R v Cluse - [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 compartmentalised in the sequence found in the written reasons – no error demonstrated.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
Complaint about the judge's finding that the appellant knew a firearm might be fired in the course of the attack – whether the judge’s finding about the appellant’s state of mind was flawed.
Held per Vanstone J (Kourakis CJ and Kelly J agreeing): the clear inference from the facts as found was that the plan was to break into the house and endanger the lives of the occupants – that plan was carried out - the manner in which that might be accomplished was not a matter in need of proof.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Complaint that the verdicts were unreasonable or could not be supported having regard to the evidence - whether the equivocality of the various strands of circumstantial evidence was such that the judge must have acquitted.
Held per Vanstone J (Kourakis CJ and Kelly J agreeing): it was open to the judge to find the appellant guilty - the verdicts were not unreasonable.
Held: none of the grounds of appeal has been made out - appeal dismissed.
R v Barker (1988) 34 A Crim R 141; Anderson v The Queen (1992) 60 SASR 90; R v Fazio (1997) 69 SASR 54; R v Morrison (2002) 136 A Crim R 222; R v Vinayagamoorthy & Ors (2008) 200 A Crim R 186; R v Hawi & Ors (No 1) (2011) 220 A Crim R 452; R v Wilson (2002) 166 CCC (3d) 294; X v The Queen [2010] QCCA 1627; R v Yildiz (1983) 11 A Crim R 115; Shepherd v The Queen (1990) 170 CLR 573; Lee v The Queen (2014) 308 ALR 252; Wilde v The Queen (1988) 164 CLR 365; McAuliffe v The Queen (1995) 183 CLR 108; M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Weal v Bottom (1966) 40 ALJR 436; Nickisson v The Queen [1963] WAR 114; R v Duncan (1969) 90 WN (Pt 1) (NSW) 150; Cooper v Bech (No 2) (1975) 12 SASR 151; Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 118; Ritz Hotel Ltd v Charles at the Ritz Ltd [No 7] (1987) 14 NSWLR 104; Marinovich v The Queen (1990) 46 A Crim R 202; R v Lindsay [2004] OJ 4097; R v Sandham [2009] OJ 4602, considered.

R v CLUSE
[2014] SASCFC 97
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Vanstone J. I wish only to add some observations of my own about opinion evidence based on police intelligence and the authorities referred to by her Honour in [43]-[47].
It is well accepted that expertise can be achieved by a course of education and training or by special experience.[1] When it is proposed that a police officer give opinion evidence about the practices of criminals, it is important to distinguish between evidence of facts relating to those practices observed in the course of that police officer’s duties, to which I will refer as direct evidence, and the giving of opinion evidence about matters of which the police officer has no direct personal knowledge. Evidence of the latter kind must be founded in a course of study or special experience and must be informed by reliable data.
[1] Weal v Bottom (1966) 40 ALJR 436; Nickisson v The Queen [1963] WAR 114 at 119; R v Duncan (1969) 90 WN (Pt 1) (NSW) 150 at 155; Cooper v Bech (No 2) (1975) 12 SASR 151 at 152.
In R v Barker[2] it was held that the evidence of a police officer relating her observations of persons, other than the accused, using drug paraphernalia was admissible, not as opinion evidence, but because her observations of the use of paraphernalia of a kind found in the accused’s possession was directly relevant. In Barker, King CJ described the police officer’s testimony as “evidence of facts, sometimes expressed in compendious form, which she had observed in the course of her experience as a police officer, particularly with the Drug Squad.”[3]
[2] (1988) 34 A Crim R 141.
[3] (1988) 34 A Crim R 141 at 144.
In Anderson v The Queen[4] it was held that the evidence of a police officer as to the price and packaging of illicit drugs was admissible. The police officer’s evidence was based primarily on his own participation in, or observations of, controlled purchases of drugs by undercover police officers. That part of the police officer’s evidence was direct evidence of the operation of the illicit drug market in which it was alleged the accused was a participant. Again, the evidence was not opinion but direct observation of a relevant fact. The police officer’s evidence was also based on his study of the reports of the Australian Bureau of Criminal Intelligence. The reports of that agency were produced from police intelligence systematically compiled by police services throughout Australia in the ordinary course of their work. They provided a reliable source of background information which, together with the police officer’s own experience, qualified him to give opinion evidence about the price and packaging practices in the illicit drug market. There is an analogy between evidence of this kind and evidence which can properly be given of lawful trade and market practices.[5]
[4] (1992) 60 SASR 90.
[5] Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 118; Ritz Hotel Ltd v Charles of the Ritz Ltd [No 7] (1987) 14 NSWLR 104 at 105.
The giving of evidence by police officers concerning pricing and methods of distribution of illicit drugs is well-established. In Marinovich v The Queen,[6] in their joint judgment, Malcolm CJ and Kennedy J of the Western Australian Court of Criminal Appeal said:
In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observation. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. With respect, for those reasons we are not prepared to follow Gardner. In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observation and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other.
[6] (1990) 46 A Crim R 282 at 301.
In R v Fazio[7] it was held that a police officer’s evidence as to the price of cocaine was properly admitted because it was based on his own extensive experience in the drug taskforce of the South Australian Police and on the basis of his systematic study of published literature concerning the production and use of cocaine. The police officer had spent six months as the case officer investigating a large criminal cocaine distribution in the course of which he had monitored approximately five hundred telephone calls. In forming his opinions, the police officer had also relied on a digest published by the Australian Bureau of Criminal Intelligence which lists the street prices of drugs in each State of Australia on the basis of information supplied by the police authorities of each of the States, and on his conversations with drug taskforce officers. In a judgment which repays rereading, Bleby J analysed the use which the police officer was entitled to make of the various sources of information in giving opinion evidence as follows:[8]
[7] (1997) 69 SASR 54.
[8] R v Fazio (1997) 69 SASR 54 at 62-64.
