R v Cluse

Case [2014] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLUSE

[2014] SASCFC 97

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)

9 September 2014

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES

Appeal against convictions - appellant found guilty by a judge sitting alone of aggravated serious criminal trespass in a place of residence and two counts of aggravated endangering life - case against appellant based on circumstantial evidence - evidence of a police officer about the culture of outlaw motorcycle gangs and of specific incidents of violence between motorcycle gang members admitted as being relevant to motive - whether the judge erred in admitting the opinion evidence of the police officer - whether the judge erred in his use of the officer's evidence to prove motive and identity - whether error of law - whether no substantial miscarriage of justice occurred.

Held per Vanstone J (Kourakis CJ and Kelly J agreeing): evidence of the culture and operations of the motorcycle clubs was not opinion evidence, but was knowledge gleaned from long observation and study and was properly admitted – use of the admissible portions of the evidence as evidence of motive in the circumstantial case was permissible – evidence of specific instances of violence between motorcycle gangs learned from secondary sources was inadmissible and it was an error of law to admit it – the use made of the officer’s evidence was limited - the case against the appellant would have been no weaker without it – the error in admitting inadmissible parts of the officer’s evidence did not cause a substantial miscarriage of justice.

Held per Kourakis CJ (Kelly J agreeing):  opinion evidence based upon police intelligence - where police officer giving evidence of criminal practices - importance of distinguishing between evidence based upon police officer's direct observations and opinion evidence on matters of which officer has no direct knowledge - opinion evidence based on police intelligence must be founded in a course of study or special experience and must be informed by reliable data.

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

The appellant gave evidence at trial - whether the judge reversed the onus of proof when assessing certain aspects of the appellant’s evidence – whether the judge erred in apparently rejecting the appellant’s evidence before considering all of the prosecution evidence.

Held per Vanstone J (Kourakis CJ and Kelly J agreeing): in identifying why he found aspects of the appellant’s evidence to be implausible and lacking credibility, the judge was not placing a positive requirement on the appellant to supply detail – throughout his reasons the judge reiterated that the onus rested on the prosecution – it should not be assumed that the judge’s own analysis of the entire case was…

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AGLC
R v Cluse [2014] SASCFC 97
Case
[2014] SASCFC 97
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions for aggravated serious criminal trespass in a place of residence and two counts of aggravated endangering life. The case against the appellant was primarily circumstantial, and the appeal challenged the admissibility and use of evidence provided by a police officer regarding outlaw motorcycle gang culture and specific violent incidents. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the judge erred in admitting the police officer's opinion evidence, particularly concerning the culture and operations of motorcycle clubs and specific violent incidents. The court also considered whether the judge improperly used this evidence to prove motive and identity, and whether this constituted an error of law. Further issues raised were whether the judge reversed the onus of proof when assessing the appellant's evidence and whether the judge's finding regarding the appellant's state of mind, specifically knowledge that a firearm might be discharged, was flawed. Finally, the court considered whether the verdicts were unreasonable or unsupported by the evidence.

The court held that the police officer's evidence regarding the culture and operations of motorcycle clubs, derived from extensive observation and study, was not inadmissible opinion evidence but rather expert knowledge. The use of this admissible evidence to establish motive in a circumstantial case was permissible. However, the court found that evidence of specific violent incidents between motorcycle gang members, learned from secondary sources, was inadmissible and its admission constituted an error of law. Despite this error, the court concluded that the admissible portions of the officer's evidence were limited and the case against the appellant would not have been weaker without the inadmissible parts, thus no substantial miscarriage of justice occurred. The court also found no error in the judge's assessment of the appellant's evidence, noting that the judge consistently maintained the prosecution bore the onus of proof. Regarding the appellant's state of mind, the court found that the facts as found supported the inference that the plan involved endangering the occupants' lives, and the manner of achieving this was not a matter requiring separate proof.

