R v Bennett

Case [2004] SASC 52

R v BENNETT and ORS

[2004] SASC 52

Court of Criminal Appeal:       Doyle CJ, Perry and Gray JJ

  1. DOYLE CJ:          The four appellants were found guilty by a jury after a trial in the District Court.  They have all appealed against their convictions and two have appealed against the sentence.

  2. The convictions arise from an incident on 28 December 2001 at a house in Connell Street, Davoren Park, an Adelaide suburb.  The prosecution case was that the appellants together with Kaylene Bennett forced their way into the house, and there assaulted Mr Buckingham, Mr Sprague and Ms Clark, who were at the house at the time.

  3. Count one was a charge of an aggravated offence of serious criminal trespass in a place of residence.  The charge was that the appellants entered or remained in the house as trespassers with the intention of committing an assault.  The circumstances of aggravation were that they did so whilst in company with each other, and when other persons were lawfully present in the house, the appellants knowing of their presence or being recklessly indifferent as to whether anyone was in the house.  On the facts, if the appellants were involved in the incident, there could be no doubt they knew that people were in the house when they entered it.  Each appellant was convicted on count one.

  4. Count two was a charge of common assault on Mr Buckingham.  Each appellant was convicted on this count.

  5. Count three was a charge of common assault on Mr Sprague.  The appellant Mr Mumme was convicted on this count.  The others were acquitted.

  6. Count four was a charge of assault occasioning actual bodily harm to Ms Clark.  Ms Bennett was convicted on this count.  The others were acquitted.  Ms Bennett has not appealed against her convictions.

  7. Count five was a charge of damaging property.  Luke Bennett (the son of Mr Mumme and Ms Bennett) was convicted on this count.  He alone was charged with this offence.

  8. A number of grounds of appeal were raised by the appellants.  Some of the grounds are relied upon by each appellant, some are particular to particular appellants.  The grounds complain of misdirection by the Judge, or of a failure to direct the jury, apart from a complaint by Mr Glover that the verdicts are inconsistent, and a complaint by Mr Mumme that a witness should not have been allowed to identify him in court.

  9. Mr Bennett and Mr Glover have appealed against the sentence imposed on them.

    Facts

  10. Mr Buckingham visited a house occupied by Mr Sprague at 57 Connell Street on the afternoon of 28 December 2001.  Mr Buckingham knew Mr Mumme, his wife Ms Bennett, their son Luke Bennett and Mr Mahoney (whom he knew only as Paul).  They lived in the same street at No.47.  Mr Buckingham did not know Mr Glover.  He lived in the street, but not at No.47.

  11. At about 8.30pm, on the prosecution case, Mr Mumme was riding a mini bike in the street.  Mr…

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AGLC
R v Bennett [2004] SASC 52
Case
[2004] SASC 52
Decision Date

CaseChat Overview and Summary

The case of R v Bennett involves the appeals of Mr Bennett, Mr Glover, and Mr Mumme against their respective sentences. Mr Glover and Mr Bennett appealed against their convictions and sentences, while Mr Mumme appealed only against his sentence. The underlying dispute centres on a violent incident that occurred on 28 December 2001, where Mr Buckingham was attacked by a group of people at a house on Connell Street. The primary legal issues the court had to address pertained to the adequacy of the warnings given to the jury regarding the reliability of identification evidence, particularly the photographic identification of Mr Glover, and whether the convictions and sentences were justified based on the evidence presented.

The court found that the warnings given by the trial judge concerning the photographic identification of Mr Glover were inadequate. The identification process was fraught with inconsistencies, such as Mr Sprague describing the unknown man as clean-shaven while the photograph of Mr Glover showed him with a moustache. Additionally, Mr Sprague's testimony about the unknown man being someone he had previously encountered at Mr Mumme’s house was contradictory. The court concluded that the judge’s direction to the jury did not sufficiently emphasise the difficulties associated with Mr Sprague’s photographic identification. Consequently, the convictions against Mr Glover and Mr Bennett were set aside. For Mr Mumme, the conviction on count two was set aside, and his entire sentence was nullified, necessitating a re-sentencing. Mr Mahoney's appeal against his conviction and sentence was dismissed.

