Fowler v The Queen
[2019] SASCFC 153
•18 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
FOWLER v THE QUEEN
[2019] SASCFC 153
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
18 December 2019
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF GUILTY KNOWLEDGE
Appeal against conviction of four offences committed during a home invasion.
In the early hours of the morning of 22 March 2017, two men entered the home of Coulls Snr, assaulted him and his son, and took inter alia a Kawasaki motorcycle, a motorcycle helmet and a gold ring. During the home invasion, each of the two men had a rifle and one or both pointed his rifle at Coulls Snr and Coulls Jnr. Coulls Jnr gave evidence that one of the men was wearing a “scary” aqua or green coloured full face mask.
On 24 March 2017, police officers on patrol happened to see Fowler, at the home of a drug dealer, with the above motorcycle. Police arrested Fowler and he said “don’t leave my missus without a phone”. Police inspected the phone and found inter alia images of a man wearing a mask matching the mask described by Coulls Jnr holding and pointing a rifle as well as images of a naked unmasked man pointing a rifle.
The four Grounds of Appeal were (1) the verdict was unreasonable; (2) the reasons of the Judge were inadequate; (3) the Judge incorrectly found that the appellant’s request to retain the seized phone was due to a “consciousness of guilt” of the charge(s) before the Court; and (4) the Judge erred in making certain specific findings.
Held, per Peek J (Bampton and Lovell JJ agreeing), dismissing the appeal:
1. There was a good deal of circumstantial evidence connecting Fowler with male one who had worn the green “scary” mask during the home invasion. It was open to the Judge to find on all of the evidence that Fowler was the man in the naked man and masked man images. M v The Queen (1994) 181 CLR 487; Filippou v The Queen (2015) 256 CLR 47 discussed.
2. Reasons will not be inadequate merely because they do not include “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion” nor will they be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. DL v The Queen (2018) 356 ALR 197; R v Rendell (2018) 131 SASR 201; Harwood v Police (1998) 71 SASR 300; Papps v Police (2000) 77 SASR 210; R v Ricciardi (2017) 128 SASR 571; R v Sabet [2018] SASCFC 18; R v Keyte (2000) 78 SASR 68; Fleming v The Queen (1998) 197 CLR 250 discussed. When there is a circumstantial prosecution case with no positive defence presented, the Judge should consider what hypothesis(es) consistent with innocence may exist and, if they are to be rejected, must give reasons for such rejection. The Judge’s approach was consistent with R v Becirovic [2017] SASCFC 156. AK v Western Australia (2008) 232 CLR 438; R v Becirovic [2017] SASCFC 156 discussed.
3. The Judge’s finding that “the accused knew what was on that mobile phone, and his intention was to avoid that mobile phone being seized by police” was not to find that Fowler was conscious of being guilty of the charge(s) before the Court.
4. No miscarriage of justice arises from the Judge’s findings.
Criminal Procedure Act 1921 (SA) s 158(2), referred to.
AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 356 ALR 197; Filippou v The Queen (2015) 256 CLR 47; Lane v The Queen (2018) 357 ALR 1; R v Becirovic [2017] SASCFC 156, discussed.
Barca v The Queen (1975) 133 CLR 82; Fleming v The Queen (1998) 197 CLR 250; Harwood v Police (1998) 71 SASR 300; M v The Queen (1994) 181 CLR 487; Papps v Police (2000) 77 SASR 210; Peacock v The King (1911) 13 CLR 619; R v Hillier (2007) 228 CLR 618; R v Keyte (2000) 78 SASR 68; R v McKenzie [2001] SASC 279; R v Ricciardi (2017) 128 SASR 571; R v Sabet [2018] SASCFC 18; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; The Queen v Baden-Clay (2016) 258 CLR 308; Weiss v The Queen (2005) 224 CLR 300, considered.
FOWLER v THE QUEEN
[2019] SASCFC 153Court of Criminal Appeal: Peek, Bampton and Lovell JJ
PEEK J: Following a trial by Judge alone before Schammer DCJ, the appellant, Desmond Fowler (Fowler) was found guilty of the following charges which are based on a “home invasion” and appear on the Information thus:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Desmond Fowler on the 22nd day of March 2017 at Highbury, entered or remained in the place of residence of Russell Malcolm Coulls as a trespasser, with the intention of committing an offence therein, namely assault.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Desmond Fowler knew of the other’s presence or was reckless about whether anyone was in the said place.
It is further alleged that Desmond Fowler committed the offence in company with another person.
Second Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Desmond Fowler on the 22nd day of March 2017 at Highbury, caused harm to Russell Malcolm Coulls, intending to cause him harm.
It is further alleged that Desmond Fowler used or threatened to use an offensive weapon, namely a rifle, to commit or when committing the offence.
It is further alleged that Desmond Fowler committed the offence in company with another person.
Third Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Desmond Fowler on the 22nd day of March 2017 at Highbury, assaulted Daniel Peter Coulls.
It is further alleged that Desmond Fowler committed the offence in company with another person.
Fourth Count
Statement of Offence
Aggravated Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Desmond Fowler on the 22nd day of March 2017 at Highbury, dishonestly dealt with property, namely a Kawasaki motorcycle and a gold ring, without the consent of Russell Malcolm Coulls, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.
It is further alleged that Desmond Fowler committed the offence in company with another person.
It should be noted that counsel for the appellant accepts that the trial was conducted on the basis that Fowler was charged with a joint enterprise with a second unknown male and that, as to each of the counts, it was sufficient to prove that one or other of the two males performed the physical acts alleged (being within the scope of the joint enterprise). Indeed, there was really only one issue at trial: was the appellant one of the two males? If yes, he was guilty of all four charges. If no, he was guilty of none.
INTRODUCTION
As at March 2017, Russell Coulls (Coulls Snr) and his son Daniel Coulls (Coulls Jnr) (sometimes referred to as the complainants) were living at 47 Amber Road, Highbury. On the night of 21 March 2017, Coulls Snr went to bed in his room at about 8.00 pm. He had been drinking scotch before retiring and may have continued to drink in bed; he had no memory of what time he fell asleep. Coulls Jnr gave evidence that he went to bed between 6.00 pm and 8.00 pm and that at this time his father was drinking scotch and was in a state of inebriation.