To the extent that the information concerning sales in South Australia contained in the Australian Bureau of Criminal Intelligence Digest was relied on, it was, in the circumstances, merely self-serving and of little use. The only source of that information in the Digest for the period in question was the Task Force of which Detective Brown was the most senior member, and could only have come from the other sources on which he relied in giving his estimates in evidence. To rely on such material alone would be to elevate the stream above its source. However, Detective Brown did not say that he relied only on that information. The Digest contained other pricing information as well. However, that was plainly hearsay. The information obtained from other Task Force officers was also hearsay, and the only other information he had was that which he had obtained directly from telephone monitoring. These various sources of information require different consideration.
Evidence based on information from the telephone monitoring, insofar as Brown thereby witnessed actual sales, is not, strictly speaking, opinion evidence at all. Similar source material was treated as primary evidence by this Court in Anderson v The Queen(1992) 60 SASR 90 at 102 per Olsson J, King CJ agreeing, and per Mullighan J at 108.
…
Evidence of price based on hearsay material, such as the Australian Bureau of Criminal Intelligence Digest and information obtained from other Task Force officers is also admissible. It is not, strictly speaking, opinion evidence, but is information outside the ordinary range of human experience, of a type to which persons who have the requisite degree of study or experience may depose. It is the type of evidence of which McGarvie J spoke in PQ v Australian Red Cross Society [1992] 1 VR 19 at 34 . He was there dealing specifically with the use that may be made of information in authoritative scientific publications, of which he said:
By ‘information in authoritative scientific publications’ I mean information of the type which scientific experts of the relevant categories ordinarily treat as data on which they may rely in forming opinions and making decisions within the area of their expertise. Included in such data are facts and opinions stated in articles or reports in scientific publications or in statements by organisations, public authorities or persons regarded by such experts as having knowledge and expertise in the relevant area. Such data includes facts in tables or statistical material on which such experts ordinarily rely.
It is made clear in Borowski v Quayle [1966] VR 382 that expert witnesses may not only base opinions they give in evidence on such data, but may give evidence of fact which is based on such data. Expert witnesses may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information in the sense that they rely for such data not on their own knowledge but on the knowledge of someone else: see R v Abadom [1983] 1 WLR 126 at 129-132; ; [1983] 1 All ER 364 at 366-369 . The considerations which justify that principle are stated in the passages from Wigmore on Evidence on which Gowans J relied in Borowski (at 386-388). See also R W Baker, The Hearsay Rule, p 165.
An expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it. An example is the reliance that may be placed on tables and the like: see Borowski (at 387-388). The data relied on may be a statement of fact or opinion.
When an expert witness bases evidence on data in an authoritative scientific publication it is the evidence of the witness which is thus put before the court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness: Sussex Peerage Case (1844) 11 Cl & Fin 85 at 114-117; ; 8 ER 1034 at 1046-1047; Collier v Simpson (1831) 5 C & P 73; ; 172 ER 883; Cocks v Purday (1846) 2 Car & Kir 269 ; 175 ER 111; Concha v Murrieta (1889) 40 Ch D 543 at 554; Commissioner of Taxation (Cth) v Hamersley Iron Pty Ltd (1980) 48 FLR 134 at 158-160; R W Baker, The Hearsay Rule, p 164 and P Gillies, The Law of Evidence in Australia (1987), pp 354-355.
The nature and source of the information relied on will vary, of course, from one area of knowledge and expertise to another, but for the type of evidence given by Detective Brown, I see no reason why the source of information which he related, albeit in compendious form, should not include the Digest to which he referred and information obtained from other Task Force officers who had a responsibility to obtain such information.
As in the case of true opinion evidence, the giving of evidence of that type will have to relate to a subject matter not wholly within the knowledge and experience of ordinary persons: Clark v Ryan (1960) 103 CLR 486. The witness will also need to demonstrate that he or she possesses sufficient knowledge or experience in the subject upon which the evidence is given to render that evidence of assistance to the court. The witness must be shown to have the necessary qualifications either by study, experience or both: R v Bonython (1984) 38 SASR 45 at 46.
In Australia, authoritative discussions of the admissibility of opinion evidence as to the nature, structure and conduct of bikie gangs is sparse. In R v Hawi & Ors (No 1)[9] the only objection taken to the evidence was as to its relevance and prejudicial effect. The way in which the evidence was to be given and, in particular, the admissibility of opinion evidence to prove the facts in issue was not considered.
[9] (2011) 220 A Crim R 452.
In R v Vinayagamoorthy & Ors[10] the trial Judge permitted expert witnesses to give opinion evidence of the nature, structure and aims of the Liberation Tigers of Tamil Eelam (LTTE). The experts had engaged in extensive scholastic and practical study of the conflict in Sri Lanka and of the rule of the LTTE in particular.
[10] (2008) 200 A Crim R 186.
Opinion evidence given by police officers with extensive experience in the investigation of criminal organisations has been admitted in Canadian courts. However, the evidence, by and large, has been limited to the structure, nature, characteristics, objects and activities of the criminal organisation.[11] Evidence has also been admitted, from officers with sufficient experience, of gang terminology and culture.[12]
[11] R v Lindsay [2004] OJ 4097.
[12] R v Sandham [2009] OJ 4602.
In the Canadian case of R v Wilson[13] the Crown sought to adduce opinion evidence from a police officer about two rival motor cycle gangs, the Crips and the Bloods, in a trial of a member of the Crips for attempted murder of a member of the Bloods. The Crown proposed to rely on the opinion evidence to prove:
·the distinguishing colours of the Crips and the Bloods, the former wore blue bandanas and the latter, predictably, red.
·their respective “territories” generally.
·that the suburban area of Rexdale was the home of a particular chapter of the Crips.
·the rivalry between the gangs.
·the victim’s membership of the Bloods.
·the accused’s membership of the Crips.
·The significance of signals passing between members of the Crips observed by some witnesses of the assault.
[13] (2002) 166 CCC(3d) 294.
In Wilson the defence admitted that the two motor cycle gangs existed, occupied different territories, that there was animosity between them, and that they wore the blue and red bandanas as uniforms. For reasons which are not made clear in the judgment, the trial Judge accepted that the police officer from whom the evidence was to be adduced had specialised training and skill in the area of the operations of motor cycle gangs. Nonetheless, the Judge refused to allow opinion evidence of the membership of the accused and the victim of the Crips and the Bloods respectively. The Judge also found that the police officer had no experience of the Rexdale area and that, therefore, it was outside the scope of the police officer’s field of expertise to testify that there was a Rexdale chapter of the Crips. Finally, the Judge did not allow the police officer to give evidence of the significance of the signalling between the members of the Crips because he had not personally witnessed it.

