Dennerley v The Queen
[2022] SASCA 92
•8 September 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
DENNERLEY v THE QUEEN
[2022] SASCA 92
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
8 September 2022
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS ENDANGERING LIFE OR PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Appeal against conviction.
Following a trial by jury, the appellant was unanimously convicted of one count of aggravated possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA); one count of aggravated endangering life, contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); and one count of damaging property, contrary to s 85(2) of the CLCA.
The prosecution case was that the appellant, using his father’s .357 Smith and Wesson revolver which he had access to at his premises, fired six bullets into the premises of the victim on 14 January 2020, at about 11:40pm. The case was circumstantial.
The appellant’s housemate at the time gave evidence at trial that he found the appellant’s clothes in the washing machine the next day, wet. He said he had seen the appellant wearing that clothing earlier in the evening on the night of the offending. Much of the clothing described by the housemate did not match the clothing worn by the appellant as recorded on CCTV footage close to the time of the shooting.
This appeal concerns whether the trial judge erred in the treatment of the evidence of the appellant’s clothes being washed, specifically whether the evidence ought to have been excluded on the basis that it was irrelevant; whether the evidence ought to have not been left to the jury as capable of establishing a consciousness of guilt; and whether the jury ought to have been directed to ignore the evidence.
Held (by the Court), dismissing the appeal:
1.The evidence was relevant. It was capable of indicating a consciousness of guilt on the part of the appellant. Whether it did so, and the weight it should be accorded given the descriptions of style and colour that the housemate gave, were matters for the jury.
2.The jury was aided by comprehensive and prudent directions that were favourable to the appellant.
Criminal Law Consolidation Act 1935 (SA) ss 29(1), 85(2); Firearms Act 2015 (SA) s 9(1), referred to.
Dodd v Western Australia [2014] WASCA 13; Edwards v The Queen (1993) 178 CLR 193; Elrick v The Queen [2021] SASCA 13; Imm v The Queen (2016) 257 CLR 300; R v Adamson [2018] SASCFC 114; R v Baden-Clay (2016) 258 CLR 308; R v Burns (2009) 103 SASR 514; R v Curran (2008) 100 SASR 71; R v Garner; R v Webb [2021] SASCA 68; R v W, CT [2019] SASCFC 18; R v White [1998] 2 SCR 72; R v Wildy (2011) 111 SASR 189, considered.
DENNERLEY v THE QUEEN
[2022] SASCA 92Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA
THE COURT: Following a trial by jury, the appellant was unanimously convicted of one count of aggravated possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA); one count of aggravated endangering life, contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); and one count of damaging property, contrary to s 85(2) of the CLCA.
This appeal against conviction concerns whether the trial judge erred in his treatment of the evidence of certain of the appellant’s clothes being washed, namely:
·whether the evidence ought to have been excluded on the basis that it was irrelevant;
·whether the evidence ought to have not been left to the jury as capable of establishing a consciousness of guilt; and
·whether the jury ought to have been directed to ignore the evidence.
Background
The shooting
On 14 January 2020, at about 11:45pm, the complainant, Mr Andrew Taylor, and his housemate, Ms Brooklyn Roberts, were inside their residential premises at 29 Eton Drive, Andrews Farm (‘Eton Drive’), when six bullets were fired at the address from the street. The prosecution case was that the appellant fired these bullets.
The revolver and the speed loader
On the night of the shooting, the appellant was residing at his father’s property at 14 Harvest Court, Andrews Farm (‘Harvest Court’). On 15 January 2020, police conducted a search at that address and located a gun safe in the rear room. They found a number of firearms, including a .357 Smith and Wesson revolver, and ammunition. They also found an empty speed loader on a desk. Both the Smith and Wesson revolver and the speed loader could carry six bullets when loaded. The appellant’s father (who was away at the time of the shooting) was the registered owner of the firearms. His evidence was that he always kept the revolver, and the speed loader loaded with six bullets, locked in the safe. The presence of the empty speed loader on the desk suggested that the safe had been accessed and six bullets loaded into the revolver and spent.
The relationship between the appellant and Mr Taylor
There was a history of animosity between the appellant and Mr Taylor, arising from Mr Taylor’s sexual relationship with the appellant’s partner in early 2019 when the appellant was in custody for an unrelated matter. Mr Taylor alleged that the appellant made threats to harm him via phone calls and SMS messages. The appellant knew where Mr Taylor lived.