Coulls Snr gave evidence that he awoke in the early hours of the morning of 22 March 2017 to see two men coming into his bedroom. One man stood at his right-hand side and held a gun to his neck; the gun had a black barrel with a wooden stock and was around 800mm long. This man will be referred to as “male one” (and on the prosecution case was the appellant). Coulls Snr described male one as being dressed in camouflage coloured clothing and wearing a cap, gloves and a mask or bandana, which was ugly looking and had quite a bit of white in it. He estimated his height at about five feet seven inches and thought he was reasonably fit and quite strong. It was an agreed fact at trial that Fowler’s height is 174 cm (which equates to five feet eight and a half inches).
Coulls Snr gave evidence that the other man (“male two”) stood at the end of the bed holding a similar gun. He did not pay much attention to male two but thought he was dressed similar to male one and slightly shorter and slimmer.
There was a short struggle during which Coulls Snr dragged male one’s mask down and felt his facial hair, which he described as “a light beard”. Coulls Snr was then repeatedly bashed, initially by male one, until he fell unconscious; he thought that both joined in bashing him. Coulls Snr remembered that, before becoming unconscious, he saw his son come into the bedroom and be struck by male two; and he also heard one of the men taking coins from his tallboy and putting them in his jacket pocket.
Coulls Jnr gave evidence that he woke up to the sound of thumping noises, yelling and his father moaning. He got up and walked towards his father’s room and saw male two pointing his gun at his father while male one beat him. As Coulls Jnr approached the bedroom, male two pointed his gun at him instead whereupon Coulls Jnr walked backwards with his hands up telling male two not to shoot. He was then ordered to lie down at the foot of his father’s bed. From this position he heard male one accuse his father of molesting a young girl.[1] On leaving the bedroom, male one kicked Coulls Jnr. Both males were heard rummaging throughout the house before leaving.
[1] This matter is discussed below.
Coulls Jnr described male one as: in his mid-30s, based on his voice; of average height and a bit stockier than male two; and wearing a “scary” aqua or green coloured full face mask that might have had horns depicted on it.[2] He described male two as: slightly shorter than five feet eight inches or five feet nine inches; of average build; aged about 40 years; having black, receding hair and facial hair; and wearing dark clothing and a rolled up mask or bandana.
[2] For more detail as to this important matter, see paragraphs [37]-[38] below.
Both complainants in their evidence referred to comments by male one concerning an allegation against Coulls Snr concerning a girl; this matter is dealt with below.
Coulls Jnr later sought help from a neighbour who called triple-0 at about 3.00 am. Coulls Snr was taken to hospital where he spent some six days. He had a split lip, broken teeth and required numerous stitches for his head wounds.
When Coulls Snr was discharged, he was able to confirm that a number of items of apparent value had been taken including a Kawasaki 250cc motorcycle; a distinctive motorcycle helmet and gloves; a camera; binoculars; the contents of his jewellery box amongst which was a ring engraved ‘RMC’; and loose change. The men had also gathered together a number of more bulky items of apparent value including a chainsaw, a generator, an arc welder, a hammer and a torch but had abandoned these items for whatever reason.
There are some inconsistencies as between the evidence of Coulls Snr and Coulls Jnr (the second complainant) and the Judge preferred the latter:[3]
390. The second complainant was an impressive witness, who gave his evidence without embellishment and in a straight forward manner. I consider he was generally both a reliable and credible witness.
391. The second complainant gave evidence that when the first complainant went to bed on 21 March 2017 he had been drinking Scotch and was affected by alcohol. I accept that evidence.
392. For those reasons, insofar as there are inconsistencies in the evidence of the complainants on matters pertaining to the lighting and the appearance of the offenders and/or the firearms used by the offenders, I prefer and accept the evidence of the second complainant.
[3] R v Fowler [2019] SADC 100.
The events of 24 March 2017
The next relevant events occurred two days later, on 24 March 2017.
The evidence of Possingham
The prosecution witness Possingham gave evidence that as at 24 March 2017, he was both an active user of heroin and a dealer in it; he had sold heroin to Fowler (in the presence of Ms Vickey Michailidis) (Ms Michailidis) on at least three previous occasions, each time of about $100 worth. As to the events of 24 March 2017, he commenced his evidence in the following fashion:
Q. You were home the day he was arrested at your place.
A.Yes, I was, yeah. It was about 8.30 in the morning, approximately. Just he and – ‘he’ being Des, and Vicky arrived to my place but this time they weren’t in a car, they were on the motorbike. It was a Kawasaki, from memory. They came inside and, yeah, they were there for the same purpose but, you know, with a - with the addition of a bit of a story to tell. Des, Des came in, showed me some photographs on a mobile phone of him holding a rifle, was one, another one of a mask, a mask on, the same sort of pose, holding a rifle, yeah, a picture of sort of shooting a rifle kind of thing. And went on to say that he had, the night beforehand had - had basically beaten the crap out of a guy who they accused or thought was a paedophile. And from there the story went on that he used one of the guns that was, you know, taken in the photograph to belt the guy, apparently. And that the, the fellow that he had beaten was, you know, fairly, fairly badly beaten up and as a result of that Des was covered in blood, in fact so much so that his partner was unable to recognise him. From there it was pretty much - I had some, some other friends that were with me on that morning, the discussions were, were sort of made across - across the group of us more so than just me but it was over and done with sort of fairly promptly. He showed me the bike and said that he was sell - selling it, that was his intention. From there they bought some heroin off of me and they went to the bathroom to use that and to get cleaned up and what have you. …
The Judge appreciated that there was a definite esoteric knowledge demonstrated by Possingham’s evidence. Thus she stated:[4]
412. Mr Possingham had esoteric knowledge of the circumstances of the offending, namely it was conducted against an older man, who was thought to be a paedophile, in his own home. He knew the ring and the motorcycle came from that home. He knew the victim had been badly beaten with a gun.
413. I agree with the submission made by the prosecutor that he must have obtained this information from someone who was at the Highbury home at the time of the offending. Further, I accept that the accused’s presence at the Milford Avenue property, with the motorcycle, that same day, supports a finding that Mr Possingham learned those details from the accused.
[4] R v Fowler [2019] SADC 100.
Nevertheless, a number of inconsistencies emerged in the course of Possingham’s evidence and, while the Judge accepted his evidence that he had previously sold heroin to Fowler, she was not prepared to act on his evidence concerning the events of 24 March 2017.