The conflict between the Crips and the Bloods continued to rage after the attempted murder considered in the case of Wilson. In 2005, a member of the Bloods, E, was killed in a Montreal bar after a rumour circulated between members of the Bloods drinking in the same bar that E was responsible for the recent death of a member of the Crips. The prosecution sought to adduce opinion evidence from a police officer who had made a study of Montreal gangs for over a decade. The police officer was permitted to give opinion evidence of the modus operandi of street gangs, their insignia, and the appellant’s membership of the Crips. The opinion, as to the appellant’s membership, was based on a uniform standard adopted by Canadian police forces and intelligence services which required the presence of at least three of the following six indicia of membership:
·A reliable source of information that the individual is a member;
·Observations of the individual associating with known gang members;
·An acknowledgment of gang membership by the individual;
·Involvement by the individual in gang related crime;
·A court ruling that the individual is a gang member;
·Use by the individual of the insignia of the gang such as colours, paraphernalia or tattoos.
In X v The Queen[14] the Court of Appeal of Quebec held that the evidence of the police officer’s opinion as to membership was properly received. It is not clear from the report of X whether direct evidence was given of the indicia on which the police officer based her opinion that the appellant was a member of the Crips or whether she was permitted to rely on criminal intelligence to prove the existence of one or more of the indicia. In Australia, an expert could not give hearsay evidence of an alleged admission of membership by an accused nor of the finding of another Court that the accused was a member of a gang. In my opinion nor could hearsay police intelligence reports be relied on to prove that an accused associated with gang members or wore the paraphernalia of the gang. Facts of that kind must be proved by direct evidence of the relevant witness’s own observations. Once proved in that way, a nice question might arise as to whether a police witness can give evidence of his or her opinion, that the accused is a gang member. Accepting that the problematic question of gang membership might qualify as a specialised field of study about which opinion evidence can be given, I nonetheless hold grave reservations about judicially recognising a classification system as simplistic as that adopted by Canadian authorities. However, I would not foreclose the possibility that a properly qualified witness’s opinion of gang membership, based on the presence of indicia of membership which have been properly proved by direct evidence, might be admissible.
[14] [2010] QCCA 1627 at [144].
Be that as it may, there is no doubt that a properly qualified expert can give evidence, in general terms, about the significance of certain indicia of gang membership in the context of the general nature, hierarchy, rules and practices of the criminal gang concerned. It would then be a matter for a jury to determine whether or not to draw an inference of membership.
There is also a distinction between evidence of the general purposes, nature and structure of a gang on the one hand and evidence of particular offending or gang conflicts on the other. Opinion evidence of the former kind is admissible when it is founded on the study of systematically collected and validated data confirmed from a variety of sources which may include personal experience. On the other hand evidence of a particular conflict or incident is, speaking generally, unlikely to be sufficiently based on information verified by multiple sources over time. However, if direct evidence is adduced of a particular conflict or incident, as it was in this case, the opinion evidence of a properly qualified police expert on the ways in which gangs are known to wage their internecine conflicts will be admissible to provide the jury with the context in which to evaluate that direct evidence.
VANSTONE J: Soon after 10:00 pm on Friday, 30 September 2011 a house property at Semaphore was stormed by a number of persons. At home at that time were a woman and the four children of her partner, Mark Sandery. Windows at the front and on one side of the house were smashed. The front door was breached. Two persons entered the house through that doorway. One of the intruders fired pistol shots into a front bedroom where two boys were in their beds. Two shots were fired at each bed. One boy sustained hits to the left thigh and foot.
At the time of trial, only the appellant stood charged in relation to this event. He was presented in the District Court on an information charging him with serious criminal trespass and two counts of endangering life, all being aggravated offences. The prosecution alleged he was part of a joint enterprise to break into the house and endanger the lives of the occupants. It was alleged that he was one of those who smashed windows of the house. It was alleged that this attack was an incident of ongoing violence between two motorcycle gangs. Mark Sandery was a prominent member of the “Finks”. The appellant was associated with the “Hells Angels”. The appellant elected for trial by judge alone. He was found guilty of all three offences. The judge gave comprehensive reasons for his findings.
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.
The prosecution also called evidence going to the accused’s movements on the evening of the offences. It was proved that the appellant left his work at Visy Board, Gepps Cross, at 8:45 pm. The appellant’s mobile telephone records were tendered. He was a prolific phone user. He used his telephone regularly during the afternoon and early evening of 30 September 2011. However, there was a period of two hours between 8:24 pm and 10:24 pm when the mobile telephone was not used for any outgoing call. Use of the telephone was resumed at 10:24 pm – some nine minutes after the shooting – when the appellant telephoned his girlfriend.
The appellant’s Magna motor vehicle was recorded by a traffic camera on Port Wakefield Road, Globe Derby travelling north at 10:43 pm. Records of telephone calls subsequent to the attack at Semaphore indicate that the appellant travelled further north in the last hours of 30 September. The appellant withdrew money from an automatic teller machine at Port Wakefield at 11:48 pm. His telephone records were consistent with his returning in the early hours of the morning of 1 October. The prosecution presented evidence as to how long it might take to drive between the various locations referred to. It was demonstrated that his presence at these locations did not preclude him from having been at the house at Semaphore at the time of the attack. The judge referred to this as evidence of opportunity.
The prosecution led evidence tending to connect the appellant with the Hells Angels motorcycle club. It was an agreed fact that his father, Peter, was a full member. During the police search of the appellant’s house on 15 December 2011 a Hells Angels “prospect” vest was located in the appellant’s bedroom. Photographs and footage on the appellant’s mobile telephone were indicative of an affiliation with the club pre-dating the offences. Photographs found included one of the appellant wearing Hells Angels “supporter wear”. Screenshots from the Hells Angels’ website were tendered, in which the appellant was described as a member of the “Big House Crew”, referring to members and associates of the club who are presently incarcerated. References to the appellant were found in documents located at the clubrooms when the police searched them on 15 December 2011. Upon a later search at the same place on 15 May 2012 a “flyer” referring to a “Defence Fund Party” to raise funds for “Aaron” was located. That is the appellant’s Christian name, although spelt differently. By this time he had been arrested for these crimes.