The prosecution also relied on statements made by the appellant in prison calls, said to constitute indirect or implied admissions, to suggest evidence of motive and context. In one recorded prison telephone call on 24 January 2020, the appellant said, in relation to home detention release, ‘oi, get me an address, I’m going to fucking finish the job, fuck it’. On 26 January 2020, he said to his partner, ‘what, you think I don’t want to be here? I had to fucking do it’.
The forensic evidence
Five of the six bullets fired during the shooting entered the house at Eton Drive. Three went through the lounge room window. The fourth went through the wall unit in front of the window, into the study and then through the two walls. The fifth went through the window to the third bedroom and landed on Mr Taylor’s bed. The sixth became lodged into the external brickwork. Police did not locate any shell casings.
Mr James Callado of the Forensic Response Section of SAPOL gave evidence at trial that the Smith and Wesson firearm was a model 686 double-action revolver, chambered to fire .357 magnum centrefire rounds. It was able to hold six rounds. Mr Callado found the firearm to be in good working order and said that the chances of an accidental discharge were unlikely.
Mr Callado’s evidence was that each projectile could be a 9mm or .357 or .38 calibre bullet. He was unable to conclude whether the bullets had been fired from the Smith and Wesson revolver. The evidence at its highest was that the projectiles seized from Eton Drive were capable of having been fired from it.
The CCTV footage
The police seized CCTV footage from Harvest Court. Its field of vision incorporated the outside perimeter of the premises, including the front door. The footage showed a vehicle parking at the premises at 11:07pm. The appellant exited the vehicle a minute later, carrying a black backpack over his shoulder. He unlocked the front door and entered the premises. He was wearing blue clothing. Another man followed him into the premises. At 11:21pm, the other man exited the front door and returned to the vehicle. At 11:23pm, the appellant exited the front door with the black satchel over his shoulder, wearing blue shorts, a blue cap and a blue t-shirt. There was a protrusion in his t-shirt, adjacent to his waist. The appellant got into the vehicle which then drove away.
At 11:52pm, the vehicle returned to Harvest Court and stopped in front of the driveway. The appellant exited the vehicle and entered the premises, wearing the same clothing as depicted in the earlier CCTV footage. The CCTV footage then shows the appellant exiting the front door at 11:58pm, wearing a singlet and different shorts, but still wearing the same blue cap.
The appellant’s clothing
Mr David Park was living with the appellant at Harvest Court at the time of the shooting. He gave evidence that on 14 January 2020, he saw the appellant as he was leaving Harvest Court after 6:00pm. Mr Park described the appellant as wearing red pants and a red jacket with a zip. He had difficulty in describing the jacket but said that it was ‘like an Adidas pants and jackets’. Mr Park also identified that the appellant was wearing a t-shirt but could not identify the colour. He did not see the appellant again that day.
Mr Park said that the following day, after 5pm, he saw these same clothes in the washing machine at Harvest Court. The clothes were wet. Mr Park also described seeing ‘like a pair of gardening gloves’ in the washing machine. He said that these gloves were grey on the palm side, but he could not remember what was on the other side, nor whether there was any branding on them.
Another occupant of the house, Mr Jason Haseldine, gave evidence that he used gloves for work and would, from time to time, wash them. In re-examination, he said that the gloves he used were Snap-on brand mechanic’s gloves. He was not asked what colour they were, nor when he last washed them.
In cross-examination, it was put to Mr Park that the appellant was ‘in fact wearing blue shorts and a blue t-shirt’. However, Mr Park said, ‘from … memory it was red’. He agreed that the appellant may have been wearing a baseball cap.
The prosecution address in relation to the clothes
In closing, the prosecutor identified the clothes in the washing machine as a piece of circumstantial evidence on which the jury could rely to convict. With an emphasis on the CCTV, the prosecutor outlined that the appellant returned to Harvest Court, before changing into a singlet top and a different pair of shorts. The prosecutor then pointed to evidence of Mr Park finding the clothes worn by the appellant in the washing machine the next day.
The summing up
The trial judge gave the following directions in relation to the evidence of the washed clothing, the treatment of which concerns this appeal:
Members of the jury, in combination with Haseldine's evidence, the prosecution invite you to consider that the accused has removed his clothes and put them in the washing machine, along with some gloves, in order to distance himself from the shooting; that is, the prosecution case is that he is concealing evidence that may connect him to the shooting.