The evidence of police officers White and Donaldson
At about 11.25 am on 24 March 2017, police officers White and Donaldson were on patrol. By way of an “intel run”, they drove past Possingham’s premises (knowing him to be a drug dealer). They there happened to see the appellant in the front yard, apparently working on a motorcycle. Donaldson stated:
A. So as we have sort of come past the house the house is on the eastern side of me so off to my left, I was able to observe a male person who was sort of hunched, crouching down at the base of the hip, sort of looking underneath the seat area of the motorcycle, of a motorcycle which was in the driveway.
Donaldson approached the appellant and asked him about the motorcycle. At the same time, White was running a check, discovered it to be stolen, and communicated this to Donaldson. Upon hearing this, the appellant said, “I bought it for $500, that’s the last time I trust black fellas.”
It would appear that this was more an attempt at humour than a serious explanation. There was really no possibility that Fowler had trusted “black fellas”, or anyone else, on the matter of the motorcycle not being a stolen vehicle since there were no documents of registration or ownership and, of high importance, the ignition system had been seriously butchered so as to get the bike running,[5] a most obvious sign of a stolen vehicle. As was observed on the hearing of the appeal:
PEEK J: To be realistic in all the circumstances that really appears to be a bit of a facetious remark rather than a serious explanation, doesn’t it, ‘It’s the last time I trust Aboriginals’.
MR GRAHAM: Not really persuading anyone. Her Honour was entitled to find there was no explanation given by Fowler as to the circumstances in which he came into possession of that motorcycle.
[5] Coulls Snr gave evidence that when the motorcycle was returned he found that the ignition system had been very badly damaged: “the lock had been pulled to pieces and some fairing had been taken off the bike, and the ignition switch, it had been damaged, and a person I know on Smart Road, Modbury, not far away from me, sells motorbikes and knows a lot about them said there’s about - if he did the work to fix all the things that were damaged on it, it would be about $3,000”.
In any event, it was clear that the motorcycle and the helmet (of which the appellant also had possession) were those stolen from Coulls Snr and both were seized. The appellant was arrested for illegal use of the motorcycle and a video camera was activated to record his arrest rights being given.[6]
[6] The use to which this evidence could be put is discussed below.
At this time Fowler called out to his partner Ms Michailidis to bring him “a smoke” whereupon she came out of the house carrying his bag. It presumably contained his cigarettes but it also contained a mobile phone he had been using and Fowler can be heard saying to police, “Don’t leave my missus without a phone”.[7] White then briefly inspected the contents of that phone and found images of a person holding a rifle with a mask over his face. He naturally seized the phone (which became Exhibit P26 at trial).
[7] The significance and proper use of this statement by Fowler is considered under Ground 3 of Appeal.
The stolen ring engraved ‘RMC’
Detective Brevet Sergeant Dring gave the following evidence:
Q. On 28 March did you attend at 7 Milford Avenue, Salisbury North.
A. Yes, I did.
Q. Did you speak with a Steven Possingham on that day.
A. Yes, I did.
Q. Did he provide you with a couple of things.
A.He did, he provided me, one, with a statement, he provided me with just two items, which one was a gold ring with the initials ‘RMC’ on the front of it, as well as a jacket or a jumper.
GROUND 1 – UNREASONABLE VERDICTS
I apply the precepts as stated by the High Court in M v The Queen.[8] The Court considered those precepts in the context of an appeal against conviction following a trial by judge alone in Filippou v The Queen.[9] Gageler J observed:[10]
82. Under the first limb, which refers to the ground that a verdict “is unreasonable, or cannot be supported, having regard to the evidence”, a trial judge’s ultimate finding of guilt must be set aside on the same principle as a jury’s verdict of guilt must be set aside. That is to occur if the Court of Criminal Appeal concludes on the whole of the evidence that it was not open to the relevant tribunal of fact, whether it be a jury or a trial judge, to be satisfied beyond reasonable doubt that the accused was guilty. The Court of Criminal Appeal will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt.
83. Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence.
[8] (1994) 181 CLR 487 (Mason CJ, Deane, Dawson & Toohey JJ). See also SKA v The Queen (2011) 243 CLR 400.
[9] There in the context of the common form criminal appeal provisions under s 6(1) of the Criminal Appeal Act 1912.
[10] Filippou v The Queen (2015) 256 CLR 47, 75–76.
The prosecution case against the appellant was essentially circumstantial. The appellant argued that it was not open to the trial judge to reject the hypothesis that the appellant was not present at the home invasion and that, between the time of that event and his arrest at Possingham’s premises, he had received the items of stolen property (being the motorcycle, the helmet and the ring engraved ‘RMC’) from male one or male two.
The firearms and photographic evidence
Both Coulls Snr and Coulls Jnr gave evidence that one or both of the two men, while standing, deliberately pointed a rifle at them. Understandably, neither could say much about the characteristics of the rifles. However, there was a good deal of circumstantial evidence connecting Fowler with male one who had worn the green “scary” mask during the home invasion.
Fowler’s previous access to firearms
Mr Daniel Burns gave evidence that he had lived with the appellant between shortly prior to Christmas 2016 and March 2017 and that during that time he had seen Fowler in possession of two different rifles, one being an air rifle. As to the air rifle, Burns gave evidence that he had been present when Fowler was firing the air rifle indoors and an impressive series of images was tendered which clearly showed numerous pellet holes or indentations in walls, curtains and so forth. The Judge accepted Burns’ evidence concerning Fowler’s possession of the air rifle.
Burns also gave evidence that Fowler also had a standard rifle as well as the air rifle, but in cross-examination he was shown to have previously made different statements as to matters of detail such that the Judge was not prepared to act on his evidence in this regard.
The images on the mobile phone (number ending 0369)
The evidence was that there were two mobile phone subscriptions held in the name of Ms Michailidis as at March 2017. One was for the phone seized from the appellant on 24 March 2017 (Exhibit P26) with a number ending 0369 and which had been registered on 14 March 2017. The other was for a phone later seized from Ms Michailidis on 12 April 2017 with a number ending 7879. Exhibit P30 records that from 15 March 2017 to 23 March 2017 there were numerous calls each way between those two phones and the Judge found that Fowler had been using the 0369 phone and Ms Michailidis had used the 7879 phone.