Given the outcomes of the appeals, the court ordered a retrial for the charges where the convictions were set aside. The court also outlined principles for considering the reliability of positive identification evidence in future cases, emphasizing the importance of isolating identification evidence when assessing its reliability and the necessity of adequately warning the jury about the potential pitfalls of such evidence. The court agreed with the proposed orders and reasons articulated by Doyle CJ, mandating a retrial for the affected parties.

Orders

Orders of the court

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Background

Background to the litigation

Mr Bennett and Mr Glover have appealed against the sentence imposed on them.Facts Mr Buckingham visited a house occupied by Mr Sprague at 57 Connell Street on the afternoon of 28 December 2001. Mr Buckingham knew Mr Mumme, his wife Ms Bennett, their son Luke Bennett and Mr Mahoney (whom he knew only as Paul). They lived in the same street at No.47. Mr Buckingham did not know Mr Glover. He lived in the street, but not at No.47. At about 8.30pm, on the prosecution case, Mr Mumme was riding a mini bike in the street. Mr Buckingham and Mr Sprague saw him fall off. They laughed at this. Mr Buckingham spoke to Mr Mumme briefly. Mr Mumme rode off towards his house. Almost immediately Luke Bennett came to the front of the house. There was an angry exchange with Mr Buckingham, and he left. He went towards Mr Mumme’s house. On the prosecution case he was angry about the amused reaction to his father’s fall. About five minutes later Mr Buckingham heard the sound of angry voices, indicating that a group of people were approaching the house. Mr Buckingham saw Mr Mumme, Ms Bennett, her daughter, Mr Mahoney and two other men he did not know. He saw them in the front yard. He did not see Luke Bennett at that stage. Mr Buckingham retreated to the hallway, Mr Sprague being at the front door. There was an argument at the front door between Mr Sprague and Mr Mumme. During this Mr Mahoney reached over Mr Mumme’s shoulder and hit Mr Buckingham in the mouth. The group then forced their way in and Mr Buckingham became involved in two fights in the kitchen. In the first fight he was attacked by Mr Mahoney, and in the second by Mr Mahoney and one of the unknown men. The prosecution case was that the unknown man was Mr Glover. During the second fight Ms Bennett grabbed him by the arm. At one stage he saw Luke Bennett in the kitchen damaging some items of property. In his direction to the jury the Judge did not at any stage identify for the jury whether count two comprised all or some of these incidents. The prosecutor opened on the basis that the fight in the kitchen was the subject of count 2. While this was happening Mr Buckingham saw Ms Clarke, who also lived at the house, lying under a table in another room and he saw Ms Bennett standing near her. Mr Sprague also knew Mr Mumme and Ms Bennett. He described the incident in which Mr Mumme fell off the mini bike, and the altercation between Mr Buckingham and Luke Bennett. He also heard the voices of people approaching the house shortly after this. He recognised Mr Mumme, Ms Bennett, Luke Bennett, Ms Bennett’s daughter, a man called Danny and another man whose name he did not know. When the group forced their way into the house, Mr Mumme pushed him into the hallway and restrained him. This incident was treated by the prosecutor as the subject of count three, although again the Judge did not identify the subject of count three for the jury. Mr Sprague said he saw Ms Clarke being punched and kicked by Ms Bennett and by her daughter, and he saw the unknown man kick Ms Clarke. He saw Mr Mahoney and the man he did not know fighting with Mr Buckingham in the kitchen. He saw Luke Bennett in the kitchen damaging items of property.

