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Wade v The Queen

Wade v The Queen

Case [2014] VSCA 13 14 February 2014

Criminal Liability

Sentencing

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0087
EDWARD WADE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES	NETTLE, REDLICH and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2014
DATE OF JUDGMENT	14 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 13
JUDGMENT APPEALED FROM	DPP v [Wade] (Unreported, County Court of Victoria, Judge Maidment, 23 April 2013)

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CRIMINAL LAW – Conviction – Armed robbery and attempted armed robbery – Applicant sentenced to a 25 years Supervision Order pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Indictment – Severance – Prejudice – Whether charges should have been severed – Verdict – Whether verdict unreasonable – Evidence – Whether secondary evidence of contents of lost CCTV recordings should have been excluded under s 137 of Evidence Act 2008 – Pitkin v R (1995) 130 ALR 35; Libke v The Queen (2007) 230 CLR 559; Festa v The Queen (2001) 208 CLR 593, referred to – Evidence Act 2008 s 137.

WORDS AND PHRASES – ‘Document’ – Whether judge erred in treating CCTV footage as document within the meaning of s 48 of Evidence Act 2008 –Taylor v Chief Constable [1986] 1 WLR 1480; R v Sitek [1988] 2 Qd R 284; Smith v The Queen (2006) 206 CLR 650 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

We shall grant leave to the applicant to amend his grounds of appeal and written case to accord with those which have been most recently filed.

On 27 February 2012, the applicant was found guilty at a special hearing of one offence of armed robbery and one offence of attempted armed robbery and, on 23 April 2013, he was sentenced therefor to a custodial supervision order with a nominal term of 25 years commencing on 31 July 2012 to be reviewed after 15 months. He now seeks leave to appeal against conviction on five grounds amounting in substance to that: (1) the judge erred in failing to sever the first charge from the indictment; (2) the findings that the applicant committed the offences are unreasonable and cannot be supported by the evidence; and (3) the judge erred in admitting evidence of Detective Senior Constable White as to his observations of images shown on CCTV security camera footage.

The Crown case

The Crown case on Charge 1 was that on 28 July 2012 the applicant entered the Liberty Petrol Station at 148 Mason Street, Newport at about 8.39pm and approached the store attendant, Manesh Gangi, asking for money. He then entered the counter area and threatened Mr Gangi with a capped syringe.…

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 Wade v The Queen

Details

AGLC: and Edward Wade (a pseudonym)[1] v The Queen [2014] VSCA 13
Case: [2014] VSCA 13
Decision Date: 14 February 2014

CaseChat Overview and Summary

The appellant, Wade, was convicted of armed robbery and attempted armed robbery and sentenced to a 25-year Supervision Order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The case reached the court on the grounds of alleged errors in the trial process and the handling of evidence. The primary issues before the court were whether the charges should have been severed, whether the verdict was unreasonable, and whether secondary evidence of lost CCTV footage should have been excluded under s 137 of the Evidence Act 2008. Additionally, the court examined whether the trial judge erred in treating the CCTV footage as a document within the meaning of s 48 of the Evidence Act 2008.

The court began by addressing the issue of severance, noting that there was no prejudice caused by joining the charges. The court found that the joinder of charges did not prejudice the appellant's right to a fair trial. In considering the reasonableness of the verdict, the court held that the jury's decision was supported by the evidence presented. Regarding the exclusion of secondary evidence of the lost CCTV footage, the court held that the evidence was admissible as it was relevant and reliable, and the court did not err in allowing its admission. The court further found that the trial judge did not err in treating the CCTV footage as a document within the meaning of s 48 of the Evidence Act 2008, as it was a record of events made at or near the time of the occurrence.

The court dismissed the appeal, affirming the conviction and sentence imposed by the lower court. The court held that the trial process was fair, and the evidence was properly admitted and considered. The verdict was reasonable and supported by the evidence presented at trial.

Orders