On examination of the 0369 phone seized on Fowler’s arrest, it was found to contain in total nine images which were reproduced in Exhibit P20 and (with the images’ provenance) may be summarised thus:
Date & Time Two images of a ‘naked man’ Three images of a ‘masked man’ Three images of Fowler sitting One image of a cat 20.3.17
7.19 pmReceived by 0369 phone from 7879 phone Received by 0369 phone from 7879 phone 20.3.17
9.08 pmCreated by 0369 phone 24.3.17
7.37 amCreated by 0369 phone
Importantly, the 0369 phone contained two tranches of images of a man standing and apparently carefully aiming a rifle at an unseen target.
The first tranche (of two photos received by the 0369 phone on 20 March 2017 at 7.19 pm) depicts a man naked down to at least the waist (the ‘naked man images’). In the first of these two images (which is of much better resolution than the second), the lower part of the face is obscured by the rifle stock but there is a strong resemblance between the face (including the receding hairline; the shape of the face and the forehead; the shape of the nose; the position, shape and closeness to the head of the ears) and otherwise his general physique to the other images in evidence which are agreed to have been taken of Fowler at 9.08 pm on 20 March 2017 (as well as to his arrest images later taken on 24 March 2017).
The second tranche (of three virtually identical images taken at 7.37 am on 24 March 2017) depicts a clothed man wearing a “scary” green mask (the ‘masked man images’) and again apparently carefully aiming the rifle at an unseen target. The rifle is more clearly depicted in this second tranche than in the first tranche; it is obviously a military bolt action rifle, having a full wooden stock (above and below the barrel), a sling fitted, and a large shrouding of the front sight.
Brevet Sergeant Timothy Brooks, a police officer stationed at Forensic Response Section, Forensic Services Branch, reported on only one of the three images of a ‘masked man’. He deposed in his affidavit (received by consent as part of Exhibit P31) thus:
8.In November 2015 I transferred to the Forensic Response Section (‘Ballistics’) of Forensic Services Branch where I am presently stationed.
9.My daily duties include the examination and testing of firearms and ammunition, and the examination of crime scenes at which firearms have been used.
…
11.The South Australia Police Forensic Response Section is an accredited laboratory for Firearm Examination and Identification, Marks Comparison and Scene Identification, by the National Association of Testing Authorities, Australia (NATA), certificate number 15256.
…
15.Item 24 consisted of a compact disc that contained five (5) images. I used image labelled IMG_20170324_073724.jpg to describe the firearm being held in this photograph.
16.This firearm appears to be a bolt action rifle, circa World War 2, with a timber stock, detachable telescopic sights and a shrouded front fixed sight. The shortness of the barrel would suggest it is a ‘Carbine’ model. Attached to the front of the stock is a barrel clamp from which a sling is attached.
17.On top of the barrel, in front of telescopic sight, is what appears to be a ‘carving’ of the wood creating a shallow ‘U’ shape. I checked the Ballistics Reference Library in an attempt to locate a firearm with this distinctive feature but was unsuccessful.
18.From this photograph I am unable to determine the make, model, or calibre of this firearm.
The Judge stated as to this evidence:[11]
501. Officer Brooks made observations as to the firearm depicted in photograph 3 of Exhibit P19. He described that firearm as being a bolt action rifle, circa World War II, with a timber stock, detachable telescopic sights and a shrouded fixed sight, and a telescopic barrel.[12]
[11] R v Fowler [2019] SADC 100.
[12] Brooks certainly did not assert that the rifle had a “telescopic barrel”; in fact there is no such creature.
Her Honour did not refer to paragraph 17 of Brooks’ affidavit (reproduced above). But as Brooks there correctly observed, there is an interesting finding in the masked man images that there has been a removal of some of the upper stock (just in front of the telescopic sight) of the rifle held by the masked man. This is of particular importance because, on close inspection of the rifle in the first of the two naked man images, one can see the same dip in the wood of the upper stock in exactly the same position. This unusual alteration, coupled with a number of other obvious close similarities between the rifle depicted in the two tranches, makes it highly likely that the “two” rifles in the masked man images and the naked man images are in fact one and the same. This matter was explored at the hearing of the appeal thus:
PEEK J: You also have to take into account para. 501[13] where Brooks makes it clear that the firearm or firearms depicted in those photographs are certainly not the air gun that Burns was referring to.
MR GRAHAM: Yes I did. I don’t think the prosecution ruled out at trial that it could have been an air rifle that was used in the home invasion, they suggested it could have been but it certainly seems that the air rifle wasn’t the firearm in those photographs.
PEEK J: And although her Honour seems to have difficulty in saying as to whether you have the same firearm in the two sets of photographs, albeit with the scope detached of course, I think the court can look at those photographs and look at the similarity of the firearms themselves, can’t we? It is very hard to find any inconsistency at all.
MR GRAHAM: No, I am not going to argue the point there. Relatively consistent apart from the scope.
PEEK J: Look at the sling, you see the fraying is exactly the same in the same spot etc.
MR GRAHAM: I didn’t notice any [fraying] but I was not going to be argue that the two firearms are inconsistent. There are a few similarities there. …
[13] A reference to the Judge’s reasons.
A further interchange on the same topic occurred a little later thus:
PEEK J: If you remember there was a ballistics report which dealt with a hollowing or taking out of a portion of wood that the expert was particularly interested in and if you look at Exhibit P19 -
MR GRAHAM: There is an indent in the photo that I agree is very similar, in the stock of the firearm, in front of where the scope is, that does appear to be consistent on both firearms, yes.
PEEK J: You already knew that, did you?
MR GRAHAM: Yes.
PEEK J: Right, then it’s the same firearm, isn’t it, almost certainly I would have thought.
MR GRAHAM: Her Honour didn’t find that.
PEEK J: No, I am not saying what her Honour found, I am saying from the point of view of the independent review of this court.
MR GRAHAM: I am not going to concede that but it is very similar, yes.
PEEK J: Thank you, you proceed. [Emphasis added]
Of course, in the three masked man images, the man is clothed but he is wearing a very distinctive “scary” green mask. As foreshadowed above, an important aspect of Coulls Jnr’s description of male one was that he was wearing a “scary” aqua or green coloured mask. His evidence in chief was that he “had a green mask on … like a scary Halloween mask type thing, full faced, demon looking”. And in cross-examination he said:
Q.You got a look at the male who was beating your father and it was him that was wearing the mask you described.
