Ward v The Queen [2017] VSCA 222

CRIMINAL LAW - Application for leave to appeal - Sentence - Theft (four charges) - Burglary (one charge) - Cumulation - Whether cumulation ordered renders total effective sentence manifestly excessive or as breach of totality principle - Leave to appeal refused.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 This application concerns convictions and sentences on three separate indictments, which for ease of reference I will refer to by their final numbers, being 6.1, 6.2 and 6.3.

2 On indictment 6.1 the applicant pleaded guilty to one charge of theft of a BMW motor vehicle on 18 February 2015.

3 Indictment 6.2 contained further charges also allegedly committed on 18 February 2015. The applicant pleaded not guilty to those charges. He was found guilty after a trial on one charge of attempted armed robbery (charge 1), one charge of armed robbery (charge 3), and one charge of reckless conduct endangering life (charge 4).

4 On indictment 6.3 the applicant pleaded guilty to charges of theft of a registration plate, theft of a Ford motor vehicle, burglary, and theft.

5 On 10 March 2017 the applicant was sentenced as follows:

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: Indictment 6.1 - 2 years' imprisonment; Indictment 6.3 - an aggregate term of 7 years' imprisonment

6 The applicant seeks leave to appeal his conviction on the following ground:

The learned trial judge erred in permitting the prosecution to lead evidence of the statistical likelihood of a mobile phone being in particular geographic areas at particular times.

7 The applicant also seeks leave to appeal his sentence on the following ground:

The orders for cumulation made by the learned sentencing judge for the offences on indictments [6.1] and [6.3]:

(a) breached the principle of totality; and

(b) resulted in a manifestly excessive total effective sentence.

The application for leave to appeal conviction

8 The issue in relation to the charges on indictment 6.2, to which the applicant pleaded not guilty, was identity. There was no doubt that the relevant offences were committed. The issue was whether the Crown could prove beyond reasonable doubt that they were committed by the applicant.

9 The charge of attempted armed robbery (charge 1) was an offence at an Aldi supermarket in the early hours of the morning on 18 February 2015. Two men entered the Aldi supermarket after smashing the glass front door. One of the men was alleged to be the applicant. He had a firearm. The men left without taking anything after staff members told them there was no money on the premises. They drove off in a white BMW which had been stolen.

10 A little later on the same morning the two men carried out an armed robbery at a café in Malvern. The person alleged to be the applicant pointed a shotgun at one of the staff. Approximately $300 in cash was stolen. The offenders left in the white BMW.

11 The white BMW was involved in a police pursuit shortly after the armed robbery at the cafe. It is alleged that the applicant drove the vehicle in a reckless manner endangering life (charge 4). The offenders were not apprehended.

12 Surveillance evidence identified the applicant driving the BMW later on 18 February 2015.

13 Part of the Crown case that it was the applicant who was one of the offenders relied on mobile telephone records of a phone registered in the name of the applicant's defacto partner. Evidence was given by Optus employees in relation to call records and cell towers. There were two issues in relation to this evidence, whether the prosecution could prove that the applicant had the relevant mobile phone at the relevant time, and whether the evidence established that the mobile phone was in the vicinity of the locations of the offending at the relevant time.

14 Evidence was given and phone records were produced by an Optus officer named David Finlay. The controversial evidence in the current context was given by another officer of Optus, Oleg Prypoten.

15 Mr Prypoten gave evidence about certain digital maps containing light green and dark green shading indicating the likely location of the relevant mobile phone at particular times. The issue of controversy in relation to his evidence became whether he ought to be permitted to use percentages when describing the likelihood of the mobile phone being in a particular location at a particular time. During Mr Prypoten's evidence on a voir dire the judge said:

I want to make it clear that what my concern is, if someone is going to speak about probabilities and possibilities and high confidence, they are statements without empirical certainty but they are indicative of the position. If you are going to turn it into percentages, that changes the position. If in fact there is material upon which the percentages can be calculated, then I think I should allow the witness to give evidence as to that.

