Grant v The Queen

Case [2020] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

GRANT v THE QUEEN

[2020] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)

26 June 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION

Appeal against conviction for murder. 

During the evening of 30 January 2017, the deceased was physically assaulted in a suburban street by three men acting in concert and subsequently died from his injuries. The appellant, in company with two other persons, A and B, had arrived in two cars and stopped outside the deceased’s premises.  They were looking for a fourth person. Upon their arrival, a short verbal confrontation ensued with the deceased.  The appellant chased the deceased down the street on foot and caught up with him.  A and B immediately followed in the two cars.  All three surrounded the deceased and assaulted him.  Much of the action was recorded by CCTV cameras located at nearby premises.

It was the prosecution case that the appellant’s group travelled to the street with the intention of confronting the fourth person, probably to assault him. Following the confrontation with the deceased, the group formed a joint criminal enterprise to assault and cause grievous bodily harm to the deceased.  Alternatively, if their common intention was merely to assault, the appellant must have contemplated that one of the protagonists might go further and cause grievous bodily harm. The appellant conceded that he had participated in the chase and the assault but denied that he was party to a joint criminal enterprise or extended joint criminal enterprise sufficient to prove murder.  He pleaded to manslaughter by unlawful and dangerous act at the trial but this plea was not accepted by the prosecution.  The essential issue in dispute at trial and on appeal was the state of mind of the appellant at the time of the fatal assault.

On appeal, the appellant contended that: (1) there was a miscarriage of justice occasioned by the failure of the prosecution to call a Mr Christopher Wheatley as a witness; (2) There was a miscarriage of justice occasioned by the treatment of the CCTV vision of the offending at the trial, in particular: (i) the prosecutor made a number of submissions as to what could be seen in the CCTV vision which should not have been made because there was no support for them in the vision; and (ii) the Judge erred in not directing the jury to ignore these submissions.

Held, per Nicholson J (Peek and Lovell JJ agreeing), dismissing the appeal:

1.  The prosecutor’s failure to call Mr Wheatley was justified and did not result in a miscarriage of justice.

2.  The submissions made…

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Grant v The Queen [2020] SASCFC 61
Case
[2020] SASCFC 61
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, A, for an offence arising from an altercation that resulted in the death of the deceased. The dispute centred on whether the trial judge had misdirected or failed to direct the jury on crucial aspects of the prosecution's conduct and the evidence presented. The matter was heard by Peek, Nicholson, and Lovell JJ in the Court of Criminal Appeal.

The legal issues before the court included whether the prosecution had failed in its duty to call a particular witness, and whether the prosecutor's conduct during the trial constituted a ground for appeal. Specifically, the court considered whether the judge erred in his directions to the jury regarding the evidence and the prosecution's obligations.

Nicholson J, with whom Lovell J agreed, dismissed the appeal. The court found that the grounds of appeal, particularly concerning misdirection and the conduct of the prosecution, were not made out. The judge's directions to the jury were deemed appropriate, and there was no cause to interfere with the jury's findings. Permission to appeal was granted on one ground, but ultimately the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

