R v Bellinger No. Sccrm-02-379

[2003] SASC 45

R  v  BELLINGER
[2003] SASC 45

Court of Criminal Appeal:  Doyle CJ, Duggan and Gray JJ (ex tempore)

1. DOYLE CJ, DUGGAN & GRAY JJ:              This is an application for leave to appeal against conviction.

2. The applicant was convicted on charges of attempted armed robbery and larceny after a trial before a jury in the District Court.

3. The applicant sought leave to appeal.  The application was heard by a Judge of this Court.  The Judge refused leave to appeal on both of the grounds argued.

4. The applicant has now requested that his application for leave to appeal be considered and determined by the Full Court.  The applicant has not asked the Full Court to exercise its power to order that the application be listed for oral argument.

5. Accordingly, the Court has considered the application for leave to appeal on the basis of the available written material.  The Court has had available to it the application for leave to appeal, the transcript of the proceedings including the summing up by the trial Judge and the transcript of the application for leave to appeal made to a Judge of this Court.

6. The applicant challenges the admissibility of evidence by the victim of the armed robbery, which evidence identified him by reference to photographs.  The procedure for identifying the applicant appears to have been conducted in the usual way.  The applicant also challenges the admission into evidence of items found at his home by police after the attempted armed robbery had occurred.  The police found at his home clothing similar to that worn by the offender.  The police also found at his home an empty packet of Winfield Roll-Your-Own tobacco.  The victim gave evidence that just before the offence was committed, the offender asked for two packets of Winfield Roll-Your-Own tobacco.  The offender did not take the tobacco with him when he fled.  There is no suggestion that the empty packet found at the applicant’s home came from the service station.  The significance of the empty packet is that it is the same brand as that demanded by the offender.

7. The Court has considered that part of the Judge’s summing up dealing with the identification process, and with the items found at the applicant’s home.

8. In our view the directions were adequate.  It would have been preferable if the Judge had reminded the jury of the comments that the victim made when examining the photographs, but the process was videotaped and was available to the jury.  It is also relevant to record that the trial was short, the evidence being completed within a day.  In our view, there is no prospect of a challenge succeeding on the basis of the directions in relation to the identification process.

9. As to the evidence about the items found at the applicant’s home, our view is that the challenge has no substance.  There is simply no basis at all to challenge the ruling that the evidence was admissible.

10. For those reasons we refuse leave to appeal on the grounds that the appeal has no reasonable prospect of success.