If it is really just a person saying 99 percent because that's what they mean with high confidence, then they should say 'high confidence'. If there is some uncertainty about this, I don't want a witness just plucking a figure out of the air because it would be inappropriate and I just wonder whether the better course is if the prosecution wants to lead evidence other than of high confidence, then the way to do it is to qualify the witness to do it.[1]

16 Mr Prypoten had suggested on the voir dire that the location of the mobile phone within the various designated areas could be determined with a probability of 95 percent. When initially asked the basis of that figure he said 'it's just a representation of highly likely'.[2]

17 He was then examined at some length about the various figures. When asked what 'generates' the 95 percent he said:

Well, in the - in the computer, you put all the parameters in and one of them is the deviation of the model. So something we discussed before. So the tool, the computer software, is aware about the ranges within which signal was detected in every tile. And using that variation, it computes the value with 95 per cent probability of that value to be - to happen in that tile. So the 95 percent is the coverage probability or the value calculation probability which returned by the tool, by the computer software, and that's the number which was used for consistency.[3]

18 At the conclusion of the voir dire the judge ruled that the witness could give evidence of the 95 percent figure. He said:

[I]t seems to me that the figure of 95 per cent is generated as a matter of input into the algorithm which is designed to produce a finding to that degree of certainty based on the algorithm.[4]

[I]t is not a question of mere speculation and plucking a figure out of the air, it is a figure generated through a process which has a potential of a jury being satisfied, is the subject of some [rigour], and is relied upon by the industry.[5]

19 Mr Prypoten then gave evidence before the jury and he made repeated reference to the 95 percent figure. He was cross-examined and gave explanations as to how the figure was arrived at. His cross-examination did not conclude on the day that he commenced giving evidence before the jury. The following day, in the course of further cross-examination, he corrected the evidence he had previously given in relation to the 95 percent figure, and how it was calculated. He said that this change in his evidence came about because 'I got clarification where those 95 percent are coming from'. He said the evidence he had given before was his 'understanding yesterday' based on my 'yesterday knowledge'.[6] He had accepted that to verify the 95 percent figure it would be necessary to undertake a statistically significant test and that that had not been done.[7]

20 Defence counsel did not ask the judge to reconsider his ruling, nor did he ask the judge to give the jury any specific direction about the evidence concerning the '95 percent'.

21 The prosecutor in his closing address referred to 'percentage probabilities' but did not expressly address the 95 percent figure.[8] Defence counsel in his final address referred to the 'real limitations' of Mr Prypoten's evidence and suggested that his evidence about 'mathematical probabilities' 'completely collapsed'.[9] Apart from giving a general direction in relation to experts, the judge did not specifically deal with this issue in his charge.[10]

22 The applicant submits that the evidence concerning the mobile phone was very significant in the trial and that Mr Prypoten should not have been permitted to give evidence by reference to the 95 percent figure. It was submitted that the figure had not been properly verified and the evidence given after the ruling had revealed that Mr Prypoten's original understanding of the figure was incorrect and that he had been corrected by others whose identity was unknown.

23 On behalf of the respondent it was submitted that the trial judge's ruling had been correct but that in any event the evidence did not have the significance which is now attributed to it and, even if the judge had been in error, no substantial miscarriage of justice had occurred.

24 In my view the applicant should have leave to appeal on this proposed ground. In those circumstances I do not consider that it is desirable to go into the merits of the various arguments. In particular, I emphasise that I have not attempted a review of the material in order to determine whether the respondent's contention that the evidence had little real significance, and that no substantial miscarriage of justice occurred even if an error had been made, was well founded.

25 The application for leave to appeal against sentence is confined to the periods of cumulation ordered in relation to the offence on indictment 6.1 and the offences on indictment 6.3.

26 In my view this proposed ground is not arguable.

27 The cumulation in relation to the offences on indictment 6.3 was, in my view, very modest. Indictment 6.3 concerned discrete serious offending. I do not consider that the cumulation ordered could be seen as rendering the total effective sentence manifestly excessive, or as constituting a breach of the totality principle.

28 As to the cumulation on the single theft charge on indictment 6.1, a lesser cumulation might have been open but I do not consider that it can be arguably contended that the cumulation which was ordered was outside the range open to the sentencing judge, or was such as to breach the principle of totality or result in a manifestly excessive total effective sentence.

[1] Transcript of Proceedings, DPP v Ward (County Court of Victoria, Judge Saccardo, 7 December 2016) 368.

[5] Ibid. 'Rigour' is spelt 'rigger' in the unrevised transcript of the ruling.

[6] Transcript of Proceedings, DPP v Ward (County Court of Victoria, Judge Saccardo, 8 December 2016) 463-5.

[8] Transcript of Proceedings, DPP v Ward (County Court of Victoria, Judge Saccardo, 9 December 2016) 576.