At an earlier hearing, I granted permission to appeal with respect to ground 1 and referred ground 2 for the question of permission to be considered by the Court of Criminal appeal in conjunction with the hearing of the appeal. I would grant permission to appeal on ground 2 but for the reasons that follow, I would dismiss the appeal.The prosecution case in summary and further background The deceased lived at number 11B on the eastern side of the street.[4] Number 11B is some seven or so houses down from a T-junction to the north and some seven or so houses up from a T-junction to the south. At the time, the deceased’s best friend, Sam Perkins, was actively avoiding the police[5] and certain other men who had become his enemies. Mr Perkins also knew Robbie Thaller who lived at number 20 on the western side of the street about three or so houses up from the T-junction to the south. Mr Perkins and the deceased had met Mr Thaller a couple of weeks before the incident. Mr Thaller also knew the appellant, A and Christopher Wheatley.[4] Strictly, the street in question runs approximately from the north-east to the south-west. However, to simplify later orientation references, I will treat the street as running north to south and the house at 11B as being on the east side rather than the south-east side.[5] A warrant for his arrest for breaching parole was active but unexecuted. Positioned on Mr Thaller’s property at number 20 were CCTV cameras which afforded a view (and captured imagery) of his front apron and driveway and along the street in a northerly direction to the area of the house at 11B and beyond. The view also encompassed the street and footpath outside a house at number 18 on the western side of the street and next door to number 20. It was in this area that the assault took place, as captured by the CCTV. The movements of persons on the night in question and the times given for those movements identified in these reasons have been ascertained from the CCTV vision[6] together with the evidence of eyewitnesses and, unless otherwise indicated, are not in dispute.[6] It was an agreed fact at trial that the times disclosed on the CCTV vision were 30 minutes before the actual times in South Australia. Unless otherwise indicated, the times given throughout these reasons are the correctly adjusted times. Whilst hiding out, Mr Perkins spent time at both number 11B and number 20. During the early evening of 30 January 2017 he was at number 20. Arrangements were in place for a friend to collect Mr Perkins and to take him to another location. However, at about 9.00 pm that friend was stopped in her car by police very near to the T-junction to the south. This event was available to be seen on Mr Thaller’s CCTV and Mr Perkins became aware of it. He thereupon asked Mr Thaller to make other arrangements. Mr Thaller arranged for Christopher Wheatley to collect Mr Perkins. Mr Perkins was concerned that the police who had stopped his friend might discover his location at number 20 and at about 10:02 pm he jogged from number 20 to number 11B and went inside. The deceased and three friends, all called Matthew, were inside. Each of the three Matthews, but particularly Matthew Marshall, gave evidence of potential significance. Mr Perkins waited at number 11B for Mr Wheatley; Mr Thaller remained at number 20.