The investigation into the offending included the interception of telephone calls made on the appellant’s number. There was evidence that during conversations on his telephone he had asserted that he was a Hells Angels prospect. His connection with the Hells Angels was not a matter of dispute in the trial.
Also located on the appellant’s mobile telephone was some footage suggesting a link between the appellant and Sandery. The footage showed Sandery driving up to the side of the Hells Angels clubrooms and stopping. (In her evidence C identified both Sandery and her own motor vehicle.) Sandery is then seen to approach the perimeter fence and to throw something over it before running back to the car and driving away. The footage appeared to have been captured by one of the security cameras at the clubrooms. There was expert evidence that the footage came to be placed on the appellant’s telephone no later than Saturday, 17 September 2011, some thirteen days before the shooting. The timing was supported by C’s evidence that Sandery had borrowed her car only on one occasion, being a Friday night two weeks prior to the shooting. The footage appeared to be a mobile phone recording of the security camera images being played back on the security system at the Hells Angels clubrooms. While there was no technical evidence about how the footage came to be recorded on the telephone, the appellant later said it was sent to his phone, rather than being recorded by him. There was expert evidence called by the prosecution to challenge the method by which the appellant claimed to have received the footage.
On its face the circumstantial case against the appellant was strong.
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.
The evidence as a whole could be conveniently categorised as the appellant’s association with the Hells Angels motorcycle club, the association between Sandery and the Finks, the nature of the constitution and characteristics of outlaw motorcycle clubs, particularly the Finks and Hells Angels, and the nature and extent of ongoing conflict between those two organisations.
Grounds 1 and 2 complained of the admission and use of the evidence of Featherby. Ground 1 was framed as follows:
1.The Learned Trial Judge erred in admitting the opinion evidence of the witness Featherby to prove the identity of the attackers, to inform principles of complicity, to negate the applicant’s evidence and to provide the motive for the applicant.
The ground was then particularised, but most of the particulars concerned the weight given to Featherby’s evidence and the judge’s reasoning. Ground 2 was framed as an alternative ground to ground 1 and its particulars went squarely to the use made of the evidence by the judge. For reasons that will become plain I plan to deal first with the question of admissibility and then to deal with all the complaints made about use under the heading of ground 2.
I should say that also before the judge at the stage of pre-trial argument was the prosecution’s Rule 15 application, giving notice, in effect, that this evidence was seen by the prosecution to amount to “discreditable conduct” within the meaning of s 34P of the Evidence Act 1929 (SA). If that were so, and if its admission was for a propensity purpose, then its admission depended on its having “strong probative value”.
In argument on the voir dire, the prosecution contended that the evidence was relevant for three purposes, namely to establish the motive for the appellant to take part in the crimes, to negate any innocent explanation for the forensic evidence tending to implicate the appellant and to establish the nature and extent of the joint enterprise alleged.
For its part the defence objected to the evidence on the basis that it was not relevant, that it was based in part on hearsay, that it amounted to impermissible opinion evidence from a person who was not an expert – and indeed that there was no relevant area of expertise – and that its prejudicial effect outweighed its probative value.
The judge determined to admit the evidence. As a matter of convenience defence counsel accepted that Featherby’s evidence on the voir dire might be received as part of the trial evidence and that his statement could also be received. The judge reserved to counsel the right to object to any individual pieces of evidence which formed part of the Featherby material, but which might be objectionable for reasons not comprehended by the ruling.
Before this Court, counsel for the appellant, Mrs M Shaw QC, took the same points. But she also argued that the evidence was inadmissible because the suggested relevance of the evidence involved impermissible propensity reasoning. Counsel argued that the reasoning involved these propositions: that the Hells Angels had a propensity to engage in violent acts; therefore the Hells Angels were the sort of people who would attack their enemy Sandery; the appellant associated with the Hells Angels; therefore he shared their “corporate” knowledge of Sandery and their motive to harm him.
As to the specific incidents outlined by Featherby, Mrs Shaw argued that, quite apart from their hearsay nature, they were based on anecdotal and imprecise information; the Hells Angels were not always identified as the perpetrators of the violence; indeed one incident involved gangs which were shown not to be the Hells Angels. In addition, counsel argued that incidents of violence subsequent to the attack at Semaphore were irrelevant.
I agree with the judge that to a large extent this evidence was not so much expert evidence but evidence of facts learned by an experienced officer in the course of his experience and admissible for such a purpose. In this context the judge referred to R v Barker (1988) 34 A Crim R 141, Anderson v The Queen (1992) 60 SASR 90, R v Fazio (1997) 69 SASR 54 and R v Morrison (2002) 136 A Crim R 222 which concern evidence of practices within the drug trade. The same calibre of evidence, but related to motorcycle gangs, has been admitted in Victoria and New South Wales: R v Vinayagamoorthy & Ors (2008) 200 A Crim R 186 and R v Hawi & Ors (No 1) (2011) 220 A Crim R 452.

I note that evidence of this sort appears to be regularly received in Canada. In their work Expert Evidence (Freckleton and Selby, 5^th ed, Lawbook Co 2013) the authors observed this, at page 1221:
In Canada a sequence of decisions has permitted evidence about the characteristics of motorcycle groups, including their structure, membership, club rules, colours, patches, clubhouses, intelligence gathering, associates and participation in criminal activities.
For example, in R v Wilson (2002) 166 CCC (3d) 294 a police officer was permitted to give evidence about the clothing of and the territories occupied by two gangs, as well as the fact that there was rivalry between the gangs.
