Fowler v The Queen

Case [2019] SASCFC 153

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…

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AGLC
Fowler v The Queen [2019] SASCFC 153
Case
[2019] SASCFC 153
Decision Date

CaseChat Overview and Summary

The appeal concerned the appellant, Fowler, who was convicted of offences arising from a home invasion. The prosecution's case relied heavily on circumstantial evidence. The appeal was heard by Peek, Bampton, and Lovell JJ of the Supreme Court of South Australia.

The central legal issues before the Court were whether the verdict of guilty was against the weight of the evidence, and whether the trial judge had erred in her handling of certain evidence, specifically concerning the admissibility and use of images found on the appellant's mobile phone. The Court was required to conduct an independent assessment of the evidence to determine if any reasonable hypothesis consistent with innocence remained open.

The Court reasoned that while some evidence, such as the appellant's prior dealings with a drug dealer, might be considered, it did not carry significant weight when viewed in the context of all the evidence. The prosecution's case was found to be strong, supported by multiple pieces of circumstantial evidence. This included the appellant being found with a stolen motorcycle shortly after it was taken, his lack of a reasonable explanation for its possession, and the presence of images on his mobile phone depicting a man with a rifle and a mask that closely matched descriptions given by the victims of the home invasion. The Court found that the trial judge had exhaustively analysed the evidence and did not err in her conclusions, particularly regarding the use of the mobile phone images. The Court affirmed the principle that in a circumstantial case, a guilty verdict can only be returned if the circumstances are inconsistent with any reasonable hypothesis other than guilt.

The Court dismissed the appeal, finding that a reasonable hypothesis consistent with innocence was not reasonably open on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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’

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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