Evidence

Evidence Before The Court

Initially, Mr Perkins was to be collected from Mr Thaller’s house at number 20. When Mr Perkins found out that his friend who was to collect him had been stopped by the police near the southern T-junction he became concerned that his location might be revealed to the police. He thereupon obtained Mr Thaller’s assistance to arrange another lift but to be collected from number 11B. (i)Mr Perkins’ initial lift was intercepted and stopped by police at about 9.00 pm. According to Mr Perkins, he saw this on the CCTV and asked Mr Thaller to arrange another lift.(ii)Mr Thaller telephoned Mr Wheatley at 9.51 pm.(iii)At or about 10:02 pm, Mr Perkins jogged from number 20 to number 11B.(iv)At 10:12 pm, a phone connection lasting 45 seconds took place initiated from a phone in the name of Shannon Howell to Mr Wheatley’s phone. Shannon Howell was the appellant’s partner at the time; the inference that the appellant was using her phone that night is not disputed.(v)At 10:29 pm, Mr Wheatley parked in the driveway of number 20 and went inside the house.[10] [10] According to Mr Perkins, it had been arranged that Mr Wheatley would “swing by” number 20 and collect Mr Perkins’ backpack on the way to collecting him at number 11B.(vi)At 10:33 pm, the Echo and the RAV4 drove along the street in a northerly direction past number 20 and then slowed down outside number 11B before continuing towards the northern T-junction and out of camera view (first drive by).[11][11] That the cars slowed down outside number 11B, so as to reconnoitre, was the prosecution submission. The fact of braking and slowing down is supported by brake lights appearing to light up as shown on the CCTV. That the occupants of the cars were reconnoitring is supported by the brake lights, by the fact that the two cars drove along the street that night three times in close succession before stopping a fourth time when the altercation with the deceased ensued and by the evidence of Mr Perkins who said that from the roof, on one occasion, he saw the occupants of the Echo turn their heads to stare at number 11B.(vii)At 10:35:46 pm, Mr Wheatley parked his car immediately outside number 11B, on the east side of the street and facing north.(viii)At 10:35:57 pm (11 seconds after Mr Wheatley’s arrival in (vii)), Mr Perkins left number 11B and went to speak to Mr Wheatley. As put by the prosecution, Mr Wheatley thereby obtained visual confirmation that Mr Perkins was in the vicinity of number 11B.(ix)At 10:36:39 pm, the Echo and the RAV4 came down the street from the north, engaging in a second drive by. The approaching headlights were visible to Mr Perkins who became concerned and retreated inside number 11B. The approaching headlights also, presumably, were visible to Mr Wheatley, given that his car was facing north.(x)Still at 10:36 pm, the Echo and the RAV4 came to a stop adjacent to Mr Wheatley’s vehicle for between 5 and 12 seconds. The vehicles were positioned so that the Echo was closest to Mr Wheatley’s vehicle with the front passenger side of the Echo (where the appellant was sitting) alongside Mr Wheatley’s driver’s side window. According to the prosecution, an inference is available that the occupants of the two cars conversed and discussed the presence of Mr Perkins inside number 11B.[12](xi)The two vehicles continued south and at 10:36:52 pm they went past number 20 and out of camera view.(xii)At 10:38:08 pm a third drive by took place. The Echo and the RAV4 travelled north and passed by number 11B and Mr Wheatley’s vehicle. The brake lights came on again, indicating a slowing down. However, the cars did not stop on this occasion.(xiii)At 10:39:09 pm (about 1 minute after the third drive by in (xii)), a phone registered in the name of A connected with Mr Wheatley’s phone for 43 seconds. Either A made the call or, given that A was driving, more likely the appellant made the call. Either way both would have been privy to at least one side of the conversation. The prosecution contended, and I accept, that A and the appellant or one of them conversed with Mr Wheatley on at least one but probably three occasions: the 10:12 pm phone call, the time when the two cars stopped for 5 to 12 seconds and the 10:39 pm phone connection for 43 seconds, and that the topic was the whereabouts of Mr Perkins.(xiv)Some two minutes or so later, at 10:41:55 pm, the deceased came out from number 11B and approached Mr Wheatley’s car. I interpolate here that the CCTV vision at this point clearly shows a shadowy figure walk from a flash of light source, at or about where the front door for number 11B should be, towards and stopping at Mr Wheatley’s car. At or about the time the shadowy figure first appears, one can see on the CCTV vision the flash of light source, as if a door has opened allowing the figure to emerge from a lit room.[13] This observation, taken from the CCTV vision at this point, is of potential significance to an aspect of appeal ground 2.1 as explained later in these reasons.(xv)At 10:42:12 pm, the headlights of the Echo and the RAV4 coming from the north (a fourth visit) are visible and at or about 10:42:30 pm the Echo was stationary facing south and adjacent to Mr Wheatley’s vehicle and by 10:42:39 pm the RAV4 was parked nearby. (xvi)Soon after the two vehicles stopped on this occasion, the altercation outside number 11B between A and the appellant and the deceased resulting in the deceased being chased down to number 18, as earlier described, took place.(xvii)That part of the assault outside number 18 when all three were present occurred between approximately 10:43:12 pm and 10:43:26 pm. [12] Such an inference is readily available on all of the evidence including the, later to be made, demands addressed to the deceased “where the fuck’s Sam”.[13] This interpretation of the CCTV vision at this point is consistent with the evidence of Mr Perkins that he saw the deceased leave the house and walk to Mr Wheatley’s vehicle very shortly before he saw vehicles approaching from the north; see the next chronological entry in the text.Eyewitness evidence concerning the actual assault

Decision

Reasons for decision

NICHOLSON J (dissent)
Whilst ultimately a matter for the jury, it may be that Mr Marshall was confused or mistaken in his evidence and that he went outside twice; once very briefly while the assault was taking place and once some minutes later to inspect the aftermath. In any event, on my viewing of the CCTV vision, there is clear support for submission 5 as put to the jury.Conclusion Neither appeal ground 1 nor the complaint in appeal ground 2.1 is made out. As such, it is not necessary to consider the complaint in appeal ground 2.2 other than to say that the Judge had no cause to direct the jury other than he did. As I said at the outset of these reasons, I would grant permission to appeal on ground 2 but dismiss the appeal. LOVELL J: I would grant permission to appeal on ground 2 but dismiss the appeal for the reasons given by Nicholson J.

Ratio Decidendi

Legal Principle Established

Established by:

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