The prosecution relies on this evidence as evidence of his guilt, so you need to consider what inferences you draw from the combination of Haseldine's evidence and the CCTV footage.
First of all, you may not take this into account in order to draw an inference of guilt, unless, having regard to all of the evidence in this case, you are satisfied that there is no explanation of the conduct of the accused other than a realisation of guilt on his part.
An accused person may behave in a way that at first sight is suggestive of a realisation or awareness of guilt for reasons other than a consciousness of guilt. For example, panic, a wish to avoid being implicated, or because he was guilty of some lesser offence or had some lesser role. This kind of action may only be used as evidence of a consciousness of guilt if you are satisfied it points beyond a reasonable doubt to that; that is, to consciousness of guilt of the charges that he is charged with.
Members of the jury, before you could use this evidence in any way, you would need to be satisfied that the clothes Mr Haseldine found in the washing machine were the same clothes he was wearing when he returned to the house. You would need to find that the gloves in the washing machine were not Haseldine's gloves. Sorry, I misspoke then. You would need to be satisfied that the clothes that Mr Park found in the washing machine were the same clothes that he says that he was wearing earlier that day. Sorry, were the same clothes he was wearing when he returned to the house, You would need to find - I am just repeating myself - that the gloves in the washing machine were not Mr Haseldine's gloves in light of the evidence that he gave that he did have gloves, that he did have a clean set and that he did wash them from time to time. You would need to discount that the accused may have changed his clothes when he returned for that six-minute period between 11:52 and 11:58 p.m. for perfectly innocent reasons.
The other important matter is that you would have to discount that he may have changed his clothes because he was aware of what occurred, but did not actually fire the shots. This is not the defence case. But, members of the jury, in the context of telling you about the elements of the offence, you need to be satisfied that he is the person that fired the shots. If someone else fired the shots, even if he was present when those shots were fired, he is not guilty of these charges.
…
So when you consider what you make of this evidence, if you find that he came home and put his clothes in the washing machine, and they are the same clothes that he was wearing when Mr Park saw him earlier, then you would need to consider whether or not he was doing that because he was aware of what had occurred because he may have been present when someone else fired those shots. You will need to consider the evidence that he arrives earlier with another man and that he leaves that premises with that person, that he returns at 11:52 pm. In company of another person. If he changed and washed his clothes because he was aware of what occurred and was present when the shots were fired, then that supplies no evidence that implicates him in the charges that you are considering…
Following an exchange with counsel in the absence of the jury, the judge then gave further directions, as follows:
Members of the jury, firstly, you would need to be satisfied, before you could rely on the clothes found in the washing machine as being evidence that the accused has attempted to wash his clothes and gloves, that the clothes found by Mr Park in the washing machine were the same clothes that the accused was wearing when he returned to Harvest Court at 11:52. If the clothes in the washing machine were Mr Dennerley’s, but different to the clothes he had on when he returned at 11:52, then Park's evidence as to what he found is irrelevant.
Further, if the clothes in the washing machine were not put in the washing machine when he returned home at 11:52, there is no connection, or no relevant connection, between the clothes in the washing machine and the gloves in the washing machine, and I direct you if that's what you found, to ignore the evidence of the gloves. it is only relevant if the clothes and the gloves were put in the washing machine when he returned at 11:52 as seen on the CCTV footage.
You need to bear in mind, members of the jury, Mr Park's evidence was that when he saw Mr Dennerley at some point after 6 p.m. on 14 January, that he said he was wearing a red top and red shorts and did not know what colour the T-shirt was. When he removed the clothes the next day, he said he removed red clothing and could not recall what the T-shirt was.
You know that the accused was not wearing red clothes at 11:52 when he returned to the property. For the clothes that Park located to have any relevance in this trial must mean that he was mistaken about the colour of the clothes, the colour of the shorts, that he saw him wearing at some point after 6 p.m., and was mistaken again when he removed those clothes from the washing machine the next day.
…
So Mr Park's evidence is that he wasn't wearing blue clothing, that he was wearing red, and that's what he took out of the washing machine. If you cannot make a finding that he was mistaken about the colour, then you would ignore this evidence. You would put it to one side and you would not have any regard to it in the context of this case.