A. Yes.
Q. At what stage did you make the observation that he was wearing a mask.
A. As soon as I walked in the room the first time.
Q. When did you recognise its colour.
A. You know green when you look at green, you know red when you look at red.
Q. You noticed its colour as soon as you walked into the bedroom.
A. Yeah, pretty much yeah.
…
Q.I wanted to ask you some questions about the mask that the first male was wearing. Was it a mask that just covered his face or was it a mask that covered his entire skull.
A. The entire skull.
Q. So was it like a balaclava.
A.Yes, your full face latex-type mask, I suppose you buy from a costume shop or something. It covered the back of the head, the whole head.
Q. The whole of the mask was aqua or green.
A. Yes.
Q. So the front of the mask is aqua or green.
A. Yes.
Q. The back of the mask is aqua or green.
A. Yes, as far as I can remember.
Q. It was all one colour.
A. Pretty well, I think.
Q. Did it have any markings over the face.
A. I guess so but I couldn’t tell you exactly.
Q. Couldn’t say what colour.
A. Markings?
Q. Yes.
A. I think it might have had some horns on it; small.
Q.So when we’re talking about the horns, are you saying they’re drawn or little sticking up things.
A. No, they stick up.
Q. Like little ears.
A. Yeah, like horns.
Q. How far up did they stick.
A. Half an inch.
Q. Were they sort of on top of the head or on the forehead.
A. Forehead, top of the head. I didn’t really analyse it that well.
The Judge found as follows:[14]
548. I consider there was sufficient light in the first complainant’s bedroom and sufficient time during which the second complainant had male one under observation, to enable him to make the observations he described with respect to the mask being worn by male one. I accept therefore that such evidence is reliable and is not a product of reconstruction or of mistake or misapprehension on his part.
549. Photographs 4, 5 and 6 of Exhibit P19[15] depict a male person wearing what appears to be a full faced mask. It is green in colour, and matches the description of a ‘scary Halloween mask type thing, full faced, demon looking’. It is unclear from the photographs whether there are any horns protruding from the mask, although there does appear to be something raised and protruding from above the mask wearer’s left eye, which may possibly be a small horn. The second complainant’s description of the mask worn by male one is consistent with the mask depicted in those photographs.
550. The second complainant had more dealings with male two than male one. He described seeing male two’s face when he was wiping down the guns in the hallway. I accept the second complainant’s evidence that although he was, at this stage, lying on the floor in the first complainant’s bedroom, with his feet closest to the door, he was still able to see male two from this position, and that most of the lights in the house were on at this time.
551. I therefore find that the second complainant’s evidence as to his observations of male two at that time is both reliable and credible.
[14] R v Fowler [2019] SADC 100.
[15] Being the same images as those in images 3,4 and 5 of Exhibit P20.
The identity of the masked man pointing a rifle
The importance of all of the above is obvious and may be quickly summarised in the following propositions.
First, in the first tranche of the naked man images (received on the 0369 phone on 20 March 2017 at 7.19 pm), the man appears to be Fowler; and he is pointing a rifle in a deliberate aiming pose. Secondly, that rifle appears to be the same rifle that appears in the second tranche of the masked man images (taken on 24 March 2017 at 7.37 am). Thirdly, in the second tranche of the masked man images, the man is pointing a rifle in a deliberate aiming pose and is wearing a distinctive “scary” green mask which closely matches that described by Coulls Jnr as being worn by “male one”. Fourthly, all of these images (plus the three other images agreed to be of Fowler himself) were taken around the time of the home invasion on one of the two mobile phones registered to Fowler’s partner; and all were found on 24 March 2017 on one of those two phones being used by Fowler. Fifthly, Fowler was at that same time found in possession of the motorcycle stolen during the home invasion.
As a matter of understatement, it was well open to the Judge to find on all of the evidence that Fowler is the man depicted in the naked man and masked man images.
The “niece conversation”
A matter stressed by counsel under Ground 1 of Appeal was the fact that there was some evidence given by both complainants that during the home invasion male one said something about Coulls Snr having committed sexual misconduct with a 15-year-old girl and that, on one interpretation, suggested that she was the “niece” of male one.
Coulls Snr gave the following evidence:
A.He said something about - about a woman, a girl, young girl, something to do with a young girl.
Q. What did he say about a young girl, can you remember.
A. No, I said - not what he said - I know what I said to him.
Q. What did you say to him.
A.I said ‘Oh’ - I said ‘There's no, no young girl been here’ and I said ‘I think’ – ‘I think you got the wrong house mate and the wrong bloke’. In those terms, ‘You’ve got the’ - I definitely said ‘You’ve got the wrong house and you’ve got the wrong bloke. No’ – ‘No young girl of that age has been in this house’.
Coulls Jnr said in chief:
Q.What did you hear then happen between the man beating your father and your father, as you’re on the ground.
A.The man beating up my father kept saying something about a 15-year-old girl and it was his niece or something like that, yeah.
Q. What did he say about the 15-year-old girl.
A. ‘Do you like molesting’ - I can’t tell you exact words.
Q. What was the gist of it.
A. Basically ‘Are you having sex with 15-year-old girls’.
Q. Did you hear your father respond.
A. Yes.
Q. What did your father say.
A. He didn’t know anything about what they were talking about. … [Emphasis added]
Coulls Jnr said in cross-examination:
Q. You said the person hitting your father made some comments about a 15-year-old girl, he described the 15-year-old girl as his niece.
A. As far as I’m aware yes, I’m pretty sure that’s what I heard.
Q. That’s what he said.
A. Yeah.
The defence argument here essentially proceeded in the following steps.
-That at the date of the home invasion, Coulls Snr was on bail on a charge of indecently assaulting KM.
-That there was a defined relationship between male one and KM, namely that male one was her uncle.
-That there was a defined relationship between Coulls Snr and KM, namely a sexual relationship.
Upon this predicated basis, it was submitted that the motive (or partial motive) for the home invasion was male one wanting revenge for Coulls Snr’s sexual misbehaviour; and further, that Fowler was not KM’s uncle and therefore could not be male one.