In X v The Queen [2010] QCCA 1627 the Court of Appeal of Quebec dismissed an appeal complaining of the admission of evidence of a similar nature. There, the appellant had been convicted of the murder of a man in a Montreal bar. The prosecution case was that, at the relevant time, members of the “Crips” gang were at the bar commemorating the killing of one of their own a month earlier. Many of those present wore a sweater showing the late member’s likeness. A rumour began to circulate that a person present in the bar had been responsible for that death. (The rumour was later found to be false.) The subject of the rumour was attacked by at least 20 people and repeatedly stabbed after the Crips rallying cry was heard. A police officer was permitted to describe the street gang phenomenon in Montreal. The evidence was admitted as being relevant to both motive and criminal intent. It was also said to be necessary to fully understand the prosecution evidence. The Court of Appeal said:
^[138]We have already determined that this testimony is relevant because, if the appellant was a Crips member or sympathizer, it could establish a motive, a criminal intent, or event his participation in the offence. In this context, the modus operandi of street gangs becomes just as relevant.
^[139]Moreover, the jury could not be aware of the rules governing this type of criminality or the habits of gang members. [The police officer]’s testimony was necessary.
Returning to Australia, in R v Yildiz (1983) 11 A Crim R 115 the Court of Criminal Appeal of Victoria held that evidence from a Turkish man about the attitudes of people in the Turkish community to homosexual conduct and the terms applied to the roles played in such conduct by the participants was properly admitted. The main judgment was given by Murray J with whom Young CJ and Southwell J agreed, but Young CJ added some reasons of his own. Having observed that it was difficult to imagine anyone better qualified to give the evidence he said (at 119):
In using the expression “qualified to give such evidence” I do not intend to refer to qualification as an expert which authorises a witness to give evidence of his opinion in the sense in which “expert” and “opinion” are used in such cases as Clark v Ryan (1960) 103 CLR 486. I intend rather to refer to the fact that [the witness] showed that he had had the experience necessary to qualify him to give the evidence. … Such a qualification is an essential preliminary to the giving of evidence by any witness.
In the case of Hawi cited above, members of the Comanchero motorcycle club were charged with inflicting grievous bodily harm on one or more members of the Hells Angels at Sydney airport. The trial judge, RA Hulme J ruled that the prosecution was permitted to call evidence from police officers regarding the structure of the Comanchero motorcycle club, its hierarchy of command, the duties and responsibilities associated with the positions within the hierarchy, the process of nomination and qualification as a full member, the rules of the club, including not talking about club business outside the club and never talking to the police, as well as evidence of previous animosity between the Comancheros and the Hells Angels. The evidence was admitted as being relevant to whether or not there had been a joint criminal enterprise and, if so, what was its scope. The fact that the accused men were members of an organisation which had rules and from which it might be inferred that they would show loyalty to fellow members was said to be relevant to whether they joined in the enterprise. Previous animosity was also said to bear on that question.
As already set out, Featherby gave evidence of the culture of the two clubs and their operations. This was not opinion evidence but was knowledge gleaned from long observation and study. In my view it was properly admitted.
However, in my opinion, Featherby should not have been permitted to give evidence of the specific instances of violence between motorcycle gangs, in circumstances where he was neither a direct observer nor involved in the investigation of those incidents. It is one thing to allow a police officer to give evidence of his knowledge of practices in the drug trade or his knowledge of the culture of motorcycle gangs where the witness’s knowledge of such matters may well be based on a mass of information, some of it hearsay. Yet, it is quite another to allow a witness simply to relate the details of specific incidents which he has learned from secondary sources. Even expert witnesses in the traditional sense do not do that as a basis for expression of an opinion. I consider that the evidence given by Featherby of specific episodes of inter-gang conflict was, with some possible exceptions based on direct observation, inadmissible.
The admission of inadmissible material amounts to an error of law. This Court will allow the appeal unless “it considers that no substantial miscarriage of justice has actually occurred”: s 353 Criminal Law Consolidation Act 1935 (CLCA).
That question cannot be determined without examining both the significance of this evidence in light of the issues at trial and the use made by the judge of the evidence. Since ground 2 complains of the use of Featherby’s evidence – both those parts which I have found to be inadmissible and the balance – it is convenient to now refer to the arguments in support of that ground.
Ground 2 – errors in use of Featherby’s evidence
This ground complained of error in the judge’s directions to himself “as to the permissible and impermissible use of the evidence of Featherby”.
The particulars of the ground commenced with a complaint about reliance on the specific instances of violence to prove “behaviours, attitudes and motives of the Hells Angels” and asserted that there was no established link between those incidents and the conduct giving rise to the charge. It will be necessary to deal with these arguments when considering whether the wrongful admission of the specific instances must lead to the quashing of the convictions. The balance of the particulars assert that the judge wrongly used Featherby’s evidence as a whole to prove motive, identity and, ultimately, guilt.
In this regard it was submitted that the appellant was not shown to be a prospect, let alone a member of the Hells Angels at the time of the Semaphore attack, and therefore it was illogical to impute any Hells Angels motive to him. This amounted to reasoning to guilt by association.
Counsel argued that the “corporate motive” was used by the judge not only to assist in proving identity, but also to imply a joint enterprise between the persons who were present at the Semaphore scene. Comparable criticisms were made of that latter reasoning process. (This argument was particularised as an aspect of ground 4, but is conveniently dealt with under this heading.)
Mrs Shaw further argued that since the judge relied on motive to prove identity it was necessary for him to be satisfied beyond reasonable doubt that he could impute specifically to the appellant the “corporate motive” in relation to Sandery. It was said that the conclusion of motive was an indispensible link in the chain of proof of guilt and so required proof beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573.
Before examining these arguments it is to be noted that the appellant himself contributed to an understanding of the culture of motorcycle clubs. Such material emerged in his evidence as he described his own connection to the Hells Angels and the activities of the club in which he took part. I shall summarise some of his evidence.
The appellant said that he started going to the Hells Angels clubrooms with his father when he was about 14 or so. That occurred when his father visited from Darwin. His brother and sister would go as well. This was the North Crew clubrooms. There he would hang around with the other children of members. As he became older he would sometimes go with some of the other members or their children. He said that when he was about 19 or 20 he started going to the club more. He would go to parties. From about mid 2011 he attended club meetings, mainly on Friday nights. Some of his friends became “prospects”, which term he explained as “a shit kicker pretty much”, a person who had a role in performing duties and doing chores for members. He said this was like a period of probation, wherein a prospect would prove himself to be trustworthy and worthy of membership. He said he became a prospect in 2011 at the age of 21 years. He said he could not recall the date. His 21^st birthday was on 28 February 2011. He said that he wanted to become a prospect and he asked to become one. He did so because his father was a member and he wanted to be a member with him. He said being a prospect is like a period of probation.
