Dennerley v The Queen

Case [2022] SASCA 92

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

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Dennerley v The Queen [2022] SASCA 92
Case
[2022] SASCA 92
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant for acts endangering life or person, specifically a shooting incident. The prosecution alleged that the appellant fired six bullets at the complainant's residence. The core of the appeal revolved around the trial judge's handling of evidence relating to the appellant's clothing, particularly the discrepancy between the appellant's attire as observed by a witness and as captured on CCTV footage.

The legal issues before the court were whether the evidence concerning the appellant's clothes being washed ought to have been excluded as irrelevant, whether it should have been left to the jury as evidence of a consciousness of guilt, and whether the jury should have been directed to disregard this evidence. The court was required to consider the admissibility and probative value of this evidence in the context of the overall prosecution case, which included evidence of a firearm found at the appellant's residence and recorded prison calls suggesting motive and admissions.

The court reasoned that the evidence of the appellant's clothing was relevant and capable of indicating a consciousness of guilt. It held that the discrepancies in the descriptions of the clothing, as between the witness and the CCTV footage, were matters for the jury to consider when assessing the weight to be given to the evidence. The trial judge's directions to the jury were found to be comprehensive and favourable to the appellant, guiding them on how to consider the evidence and its potential implications. The court concluded that there was no realistic possibility that the evidence could have been misused by the jury.

Consequently, the appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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. BackgroundThe 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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