I consider that this line of defence rests on foundations of sand for a number of reasons. First, the most critical step in the defence argument is the assertion that Coulls Snr was having a sexual relationship with the niece of male one. This aspect is alluded to only in the evidence of Coulls Jnr and it is obvious that he was in no way certain that the word “niece” was used at all (“it was his niece or something like that”). There are a number of possibilities here. One is that Coulls Jnr misheard a similar sounding but different word as “niece” (remembering that the words were spoken from behind the “scary” mask and with a gun trained on him at the time). Another possibility is that the word “niece” was used, but the girl referred to was supposedly the niece of someone who male one knew, or knew of. This might well involve male one having gained “information” or gossip from the grapevine – a well-known scenario of a story being told and retold, growing each time in detail and seriousness. There are many permutations of mistakes of house or identity that could have occurred.
There are, of course, other problems for the defence argument. If, as the defence theory requires, male one was the uncle of KM and was outraged at the thought of Coulls Snr having a sexual relationship with his 15-year-old niece, it would go without saying that he would have known the age of his niece and the nature of the allegations she was making. However, the fact of the matter is that KM was 17 rather than 15 at the time of the incident of which she complains. Further, the nature of her complaint was that she was working at a supermarket and, at Coulls Snr’s request, she showed him where a particular item he wanted to buy was kept on the shelves; whereupon he patted her on the bottom (on the outside of her clothes). KM described this as “not hard, it was like a pat. His hand moved upwards and hit the bottom of my cheek”. Of course, this allegation is serious enough, but it is very different to Coulls Snr having a sexual relationship with a 15-year-old, as male one was apparently suggesting during the home invasion.
In my view, the matter was one to bear in mind; but it really carried little weight when seen in the light of the whole of the evidence. The Judge did submit the matter to exhaustive analysis and came to that conclusion. Her Honour did not err in this regard.
Conclusion as to Ground 1 of Appeal
In any case depending on circumstantial evidence, a tribunal of fact cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of an accused. The task of this Court is to perform its own independent assessment of the evidence and decide whether a hypothesis consistent with innocence remained reasonably open on the evidence. Neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.[16] In my view, the prosecution case was strong and may be summarised thus:
[16] See generally: Peacock v The King (1911) 13 CLR 619, 634; Barca v The Queen (1975) 133 CLR 82; R v Hillier (2007) 228 CLR 618; The Queen v Baden-Clay (2016) 258 CLR 308, 323–324.
-Both complainants gave evidence that one or both of the two men deliberately pointed a rifle at them during the home invasion in the early morning of 22 March 2017 but could give little detail of either rifle.
-Coulls Jnr gave detailed evidence concerning a “scary” green mask that one of the men wore.
-Fowler was a heroin user[17] and Possingham was a heroin dealer. Fowler was found at Possingham’s premises on 24 March 2017 working on a stolen motorcycle just over two days after it was stolen.
[17] Burns, a housemate of Fowler between shortly prior to Christmas 2016 and March 2017, gave evidence that they took drugs including heroin together. Possingham, whose evidence was accepted by the Judge on this topic, gave evidence that he had sold heroin to Fowler on some four occasions in circumstances where Fowler apparently ingested the heroin on Possingham’s premises on the last of those occasions.
-Fowler gave no reasonable explanation for his possession of the stolen motorcycle.
-The ring engraved with the initials ‘RMC’ which had been stolen at the same time as the motorcycle was later handed to police by Possingham on 28 March 2017.
-When arrested on 24 March 2017, Fowler was in possession of a mobile phone which contained two tranches of images of a man standing and apparently carefully aiming a rifle at an unseen target.
-In the first tranche of images, the naked man appears quite similar to other images of a man seated at a restaurant (taken at about the same time and which are admitted to be of Fowler) in respect of: the receding hairline; the shape of the face and forehead; the shape of the nose; the position, shape and closeness to the head of the ears.
-In the second tranche of three photos (taken on 24 March 2017 at 7.37 am), the man is wearing a green mask which closely matched the description of the mask worn by male one given by Coulls Jnr.
-The man in each of the two tranches appears quite similar in general appearance and physique to Fowler.
-Fowler’s appearance as at 20 and 24 March 2017 is consistent (or not inconsistent) with the description by both victims of both male one and male two.
-The rifle depicted in each of the two tranches of images is distinctive, unusual and highly likely to be one and the same.
-At the time of his arrest on 24 March 2017, Fowler stated, “Don’t leave my missus without a phone” in an apparent attempt to keep the images referred to above from the police.
-Burns, a housemate of Fowler between shortly prior to Christmas 2016 and March 2017, gave evidence that Fowler was in possession of an air rifle during that time. The use of an air gun and the rifle that appears in the two tranches of images is not inconsistent with the evidence of the two complainants.
I consider that in all of the circumstances it has not been demonstrated that it was unreasonable for the trial judge to find beyond reasonable doubt that the appellant was one of the two persons present at the home invasion. Applying the precepts in M v The Queen,[18] I have no doubt on the evidence that Fowler was one of those two men. Ground 1 is rejected.
[18] (1994) 181 CLR 487.
GROUND 2 OF APPEAL – INADEQUACY OF REASONS
The appellant’s argument here is essentially that the Judge failed adequately to state the process of reasoning by which she rejected the defence hypothesis that the appellant was not one of the persons present during the home invasion.
There is no doubt that “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”[19] and, of course, reasons may be inadequate if the judge fails to explain a conclusion reached as to a significant factual or evidential dispute that constitutes a necessary step to the final decision of the case.[20] It is necessary that, when the reasons are read as a whole, the reasoning upon which the decision is based is revealed such that justice can be seen to be done.[21]
[19] DL v The Queen (2018) 356 ALR 197, 204 [32]–[33]; cited with approval by Kourakis CJ, with whom Stanley & Bampton JJ agreed, in R v Rendell (2018) 131 SASR 201, 224 [87].
[20] DL v The Queen (2018) 356 ALR 197, 204.