Evidence

Evidence Before The Court

I agree that the Judge might well have said a little more about this, to help the jury. But the Judge reminded the jury of counsel’s submission that the fingerprint might have been left on the occasion of a previous visit. He did not suggest that there was anything in the prosecution evidence to counter that suggestion. Under the circumstances that was enough.Mr Glover – photographic identification and circumstantial evidence Mr Sprague identified a photograph of Mr Glover as a photograph of one of the unknown men involved in the attack. This was done six weeks after the attack. No criticism was made of the procedure followed by the police in connection with the photographic identification. There were two notable features of the identification by Mr Sprague. He described the unknown man as being clean shaven. However, apparently the photograph of Mr Glover taken by the police on 28 December showed that he had a moustache. Another feature of his evidence was that he said the unknown man was a man he had previously had contact with at Mr Mumme’s house, but in cross-examination he appeared to say that the unknown man was a different person with whom he had had contact at Mr Mumme’s house, and then later again he said that the first man referred to was not the unknown man. Mr Nitschke submitted that the Judge’s direction to the jury in relation to the photographic identification was, in the circumstances, inadequate. I agree. Although I have already concluded that the convictions recorded against Mr Glover should be set aside, it is appropriate to explain, as briefly as I can, why I agree with the criticisms. The Judge’s general directions about the dangers of identification evidence, and about the dangers of photographic identification, were sufficient. Although the Judge did not tell the jury that people have been wrongly convicted on the basis of unreliable identification evidence, it is not essential that that be said in every case. It is a good way of making the point that identification evidence calls for great care. It is a point often made to juries. As long as that point is made to the jury adequately, the requirements of a fair trial are observed. However, the Judge’s direction to the jury fell short of what was required when it related the general warnings to the facts of the case. Although it is a matter of impression, I consider that the difficulties connected with Mr Sprague’s photographic identification warranted more emphasis than the Judge gave them. Standing alone, that might not matter. However, later in his summing-up the Judge reminded the jury that the circumstances of the attack must have been frightening for the occupants of the house, and that it would not be surprising of the victims did not recall all of the details of the appearance of the attackers. That was a reasonable point to make. In that context he said that the jury might be reluctant “to place much reliance upon descriptions which fit or do not fit a particular accused.” Almost immediately before that, he had mentioned some details that witnesses might be unclear about, and one of them was “moustache or no moustache”. This comment might have undermined the early direction, because it was capable of suggesting to the jury that they need not be troubled by the fact that Mr Sprague described the unknown man as clean shaven, but identified him by reference to a photograph which showed that Mr Glover had a moustache at the time.

Decision

Reasons for decision

PERRY J
As the convictions recorded against Luke Bennett and Mr Glover should be set aside, there is no need for me to deal with their appeals against sentence. One of the convictions recorded against Mr Mumme (the conviction on count two) should be set aside. It follows that the single sentence imposed on him should be set aside, even though he did not appeal against the sentence. He will have to be re-sentenced. Mr Mahoney did not appeal against the sentence imposed on him, and accordingly his sentence must stand.Conclusions and Orders For those reasons the convictions recorded against Luke Bennett on count one and count two must be set aside. The sentence imposed on him falls with those orders. The convictions recorded against Mr Glover on counts one and two must be set aside, and the sentence imposed on him falls with those orders. In relation to Mr Mumme, his appeal against his conviction on count two should be allowed, and that conviction should be set aside. His appeal against the convictions on count one and count three should be dismissed. The sentence imposed on Mr Mumme should be set aside. The appeal by Mr Mahoney against his conviction on count one and count two should be dismissed. There should be a retrial on the charges on which the convictions were set aside. I agree with the orders proposed by Doyle CJ and with his reasons. I agree with Doyle CJ that there may be some differences of opinion expressed in the authorities decided in this Court on the question whether the reliability of positive evidence of identification should first be considered by the jury in isolation from other evidence in the case. While I refrain from expressing a concluded view on the matter, in my opinion, the relevant principles should be as follows:(a) In determining the adequacy of the warning, one has regard only to evidence relating to the circumstances of the identification, not to any other evidence in the case.(b) The jury must be directed that in determining whether they accept evidence of positive identification, whether direct or circumstantial, they must have regard only to the evidence relating to the identification.(c) Points (a) and (b) do not apply to what the Chief Justice describes as similarity evidence.(d) If the jury is not satisfied beyond reasonable doubt of the accuracy of the evidence of positive identification, it must be disregarded for all purposes in the case. It cannot be put into the scales in some reduced form in determining whether or not the charge is made out.(e) Point (d) is subject to the qualification that where evidence of positive identification includes similarity evidence relating to a tangible item, or distinguishing characteristic eg an item of clothing or something carried or use of a vehicle fitting the description of a vehicle used in the crime, the colour of hair or the like, and the jury, while not satisfied that the evidence amounts to positive identification, if satisfied beyond reasonable doubt of the evidence relating to the existence of any such item, or distinguishing characteristic, may use it as part of the body of circumstantial evidence.(f) Once evidence of positive identification of either kind is accepted by the jury it should then be taken into account in the general body of evidence in the case in determining whether the charge is made out.GRAY JIntroduction

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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