The appeal
The first complaint is that Mr Park’s evidence of the appellant’s clothes having been washed was irrelevant and was consequently admitted in error. The complaint that the evidence does not meet the threshold of relevance depends on the observations that:
·the CCTV footage at Harvest Court shows the appellant to be leaving at 11:23pm and returning at 11:52pm, on both occasions wearing blue shorts, a blue cap and a blue t-shirt;
·by contrast, Mr Park described the appellant’s clothes that day, which he then saw the next day in the washing machine, as ‘red pants’ and a ‘sports jumper’ with a zip, ‘like an Adidas pants and jackets’. He was not able to say what colour the t-shirt was.
That is to say, with the exception of the t-shirt, both the description and colour of the clothing Mr Park said he saw on the appellant, and then in the wash, differed markedly from the clothing apparent in the relevant CCTV footage.
The prosecution case with respect to the clothing started from the observation, apparent on the CCTV footage, that the appellant changed his clothes between arriving home at 11:52pm and then going out at 11:58pm. The evidence of Mr Park constituted circumstantial evidence that the appellant had put his clothes in the washing machine, along with the gloves, to wash away evidence of gunshot residue on his clothing. It was evidence that tended to indicate a consciousness of guilt. Mr Park’s description of the nature and colour of the clothing merely affected his reliability. In any event, his description of the t-shirt did not extend to its colour.
The appellant submitted that Mr Park’s evidence did not tend to show that the clothing the appellant allegedly wore during the shooting was the same clothing then seen in the washing machine. Neither did it establish that the t-shirt the appellant was wearing was the same as found in the washing. Any such inference would require impermissible speculation: first, that it was the same t-shirt and second, that it was placed there after the offence. For that reason, it was either irrelevant, or of so little relevance as properly to be considered irrelevant.
In R v Garner; R v Webb, this Court explained:[1]
Evidence is of probative value (relevant) if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. As the probative value of evidence will vary depending on the issue that it is adduced to prove, two interrelated questions naturally arise for consideration. First, for what purpose is the evidence led and, secondly, to what fact in issue, does the evidence go to prove (or disprove)?[2]
(Footnotes in original)
[1] R vGarner; R v Webb [2021] SASCA 68 at [24].
[2] R v W, CT [2019] SASCFC 18 at [30].
The Court there observed that in cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case. It may be relevant where it bears upon an assessment of the probability of the existence of a fact by assisting in the evaluation of other evidence.[3] As to the determination of whether it does so, it is critical to distinguish between the capacity of a piece of evidence and the weight to be accorded to it:[4]
The task of determining the admissibility of evidence is one to be carried out by the trial judge, at the commencement of trial, or at least prior to the receipt of all of the evidence.[5] As such, the task must be understood as one that is distinct from the function of the trier of fact in determining the ultimate weight to be afforded to the particular item of evidence. While the task may permit some consideration by the trial judge of matters such as the likely or inherent credibility or reliability of the evidence, and the competing inferences that might be available, the focus of the task is upon the probative capacity of the evidence.[6] That is, the focus is on the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact. The task involves consideration of what is open for the jury to conclude, not what they are likely to conclude.[7]
(Footnotes in original; emphasis in original)
[3] R vGarner; R v Webb [2021] SASCA 68 at [25]-[26].
[4] R vGarner; R v Webb [2021] SASCA 68 at [27].
[5] Elrick v The Queen [2021] SASCA 13 at [42].
[6] Elrick v The Queen [2021] SASCA 13 at [42].
[7] Imm v The Queen (2016) 257 CLR 300 at [28] (emphasis in original).
Post-offence conduct is a species of circumstantial evidence, the relevance of which, in its capacity to support an inference of guilt, is drawn from human experience.[8] The trial judge’s assessment of the probative capacity of such evidence extends to whether the evidence is capable of being seen by the jury as being related to the crime. Then, however:[9]
As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact‑finding role.
[8] R v Burns (2009) 103 SASR 514 at [80] (Kourakis J).
[9] R v White [1998] 2 SCR 72 at [27], quoted with approval in R v Baden-Clay (2016) 258 CLR 308 at [73].
Assessed against the whole of the evidence, the evidence of the appellant’s clothes being washed was relevant to the prosecution’s circumstantial case that the appellant was the shooter. It was established objectively that the appellant changed his clothes between his return home at 11:52pm and going out again at 11:58pm. It was open to the jury to infer, against that background, that the clothes in the washing machine were the appellant’s and that they had been put in the wash after the shooting. It was also open for the jury to infer that the appellant’s reason for washing his clothing extended to a decision to wash a pair of gardening gloves.