[21]However, the co-relative of the above is that any assessment of the adequacy of reasons must start with an appreciation of the evidence, the nature of the dispute as to the elements of the offences and the identified issues and principal arguments at the trial. The principal arguments do not need to be dealt with at great length[22] and reasons will not be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[23]
[22] R v Ricciardi (2017) 128 SASR 571, 577 [27] (Vanstone J), citing AK v Western Australia (2008) 232 CLR 438 (Gleeson CJ and Kiefel J), R v Keyte (2000) 78 SASR 68 (Doyle CJ), adopting Kirby J in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[23] DL v The Queen (2018) 356 ALR 197; R v Keyte (2000) 78 SASR 68, 78 [48], 79–80 [54]; R v Sabet [2018] SASCFC 18.
As has always been recognised, what is required to be expounded are the principles of law and the main factual findings as distinct from reference to every defence argument;[24] reasons will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues.[25]
[24] Fleming v The Queen (1998) 197 CLR 250; R v McKenzie [2001] SASC 279, [12]–[17]; R v Cotton [2015] SASCFC 17.
[25] DL v The Queen (2018) 356 ALR 197; R v Sabet [2018] SASCFC 18.
I consider that the Judge did explain her conclusions on the significant disputes that constituted necessary steps to her final conclusion that each count was proven; and her Honour did conform to the precepts set out in DL v The Queen. The majority (Kiefel CJ, Keane and Edelman JJ) there stated:[26]
33. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[27] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[28] In particular:[29]
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
[26] (2018) 356 ALR 197, 204–205.
[27] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
[28] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[29] AK v Western Australia (2008) 232 CLR 438, 468 [85]; [2008] HCA 8 (footnote omitted).
Her Honour’s reasons are very much to be contrasted with the situation in AK v Western Australia[30] where there were no reasons given concerning the finding of the facts which were relied upon to prove identification. Indeed, in AK, there was a failure of the trial judge to address the issue of identification at all in his reasons (although there was discussion arguendo). The requirement is clearly summarised in the judgment of Gleeson CJ and Kiefel J thus:[31]
16. Section 120(2) of the Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied. The effect of such a statutory requirement was considered by this Court in Fleming v The Queen. All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant’s arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution. [Emphasis added] [Citation omitted]
[30] (2008) 232 CLR 438.
[31] (2008) 232 CLR 438, 445–446.
When, as here, there is a circumstantial prosecution case with no positive defence being presented, what is required is a consideration of what hypothesis(es) consistent with innocence may exist and, if they are to be rejected, the giving of reasons for such rejection. Thus in R v Becirovic, Lovell and Hinton JJ said:[32]
271. The respondent argued that it was not necessary for the Judge to outline “every step of every process” of his reasoning, provided that he articulated why he was satisfied of the applicant’s guilt. Unqualified that statement cannot be accepted. Reasons are not necessarily adequate just because they reveal a chain of reasoning to a conclusion. Nowhere is this more evident than in a circumstantial case where an accused may not be convicted unless guilt is the only rational inference that may be drawn.[33] That requires all of the “the circumstances established by the evidence … to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”.[34] To the extent that the defence case purports to raise an hypothesis consistent with innocence, AK requires that such hypothesis be addressed by a Judge in his or her reasons. Silence as to the rejection of a competing hypothesis raised provides this Court with no guarantee that the hypothesis was in fact entertained and rejected as not amounting to a reasonable possibility.
[32] [2017] SASCFC 156.
[33] The Queen v Baden-Clay (2016) 258 CLR 308 at [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ) and the authorities cited therein.
[34] The Queen v Baden-Clay (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
I conclude that the Judge’s approach was consistent with this passage. Her Honour’s reasons are sufficient for this Court (and the appellant) to understand that she had scrutinised the prosecution evidence very carefully and demonstrate what evidence she has relied upon, her reasoning process, her findings and her conclusions. Ground 2 is rejected.
GROUND 3 OF APPEAL – “CONSCIOUSNESS OF GUILT”
As foreshadowed above, after the police officers approached Fowler, he called out to his partner Ms Michailidis to bring him “a smoke” whereupon she came out of the house carrying his bag which also contained a mobile phone he had been using. Fowler can be heard saying to police on the recording, “Don’t leave my missus without a phone”. White then briefly inspected the contents of that phone, found images of a person holding a rifle with a mask over his face, and seized the phone.
At trial, the prosecution initially submitted that the “phone request” was made out of “consciousness of guilt” but subsequently abandoned that position. The Judge stated:[35]
57. During her closing address, the prosecutor relied upon the second admission as to possession as being a lie told out of a consciousness of guilt and on the phone request as evidence of consciousness of guilt generally with respect to all four counts. Those submissions were withdrawn at paragraph 19 of the Prosecution’s Written Submissions dated 16 November 2018 and I have therefore disregarded the prosecutor’s oral submissions in this respect when making my findings.
[35] R v Fowler [2019] SADC 100.
Her Honour proceeded to make the following finding and to use it in the following manner:[36]
491. … I accept Officer White’s evidence that he called for Vickey to bring him a smoke, and that she answered that request by bringing him the bag. In my view there is no need for findings to be made as to the circumstances in which the mobile phone, Exhibit P26, was retrieved from that bag. The fact is, the phone was in the bag and, having regard to all of the evidence, I find that when making the phone request, the accused knew what was on that mobile phone, and his intention and hope was to avoid that mobile phone being seized and analysed by police.
[36] R v Fowler [2019] SADC 100.
I consider that there is no error here. It is to be emphasised that to find that “the accused knew what was on that mobile phone, and his intention and hope was to avoid that mobile phone being seized and analysed by police” was not to find that Fowler was conscious of being guilty of the charge(s) before the Court (and hence to run the risk of circularity of reasoning that such a finding may entail). Rather, the Judge simply found that Fowler’s unsuccessful attempt to conceal the images on the mobile phone from the police tended to show that he himself was in fact aware of the presence of such images on the phone and that he was the person in the images. That was an important and permissible inference for her Honour to draw but it did not connote that Fowler had a consciousness of guilt of the charge(s) before the Court as distinct from an awareness that such images could lay him open to embarrassing inquiries from the police (and, it may be, a serious charge under the Firearms Act 2015).
Ground 3 is rejected.
GROUND 4 OF APPEAL – COMPLAINTS AS TO SPECIFIC FINDINGS
The appellant complains of the following three specific findings in her Honour’s reasons.