In cross-examination he said he became a prospect after the incident at Sandery’s house. He denied that there was a connection between that incident and his becoming a prospect. Once he was a prospect he would help with various chores and he also helped with some renovations being undertaken at the clubrooms. He had a prospect vest which was at his home at the time of the police search. He knew people who were members had been in trouble with the law. In the period leading up to September 2011 he was friendly with a number of persons who were full members. He explained that Hells Angels identified themselves as “one percenters”, meaning “outlaws”. He knew this at the time he sought to become a member.
The appellant agreed that, leading up to the time of the Semaphore incident, the Hells Angels and Finks were enemies. He said there had been ongoing trouble between the two groups for some years. Although he was aware of violent incidents between the Hells Angels and the Finks, he said they were not of interest or concern, to him. The appellant acknowledged that the Hells Angels club had held a fund-raiser to assist with the legal fees to be incurred in defending himself against the charges.
The appellant said that a week or two before giving evidence (and after a lengthy adjournment in the trial) he asked the member who had sponsored him, Terry Polley, to come and see him in gaol and, when they spoke, Polley was agreeable to his terminating his connection with the Hells Angels.
I now turn to the judge’s findings based on all the evidence about the Hells Angels. The use made by the judge of Featherby’s evidence as a whole is apparent from his reasons at [93] to [98]. Having observed that very little of the substance of the officer’s evidence was challenged, the judge referred to Featherby’s evidence having demonstrated that motorcycle gangs had many features in common with other organisations: memberships, hierarchies, rules, etc. He then observed that there was a culture of violence within motorcycle gangs in South Australia. He said:
^[95]Motorcycle gangs in South Australia however have features that are not shared with most other organisations. There is a culture of violence within them. Some members, although not the accused, wear tattoos extolling violence. Some members, although not the accused, are associated with firearms. Members have been prosecuted for firearms offences and firearms have been found at club premises. There are violent confrontations between the groups seen on CCTV footage and public television footage. Gang members who are victims of violence will not cooperate with police investigations. Associates who break the law and are imprisoned do not face expulsion on that account. They are referred to as belonging to the “big house crew”. There is a culture of disregard for social norms and law enforcement. The accused himself agreed that the Hells Angels call themselves “one percenters”, meaning one percent who are above the law or outlaws. The accused acknowledged that, as at September 2011, he was aware of hostility between the Hells Angels and the Finks. He knew it was part of the history of the two organisations. He agreed that, as at September 2011, the two groups were enemies. He knew that there had been fights between members of each gang. He knew some of the people involved in those fights.
These findings did not rely on that part of Featherby’s evidence which I have found to be inadmissible. The judge then turned to discuss the permissible use of the evidence, approaching it from the starting point of the appellant’s own evidence. He said:
^[96]I turn to articulate the permissible uses and the probative weight of that evidence. The accused has been associated with the Hells Angels from his teens through his father’s association. It was part of his upbringing. He wanted to become more closely associated as he became an adult. He aspired to become a prospect in 2011. He went regularly to club meetings on Friday nights. He was aware of the violent culture of motorcycle gangs, including his own and the Finks. He was aware of the fact, and the level, of hostility between the groups leading up to September 2011.
The judge then found that the appellant’s association with the Hells Angels provided him with a motive towards Sandery. He found that the level of violence perpetrated against the Sandery household would not be so surprising from a group such as the Hells Angels as it might have been from a different sort of organisation: [97]. He said at [98]:
^[98]In my view those findings are permissible uses to which the discreditable conduct evidence may be put. In my view those findings are also amply demonstrated by the evidence. I describe those two findings as evidence of motive and perhaps less precisely, as “context” merely for the purpose of expressing the limits to the probative weight of such evidence.
Importantly, the judge then demonstrated the very limited use of the finding of motive. He went on:
Evidence of motive and context cannot, and does not, prove the accused’s guilt. Those items of evidence are, however, items of circumstantial evidence which tend to negate an innocent explanation for other items of circumstantial evidence such as evidence of opportunity and forensic evidence.
The judge then referred to the footage found on the appellant’s own mobile telephone of Sandery’s hostile visit to the Hells Angels premises thirteen days prior to the Semaphore incident. Of course this circumstance did not rely on Featherby’s evidence. The judge said at [102]:
[102]… it is beyond dispute that he went to the Hells Angels clubrooms about two weeks before the shooting and there got out of the car and approached the perimeter of the premises. He made his presence felt. He was being provocative. His presence was caught on the Hells Angels’ security cameras. That footage was on the accused’s telephone. The accused regularly went to the Hells Angels’ clubrooms on a Friday night. I think it likely that these events occurred over night between Friday 16 and Saturday 17 September 2011.
Following these passages the judge dealt with the defence case.
Later, in a section of the reasons headed “Discussion” the judge considered the issue of motive and referred to the “history of violent confrontation” between the two motorcycle gangs and between individual members of them: [170]. He accepted Featherby’s evidence about the various incidents, at least in a general way. He accepted that there were “confrontations in the months leading up to 30 September 2011”. The judge noted that there was no evidence that the appellant was involved in any of these incidents: [184]. But he had already referred to the fact that the appellant became a prospect of the Hells Angels shortly after the shooting: [183]. The judge drew from this that over a period the appellant had wished to become a prospect and ultimately a member of the club.
The judge then referred again to the footage of Sandery’s visit found in the appellant’s telephone. He referred to this as “powerful evidence of the Hells Angels’ hostility to Sandery, and to the accused’s sharing that hostility”: [186].
