert opinion without independent verification of the facts. However, this did not constitute a breach of natural justice as there was no inherent risk of rejection of the report. The court found that the judge was not bound to accept the expert opinion, and it was not required to warn counsel that the opinion might be rejected. Furthermore, the sentence was deemed not manifestly excessive, considering all the circumstances of the case, including Ross’s intoxication at the time of the offence. The appeal was dismissed, applying the principles established in Hogarth v The Queen and Humphries v The Queen.
The Court of Appeal confirmed the original sentence of four years’ imprisonment. The appeal was dismissed, and the conviction and sentence were upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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