Ground 4(a): the stance of the man depicted in images 1 to 5 of Exhibit P19 is similar to the stance of male two as described by the second complainant
In her final abbreviated summary of findings, the Judge said that “the stance of the man depicted in images 1 to 5 of Exhibit P19 [who is standing and pointing a rifle] is similar to the stance of male two as described by the second complainant [Coulls Jnr].”[37] The appellant complains of this finding on the basis that neither complainant described any particular “stance” adopted by either male one or male two.
[37] R v Fowler [2019] SADC 100, [573], number 7.
The Judge’s words must be read in the light of her more detailed discussion which appears a little earlier as follows:
570. In those photographs the accused is pictured holding and aiming a firearm. The pose itself is not unusual, if regard is had to how someone may be positioned if photographed holding a firearm. The pose assumed by the accused in these photographs is however consistent with that described by both complainants in terms of the pose and actions of male two, during the incident. The date the image was sent to the accused’s phone, being two days before the incident, is also significant.
I consider that the appellant overemphasises the Judge’s choice of the word “stance”. It is clear that her Honour’s finding was that Coulls Jnr was describing male two as not standing with the gun held idly or relaxed at his side but rather that he was adopting an aggressive aiming “stance” or “pose” of pointing the gun at a target (namely at each complainant in sequence); and that this aiming stance was similar to the aiming stance of the man depicted in the two tranches of images referred to above (who is either aiming at an aiming point “offscreen” or is successfully simulating doing so). Her Honour was correct in saying that the two stances were similar (that word connoting resemblance well short of the ‘distinctive’ or the ‘unusual’ as her Honour had earlier made quite clear). Ground 4(a) is rejected.
Ground 4(b): the accused and Vickey Michailidis were not in each other’s presence at or about 12.50 am on 22 March 2017
The appellant complains of the Judge’s finding that “the accused and Vickey Michailidis were not in each other’s presence at or about 12.50 am on 22 March 2017”[38] on the basis that such finding does not logically advance the prosecution case against the appellant.
[38] R v Fowler [2019] SADC 100, [573], number 12.
The history here was that the trial prosecutor made a detailed analysis of the mobile phone call records and submitted that the two calls between the two phones at about the time of the home invasion indicated that the appellant and Ms Michailidis were not then together. The Judge referred to the evidence contained in Exhibit P30 (a table tendered during the evidence of Officer Dring containing details of all communications made from the mobile phone seized from the appellant) and noted:[39]
379. There is a record of a 10 second call being made from that mobile phone at 12.50 am on 22 March 2017 at Prospect North to … the phone service registered in Vickey Michailidis’ name. It can be inferred from this call, and an earlier call made from [Ms Michailidis] to that phone, of 0 seconds duration, that the accused was not with Ms Michailidis late on 21 March 2017 and in the very early hours of 22 March 2017.
[39] R v Fowler [2019] SADC 100.
I agree with the appellant’s counsel that whether or not it was open to the Judge to find Fowler and Ms Michailidis were not in each other’s presence at the time of the offence, that did not significantly advance the prosecution case since the appellant had never set up a defence that he was with Ms Michailidis (at home or elsewhere) at the time of the home invasion.
However, her Honour did not suggest that this finding was of any significance and the matter was really submerged entirely by the very considerable weight of the other circumstantial evidence determinative of guilt; it is inevitable that her Honour would have convicted irrespective of this finding. If it be that this was a minor blemish on the judgment, it did not give rise to any miscarriage of justice in all of the circumstances. Ground 4(b) is rejected.
Ground 4(c): the accused is the man depicted in the images contained in Exhibit P19
This matter is dealt with above in the context of Ground 1 of Appeal and nothing further need be said. Ground 4(c) is rejected.
DISPOSITION
I conclude that there was no error of law or miscarriage of justice and I would dismiss the appeal.
If I were to be wrong in the above conclusion, I would uphold the prosecution submission that the “proviso” should be applied and the appeal be dismissed on the basis that “no substantial miscarriage of justice has actually occurred”.[40]
[40] Criminal Procedure Act1921 (SA) s 158(2).
Since the decision of the High Court in Weiss v The Queen[41] there have been a number of analyses of the application of the proviso but I particularly note the following recent analysis of Gageler J in Lane v The Queen:[42]
53. For the appellate court to conclude that no substantial miscarriage of justice “has actually occurred” is for the appellate court to conclude that, notwithstanding the error or other irregularity, no substantial miscarriage of justice “in fact” occurred. And for the appellate court to conclude that “no substantial miscarriage of justice” in fact occurred is for the appellate court to conclude that the error or irregularity affected neither: (1) the outcome of the trial, such as to have denied the appellant “a chance of acquittal which was fairly open to him or her”; nor (2) the process of the trial, to an extent sufficient to warrant the conclusion that a substantial miscarriage of justice occurred without need of inquiry into its effect on the outcome of the trial.
…
55. Except where the appellate court concludes that the error or irregularity led to a failure of process so serious as to have amounted without more to a substantial miscarriage of justice, “deciding whether there has been no substantial miscarriage of justice necessarily invites [the] attention [of the appellate court] to whether the jury’s verdict might have been different if the identified error [or irregularity] had not occurred”.
56. The ultimate question for the appellate court in considering the application of the proviso is then whether the error or irregularity denied the appellant a real chance of acquittal or, to put the same question another way, whether the jury’s verdict would inevitably have been the same if the identified error or irregularity had not occurred. Only if the appellate court after reviewing the record of the trial confidently answers that ultimate question in the affirmative can the appellate court conclude that no substantial miscarriage of justice has actually occurred. [citations omitted]
[41] (2005) 224 CLR 300, 316–317 [41]–[45] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). See also Kalbasi v Western Australia (2018) 264 CLR 62.
[42] (2018) 357 ALR 1, 12 [53], [55]–[56].
I consider that error or irregularity did not deny the appellant a real chance of acquittal and that the Judge’s verdict would inevitably have been the same if such error or irregularity had not occurred. Accordingly, the proviso should be applied.
BAMPTON J: I would dismiss the appeal for the reasons given by Peek J.
LOVELL J: I agree that the appeal should be dismissed for the reasons given by Peek J.
Harwood v Police (1998) 71 SASR 300, 305; Papps v Police (2000) 77 SASR 210, 215–217
[24]–[26], 218–219 [34]–[35]; R v Ricciardi (2017) 128 SASR 571, 577 [25]; R v Sabet [2018] SASCFC 18, [91].
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