Mr Park’s description of the clothing and his evidence as to its colour did not render the evidence incapable of being seen as related to the events of the crime in this way. It was for the jury to assess the weight it would give this evidence, including by assessing Mr Park’s reliability, given the different descriptions. It was for the jury to decide, based on the evidence as a whole, which incorporated those differences, whether the evidence of the clothes in the washing machine was related to the shooting.
This was not a case where the post-offence conduct constituted discreditable conduct, such as lies or flight. Taking the example of a lie, the High Court in Edwards v The Queen[10] observed that the telling of a lie may be considered together with all of the evidence, and for that purpose does not have to be proved to any particular standard of proof.[11] ‘The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt’.[12] The Court recognised, however, a risk that without further explanation, the jury might decide that a lie was told with a consciousness of guilt, and then use that conclusion to corroborate some part of the evidence that led to that finding. To that end, the lie should be precisely identified, together with the circumstances indicating it constitutes an admission against interest:[13]
And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence…
(Footnotes omitted)
[10] (1993) 178 CLR 193.
[11] Edwards v The Queen (1993) 178 CLR 193 at 210.
[12] Edwards v The Queen (1993) 178 CLR 193 at 210.
[13] Edwards v The Queen (1993) 178 CLR 193 at 211.
The recognised risk is that the jury may, naturally enough, reason that the telling of a lie can only be because of a consciousness of guilt.[14] Further, this reasoning is capable of applying to other forms of post-offence conduct.[15]
[14] See R v Curran (2008) 100 SASR 71 at [42] and the cases cited therein.
[15] R v Wildy (2011) 111 SASR 189 at [26].
In the present case, the act of washing clothes in the circumstances presented by the evidence might be thought to be unusual, and more so by the inclusion of gloves in the wash. However, washing is generally not understood to be a discreditable activity. It did not carry the same danger of prejudiced inference as is understood to attach to conduct such as lies or flight. There was no requirement for a direction of the kind contemplated in Edwards. In R v Adamson, Doyle J observed with respect to post-offence conduct that similarly had no inherently discreditable character:[16]
I observe in passing that to characterise this post-offence conduct in the manner contended for by the prosecution involved a form of what is sometimes referred to as ‘consciousness of guilt’ reasoning, or a form of implied admission. However, it does not follow that any special direction or warning was required about the use to be made of the evidence, or otherwise singling this evidence out from the other circumstantial evidence in the case. As this Court made plain in R v Wildy,[17] such a warning may not be necessary, and indeed may be problematic, in circumstances, such as the present, where the prosecution merely presented the evidence as an item of circumstantial evidence which was more consistent with the actions of a guilty man than that of an innocent one; and where the evidence was easily understood, did not contain any of the hidden dangers that might sometimes be associated with other post-offence conduct (such as lies), was not inherently discreditable and was not part of a prosecution case that was wholly or substantially reliant upon post‑offence conduct. In any event, any such direction or warning was expressly eschewed by the parties below, and no complaint has been made upon appeal as to the absence of such direction or warning.
(Footnote in original)
[16] R v Adamson [2018] SASCFC 114 at [111] (Doyle J, Vanstone and Lovell JJ agreeing).
[17] R v Wildy (2011) 111 SASR 189 at [33]-[37]; see also Dodd v Western Australia [2014] WASCA 13 at [104], [119]-[140].
The trial judge gave comprehensive directions on the topic of Mr Park’s evidence. These are set out above. The supplementary directions mapped the considerations the jury would need to bring to account in determining whether the conduct indicated by the evidence was related to the crime and what weight to give it. If anything, those directions confined the possibilities in a manner favourable to the accused. They extended to saying that if the jury could not find that Mr Park was mistaken about the colour, it should ignore the evidence. This set to one side other possibilities (such as the appellant putting on and then taking off his red jacket and pants while away from Harvest Court). There can be no realistic possibility that the evidence might have been misused.
Conclusion
The evidence was relevant. It was capable of indicating a consciousness of guilt on the part of the appellant. Whether it did so, and the weight it should be accorded given the descriptions of style and colour that Mr Park gave, different as they were from the clothes recorded by the CCTV footage, were matters for the jury. In this, the jury was aided by comprehensive and prudent directions that were favourable to the appellant. The appeal should be dismissed.
1
13
1