Colson v The King

Case [2024] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

COLSON v THE KING

[2024] SASCA 38

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)

28 March 2024

CRIMINAL LAW – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED

CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – FAILURE TO GIVE REASONS - ADEQUACY OF REASONS – ADEQUACY OF REASONING TO SUPPORT VERDICT

CRIMINAL LAW – APPEAL - EVIDENCE – FORENSIC DISADVANTAGE - DELAY

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – FALSE IMPRISONMENT AND UNLAWFUL DETENTION

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ROBBERY

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT

Following a trial by a Judge alone, the appellant was found guilty of one count of aggravated serious criminal trespass in a place of residence, three counts of false imprisonment, three counts of aggravated procuring sexual intercourse by threats or intimidation, one count of rape, one count of aggravated indecent assault and one count of aggravated robbery.

The appellant applies for leave to appeal his conviction on four grounds. First, that the verdict was unreasonable and cannot be supported having regard to the evidence. Second, that the trial judge’s reasons are inadequate. Third, that the reasoning of the trial judge in relation to intermediate findings of fact do not provide sufficient support for verdicts of guilty beyond reasonable doubt. Fourth, that the trial judge failed to properly assess the evidence in light of the significant forensic disadvantage to the appellant.

Held, per the Court, granting permission to appeal on ground 1 but dismissing ground 1 and refusing permission to appeal on grounds 2, 3 and 4.

1.      The trial judge’s verdict was not unreasonable and is supported by the evidence.  It was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty by having regard to the evidence as a whole and having excluded as not reasonably open on the evidence the only hypotheses consistent with the innocence of the appellant.

2.      The trial judge’s reasons were adequate and the reasoning in relation to intermediate findings of fact provide sufficient support for verdicts of guilty beyond reasonable doubt. 

3.      The trial judge did not fail to properly assess the evidence in relation to potential forensic disadvantage to the appellant.

4.      The Court grants permission to appeal on ground 1, refuses permission to appeal on grounds 2, 3 and 4 and ultimately dismisses the appeal.

Criminal Procedure Act 1921 (SA) s 158(1)(a); Juries Act 1927 (SA) s 7(4); Evidence Act 1929 (SA) s 34CB, s 34P, referred to.

Bates v The King [2023] SASCA 65; Coughlan v The Queen (2020) 267 CLR 654; Dansie v The Queen (2022) 274 CLR 651; Deng v The King [2023] SASCA 35; De Sa v The Queen [2021] SASCFC 22; DL v…

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Colson v The King [2024] SASCA 38
Case
[2024] SASCA 38
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for offences including robbery and sexual assault. The appellant, Colson, accepted that the offences were committed by someone, but argued that there was a reasonable doubt as to his identity as the offender. The defence proposed three scenarios, each postulating an unknown offender, which were consistent with the appellant's innocence. The prosecution's case relied heavily on circumstantial evidence, including DNA and telephone usage, much of which was not challenged at trial.

The legal issues before the court were whether the verdict was unreasonable or unsupported by the evidence, and whether the trial judge's reasons adequately supported the verdict. The defence argued that the complainants' descriptions of the offender were inconsistent with the appellant, particularly regarding ethnicity and shoe size. They also highlighted discrepancies in DNA evidence, although the defence ultimately submitted that the prosecution's expert evidence on this point should be preferred.

The Full Court of the Supreme Court of South Australia dismissed the appeal. While granting permission to appeal on the first ground concerning the unreasonableness of the verdict, it ultimately found the verdict to be supportable. The court considered the defence's proposed hypotheses but found that they did not create a reasonable doubt when weighed against the substantial circumstantial evidence presented by the prosecution. The court also addressed the adequacy of the trial judge's reasons, finding them sufficient to support the verdict.

Permission to appeal was granted on the first ground but refused on the remaining grounds. The appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial judge set out an overview of the defence case in the following terms:[3]The defence position is that although it is accepted that the offender committed all the offences with which the accused is charged, there is a reasonable doubt as to the identity of that offender being the accused. Whilst they accept each of the categories of evidence upon which the prosecution rely for proof, they submit that it has not been proven beyond reasonable doubt that the accused was the offender. They submit that there are three scenarios that provide a rational hypothesis consistent with the innocence of the accused in relation to this matter. I bear in mind that they do not need to prove any one of these rather the prosecution must disprove them.The first scenario is that the accused attended at the complainants’ premises at the relevant time but did not go into the bedroom of the premises. It is submitted that it is possible that the true offender was somebody associated with the accused and it is that person who went into the bedroom of the premises. Further that the accused travelled in the stolen motor vehicle with the true offender until it was left at Brompton and that the accused and the true offender, who both have an association with Stacey Borsi-Watson, leave the scene. The second scenario is that the accused was in the vicinity of the Walkley Heights telephone tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address however he later met the true offender, and they travelled to Brompton in the stolen Ford and that the accused has an association with Stacey Borsi-Watson as does the true offender. The third scenario is that the accused was in the vicinity of the Walkley Heights tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address but met the true offender at Brompton. Further, that the accused and the true offender have an association with Stacey Borsi-Watson. It is the defence submission that the descriptions given by the complainants are inconsistent with the accused being the true offender. The defence particularly rely upon the description by both complainants, that the offender is Caucasian. The accused is indigenous. They also point to the inconsistency of WH’s observation that the offender has very large feet, possibly wearing size 12 shoes, when the accused was issued size 9 shoes while in custody. Where the DNA evidence differs between the expert called by the prosecution, Ms Harkin and the expert called by the defence, Ms Gerhard, the defence submission is that I should prefer the evidence of the prosecution witness. I will return to this topic in due course.[3] R v Colson [2021] SADC 150 at [30]-[35].Circumstantial evidence The prosecution case relied substantially on circumstantial evidence. The prosecution adduced five categories of circumstantial evidence to prove the appellant was the offender. Much of the circumstantial evidence went unchallenged at trial. A considerable body of evidence was agreed. While there was lengthy oral evidence on DNA and telephone usage, at the conclusion of the trial the appellant submitted that he should be acquitted of all charges on the basis that the prosecution had failed to exclude three hypotheses consistent with his innocence. Each hypothesis postulated a second unknown person being the offender. As will be seen, each hypothesis implicitly accepted the majority of the prosecution case, including the telephone and DNA evidence.

Decision

Reasons for decision

Accordingly, it is unnecessary to consider the application of the proviso.Conclusion We would grant permission to appeal on ground 1 but dismiss ground 1. We would refuse permission to appeal on grounds 2, 3 and 4.

Ratio Decidendi

Legal Principle Established

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