The judge then found as a fact that the appellant was present at the Semaphore house and part of the attack on the house: [189]. He outlined his reasons for reaching that conclusion. They included the appellant’s movements on the night, including an analysis of the telephone calls he made and received along with comparison with telephone traffic on other Friday nights, the forensic evidence tending to link the appellant to the Sandery house and the footage on the appellant’s phone of Sandery’s visit to the Hells Angels premises. The judge found that there had been hostility between the two groups, which was growing – and that was demonstrated by the footage of Sandery’s visit – but the judge drew from this merely that “an attack of the sort that occurred at Sandery’s house is not so unlikely as might be the case between two different sorts of groups”: [193]. The judge then turned to the question of whether the appellant was complicit in the offences. He said at [211]:
I am satisfied that the attack on Sandery’s house was launched by Hells Angels’ associates. It was a corporate decision. I do not know precisely what specific motivation or motivations there might have been, but the evidence discloses a number. There was hostility between the Hells Angels and the Finks as groups. The fact that some of the earlier group hostilities were years before does not diminish their effect. There had been ongoing hostilities.
He found that the attack was “an escalation of the confrontations”: [213]. He found there was a degree of planning involved. He found that the attack was “planned and co-ordinated” and that “the object was to terrorise and confuse the occupants”: [218].
In my view the only findings of the judge which are apparently based on that part of Featherby’s evidence which was inadmissible and which were not justified by other evidence were, first, that there was a spate of smaller confrontations in 2011 leading up to 30 September, and second, that the attack of 30 September was “an escalation in the confrontations”: [212] and [213]. All other findings are either based on admissible evidence given by Featherby, or the appellant’s evidence, or other evidence, or were matters of inference from the nature of the crime itself.
Importantly, it is wrong to say that the judge used the two findings set out in the previous paragraph as a means of identifying the group who attacked the Sandery house. Indeed he could not have logically done so. While the judge used the finding of previous violence as some evidence of a collective motive (for example [97] and [181]) he in turn used that finding only in explaining why an attack like that at the Sandery house was “not so surprising” and as “tending to negate an innocent explanation for other items of circumstantial evidence, such as evidence of opportunity and forensic evidence”: [97] and [98].
In any event, the plainly combative visit of Sandery to the Hells Angels’ clubrooms two weeks prior to 30 September itself provided a motive for the Hells Angels to seek revenge against Sandery. The fact that the appellant’s mobile telephone contained footage of that visit tended to link him with Sandery and with that motive. And, as the judge observed, the appellant’s loyalty to the Hells Angels and his aspirations to become a member implied that he would share such a “collective motive”: [193].

I reject the suggestion that the judge’s use of evidence tending to prove a motive attracted the principle in Shepherd. It can be seen from the above that inferences drawn about the appellant’s motive became just another circumstance to be considered.
I deal next with Mrs Shaw’s contention that the judge’s use of the evidence was a propensity use. I do not agree with that argument. It is common ground that proof of a motive is not an essential step to proving guilt of a crime. However, where a person commits a crime which appears to be other than random, it is to be expected that some connection, direct or indirect, between that person and the target would be found. It is natural that a trier of fact would weigh such evidence. Proof of a motive cannot, of itself, prove a crime. But it can throw light on and perhaps strengthen other evidence that the accused person committed the crime. However, evidence of motive is not evidence of propensity. Here the evidence was neither presented as, nor used as evidence of propensity. For example, the judge did not say that the evidence of ill-feeling between the two motorcycle clubs or the history of violence between the two clubs identified individual Hells Angels – or even identified a group of persons – as the persons responsible for the Semaphore attack. Plainly, Sandery had many enemies. That submission was made to the judge by defence counsel and accepted by him: [185]. While this evidence might have tended to narrow the field of persons or groups who were likely to have been involved in the attack at Semaphore, it could not identify such persons. Rather, its proper use, and the use to which it was put, was to assist in interpreting the significance of the other items of circumstantial evidence, such as what the judge loosely called “opportunity”, and the forensic evidence. The judge explained this, as already noted, at [98].
Much the same can be said of the way the evidence was used in interpreting the scope of the plan and the execution of the crimes. It was readily apparent from the evidence of what occurred at the house that this was a planned and co-ordinated attack. So much was obvious from the simultaneous arrival of several motor vehicles at the scene, the bringing to the house of a number of weapons, the clothing worn by the attackers and the simultaneous attacks on the windows at the front and northern side of the house and on the front door. That evidence alone justified a finding of a collective motive and plan. Indeed this conclusion was indicated much more graphically in relation to the Semaphore attack, than it was in relation to the other incidents described by Featherby in his evidence.
It is said that the judge indulged in reasoning that amounted to guilt by association. I do not agree. It is plain from the appellant’s own evidence that he had a long association with the club and that he wished, over a period, to become a prospect and ultimately a member of that club. In those circumstances it was open to the judge to infer that the appellant would have aligned his interests to those of the club. The appellant specifically agreed that at the time of the Semaphore incident the Hells Angels and the Finks were enemies. It was open to the judge to evaluate the appellant’s denial of knowledge of Sandery in the context of the evidence of hostility between the two clubs. But again it is necessary to observe that evidence of motive, even less a collective motive, does not prove a crime and was not used in direct proof of the crimes; rather, it was used as “context” and to help to negate innocent explanation for the other items of circumstantial evidence connected to the appellant: [98].
I do not consider that there is anything in the point that the appellant was not a prospect (if that be so) or a member at the time of the Semaphore event. In terms of his own evidence of a long-standing association with the Hells Angels, originally through his father, but in later years because his own friends were prospects and members, he was closely aligned with the group. As already mentioned, he said in cross-examination that he became a prospect quite soon after the Semaphore incident. On his own evidence he attended the Hells Angels Friday night meetings even before becoming a prospect. His close association with the club was also confirmed by the fact that, after his arrest and while he was in custody, the club held a fund raising event to collect money to aid his defence.
Proviso
I return, then, to the question of whether the proviso to s 353(1) CLCA might apply in this case, that is, whether, notwithstanding the error of law in admitting inadmissible evidence, the court considers that no substantial miscarriage of justice actually occurred. If the error is such that the trial process was fundamentally flawed, there will be no occasion for the application of the proviso: Lee v The Queen (2014) 308 ALR 252 at [47]-[48]. In circumstances where the admission of that evidence led to the appellant losing a chance of being acquitted which was fairly open to him, then it could not be said that there had been no substantial miscarriage of justice: Wilde v The Queen (1988) 164 CLR 365 at 371-372.
In examining this question this Court is here better placed than upon many other appeals, both because the case under consideration is a circumstantial one and also because the use to which the inadmissible evidence was put is exposed by the judge’s comprehensive reasons for decision.
