Ward v The Queen - [2013] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0103

MATTHEW THOMAS WARD
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARPER, PRIEST and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2013
DATE OF JUDGMENT:	18 March 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 60
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Dean, 5 March 2012 (date of conviction)

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CRIMINAL LAW – Conviction – Robbery – Acting in concert – Whether jury verdict unreasonable and/or unsupported having regard to the evidence – ‘Strands in a cable’ case – R v Jensen and Ward [1980] VR 194, Martin v Osborne (1936) 55 CLR 367, Plomp v The Queen (1963) 110 CLR 234 and Shepherd v The Queen (1990) 170 CLR 573 applied – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Pica Criminal Lawyers
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

The nature of the appeal

On 5 March 2012 the appellant was found guilty by a jury of one charge of robbery (maximum 15 years’ imprisonment). He was sentenced to three years’ imprisonment with a non-parole period of 18 months. On 18 September 2012, however, Buchanan JA granted him leave to appeal against conviction. The sole ground of appeal is:

The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence.
Particulars
Upon the whole of the evidence adduced by the Crown, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of the charge.

Robbery is an aggravated form of theft. Section 75(1) of the Crimes Act 1958 provides:

(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.

In R v Foster[1] the Court said in a joint judgment:

The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft.
[1](1995) 78 A Crim R 517, 522 (NSW CCA). See also R v Butcher [1986] VR 37, 47, 50.

Background

The appellant and Richard Michail are friends. On the morning of Monday 25 May 2010 they drove together in a black Holden Monaro to the premises of Lorbek Luxury Cars, the managing director of which is Srecko Lorbek. When they arrived at about 10.30am, Mr Lorbek was attending to a customer in the showroom of his business. Michail approached him. Meanwhile, the…

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 Ward v The Queen

Details

AGLC: Ward v The Queen [2013] VSCA 60
Case: [2013] VSCA 60
Decision Date: 18 March 2013

CaseChat Overview and Summary

The appellant was convicted of robbery while acting in concert with others. The appellant appealed against his conviction on the basis that the jury's verdict was unreasonable and/or unsupported by the evidence. The central issue for the court was to determine whether the jury's verdict, that the appellant was part of a group that committed the robbery, was reasonable and supported by the evidence presented at trial. This required an assessment of whether the evidence established that the appellant was acting in concert with others in committing the robbery.

The court considered that the evidence established a number of 'strands' that, when viewed together, formed a cable that demonstrated the appellant's involvement in the robbery. The court found that the jury was entitled to find that the appellant was part of the group that committed the robbery based on the totality of the evidence. The court emphasised that the jury was free to draw inferences from the evidence and that the verdict was not unreasonable or unsupported. The court also noted that the appellant's arguments were essentially submissions of no case to answer and that the appeal was dismissed as there was no point of principle.

The court found that the evidence was sufficient to establish the appellant's involvement in the robbery and that the jury's verdict was reasonable and supported by the evidence. The court also noted that the appellant's arguments were essentially submissions of no case to answer and that the appeal was dismissed as there was no point of principle. The appeal was dismissed, and the conviction was upheld.

Orders