Ultimately, the Full Court dismissed the appeal. While acknowledging an error in admitting certain parts of the police officer's evidence, the court was satisfied that this did not result in a substantial miscarriage of justice. The other grounds of appeal were also not made out.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal against the convictions was granted by a single judge of this Court. The grounds attack the admissibility of evidence of a police witness, Featherby, who spoke of motorcycle club culture and history, and the use of that evidence; the judge’s approach to the evaluation of the appellant’s evidence; the evidentiary basis for the finding of a joint enterprise, and a finding that the attackers knew that one of those who entered the house had and might use a firearm. Then it is argued that the verdicts are unreasonable, unsatisfactory and against the weight of the evidence. I propose to describe the evidence comprising the prosecution case and then deal with these grounds in turn.Background The judge referred to “plausible evidence” that eight individuals arrived at the vicinity of the house in three cars and that at least five individuals carried out the attack. He found as a fact that at least four persons were involved: [213]. Sandery’s then partner, “C”, gave evidence before the judge, but the main observations were made by the two boys in the front bedroom, “A” and “B”. The intruders were described as wearing black clothing. One of them was seen to point the firearm and shoot at A. He was wearing a covering over his face, similar to a bandana. Another intruder was seen to wield a baseball bat. He was wearing a balaclava. A brick was thrown through the boys’ window. A hammer was found in the living room on a toy box under one of the broken windows. The judge found that the appellant was a major contributor to DNA found on the handle of the hammer. Control samples of glass from the broken windows of the Semaphore home were taken by police. On 15 December 2011 police searched the appellant’s home. Two balaclavas were collected. The balaclava, Exhibit P40, was found in the appellant’s bedroom. His DNA was found on it. The balaclava, Exhibit P56, was found in the bedroom of the appellant’s brother, Kayne. Kayne’s DNA was found on it. Fragments of glass were recovered from both items. Glass fragments were also recovered from the seat covers and door mats of the appellant’s Mitsubishi Magna sedan. The glass fragment found on the balaclava P40 was, on refractive index testing, indistinguishable from one of the control samples, Exhibit P14. This sample was taken from the window of the study on the northern side of the house. Of the three glass fragments found on P56, one was unable to be distinguished from the control sample P14, or from the fragment on the balaclava found in the appellant’s bedroom, which he acknowledged having used for a year or so. Five fragments from the floor mats of the appellant’s car matched control samples from the scene in terms of refractive analysis. Upon laser ablation analysis a glass fragment from each of the driver’s and front passenger seats of the car could not be distinguished from control sample P13. Control sample P13 was taken from a window on the western side (the front) above the toy box on which the hammer was found.

Evidence

Evidence Before The Court

The appellant gave evidence in his defence. He acknowledged what amounts to a strong connection with the Hells Angels, but he denied being involved in the crime in any capacity. He said that at the time it occurred he would probably have been at the Hells Angels’ clubrooms. He denied having any knowledge of Sandery prior to the attack. He heard about it after the event.Ground 1 – admissibility of the “opinion evidence” of the witness Featherby regarding motorcycle club culture and history Prior to trial the defence indicated that it took objection to the admission of the evidence of Detective Senior Sergeant Brett Featherby (Featherby) an officer in the Crime Gangs Task Force of South Australia Police. Featherby’s statement recorded that he had been a senior member of the Task Force since its establishment in 2007. For over two years from January 2003 he had been seconded to the Australian Crime Commission investigating criminal networks and organised crime groups. He then spent periods in the Electronic Crime Section and the Drug Investigation Branch. During his most recent tour of duty he had focussed on motorcycle clubs. He had been involved in many investigations of “outlaw” gangs, including motorcycle clubs. He had supervised a number of such investigations. He had liaised with and observed the work of interstate police holding similar positions to his. His knowledge of the culture and operations of such clubs was gleaned from a number of sources including direct involvement in specific operations, information from other members of the task force, telephone interceptions and material from listening devices including within correctional institutions, searches of various clubrooms and other addresses associated with motorcycle clubs and contact with external law enforcement agencies. From his extensive knowledge of motorcycle clubs Featherby asserted that there were eight such motorcycle clubs operating in South Australia at the relevant time, two of which were the Finks and the Hells Angels. Featherby described the numbers of members of each club and a variety of what he called their common characteristics. He spoke to their hierarchical structure and the roles of the office bearers within the clubs. He described the clubrooms of the two relevant clubs, the rules of those clubs, the clothing worn by them at their various levels, club tattoos, meetings, jargon used within the clubs and their activities. He related that police searches from the premises of those two clubs yielded numerous weapons subject to seizure on a number of occasions. Featherby also provided some specific information about the appellant and about Sandery. He said that Sandery was a proud member of the Finks. (Sandery’s partner gave similar evidence.) In his statement Featherby went on to describe numerous specific incidents of violence between motorcycle gang members, not all of which occurred within South Australia and not all of which were said to be confrontations between the Hells Angels and the Finks. This area was also explored in oral evidence. A number of the incidents involved firearms and firearms were seized from club members by police on a number of occasions. Several of the incidents occurred after the attack on Sandery’s house.

Decision

Reasons for decision

I consider it was well open to the judge to find the appellant guilty as charged.Conclusion Although the appellant has succeeded in demonstrating that part of Featherby’s evidence was inadmissible, I am satisfied that no substantial miscarriage of justice resulted. None of the other grounds of appeal has been made good. I would dismiss the appeal. KELLY J: I agree that this appeal should be dismissed for the reasons given by Vanstone J. I also agree with the further observations made by Kourakis CJ.

Ratio Decidendi

Legal Principle Established

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