I have reached a state of satisfaction that no substantial miscarriage has occurred. As I have endeavoured to explain, the main thrust of Featherby’s evidence dealing with the characteristics of and culture of motorcycle clubs was admissible, and was largely supported by the appellant’s own evidence and the footage on the appellant’s mobile telephone. Featherby’s evidence of specific episodes of violence between various motorcycle groups added very little to the case. Then, the use made of Featherby’s evidence, even the admissible parts, was very limited. Without his evidence, the case would have been almost exactly the same, and no weaker.
The case against the appellant was compelling. I do not accept that by reason of the admission of the inadmissible material the appellant lost a chance of being acquitted which was fairly open to him. In my view, despite the error in admitting a certain part of Featherby’s evidence, there was no substantial miscarriage of justice.
I would not allow an appeal on the basis of grounds 1 or 2.
Ground 3 – complaint that the judge erred in his approach to the appellant’s evidence
This ground encompasses complaints about the judge’s approach to the appellant’s evidence. The first of these argues that the judge reversed the onus of proof when assessing certain aspects of evidence given by the appellant.
It is argued that in his reasons the judge criticised the appellant’s inability to recall his movements and phone calls on the night of the attack and in doing so cast a positive requirement on the appellant to provide precise detail about these matters, reversing the onus of proof. It is put that the judge used the appellant’s lack of recollection against him, despite a lapse of around ten weeks before the allegations were first put to him by police and his having no cause to remember his movements on the night of the attack.
A similar complaint was made about the judge’s adverse assessment of the appellant’s professed lack of recollection about exactly when he became a prospect of the Hells Angels and his scant knowledge about the club rules. The appellant submits that this reversed the onus of proof by effectively requiring him to provide precise detail on these topics where he could not.
At trial the appellant gave evidence that he had no clear recollection of many of his movements on the night in question, because it was “just a usual Friday night for [him], nothing was out of the ordinary”. He could not remember making phone calls to his girlfriend that evening, but he accepted that he had done so. He could not recall the content of the phone calls between himself and other Hells Angels’ associates in the early hours of the following morning.
In contrast, he said he recalled having an argument with his girlfriend and driving to Port Wakefield with her late that night to sort it out, though he could not remember what they did once there. He also recalled seeing a report of the shooting of Mark Sandery’s son in the news within 24 hours of it occurring and agreed that it was a “big deal”. Despite his recollection of these matters, he maintained that it was an uneventful night for him and he had no reason to reflect on his movements until spoken to by police about the incident.
The passages in the judge’s reasons complained of are at [161] to [164] and [191]. Those passages can be summarised as a rejection of the appellant’s assertions that he had no cause to remember his movements on 30 September 2011 against his specific recollections of the argument with his girlfriend and the news reports; a finding that the appellant sought to distance himself from the balaclava and the hammer and that his evidence in this regard “lacked credibility”: [164]; and a rejection of the appellant’s assertions that he could not remember when he became a Hells Angels prospect and knew little about the club’s rules: [164].
In my view, the judge’s conclusions did not amount to placing a positive requirement on the appellant to supply precise detail about events. The judge was simply identifying why he found aspects of the appellant’s evidence to be implausible and lacking credibility and why he ultimately did not believe his account: [159], [162] to [165]. It was open to him to reject the appellant’s disclaimer of recalling his movements, against his reference to the argument and the news items. Both events would (and did) stay in the mind. It was also open to the judge to find that the appellant’s evidence about the timing of becoming a prospect and about the club rules lacked credibility having regard to his own evidence of long involvement with the club: [164]
Throughout his reasons the judge reiterated that the onus was and remained on the prosecution: [8], [137], [159], [165] and [167]. He clearly noted that rejection of the appellant’s evidence did not prove guilt: [159]. There is no substance to this complaint.
It is also said that the judge erred in rejecting the appellant’s evidence before considering all of the prosecution evidence. In essence it complains about the sequence in which the judge dealt with the evidence in his reasons. The appellant submits that only after considering all the evidence from both prosecution and defence should the judge have made findings about proof of the prosecution case.
In many cases, particularly where the evidence is direct evidence, that would be a natural sequence. Here the judge chose to critically examine the appellant’s evidence before moving to his final conclusions. It may be noted that comprehensive reasons were delivered some two months after submissions were heard. It should not be assumed that the judge’s own analysis of the entire case was compartmentalised in the precise sequence found in the written reasons.
This complaint is in effect one about the structure of the reasons and is not made out.
Ground 4 – complaint that the judge erred in finding that the circumstantial evidence proved both presence and participation in a joint enterprise
The appellant complains about the judge’s findings relating to evidence of the appellant’s movements at the time of the Semaphore attack. It is argued that the judge equated his rejection of the appellant’s “alibi” with positive evidence of opportunity amounting to an item of circumstantial evidence, which in turn he elevated to evidence of involvement. Having rejected the alibi, it is submitted the judge should have made his assessment as if the appellant had not given evidence at all.
The appellant gave evidence that at the time of the attack he was either at the Hells Angels’ clubrooms or driving to his house to pick up his girlfriend.
The prosecution presented no evidence of the appellant’s precise whereabouts at the time of the attack. It did, however, lead evidence of telephone calls made on his mobile phone and of his location before and after the attack. Then there were estimates of travel times between relevant points to support the general inference that he was at Sandery’s house at the time of the attack. From that evidence, the judge concluded that the evidence of his movements “allow[ed] time” for the appellant to have been at the Sandery house at 10.15 pm: [29]. He called this body of evidence evidence of “opportunity” throughout his reasons: [29], [191].
In my view, the judge did not use the term “opportunity” in the classic sense of, for example, proof that a defendant was alone with the victim at the time of a murder or was in the bank at the time of a bank robbery. In this case, he used it as a convenient term to encapsulate his conclusion about the body of evidence relating to the appellant’s whereabouts. In doing so, the judge did not overstate what use could be made of the evidence. He did not put it higher than that it allowed time for the appellant to have been at the crime scene. The judge emphasised that this evidence alone did not prove guilt: [29]. A finding at this level was echoed later in the reasons when, adding this factor to the circumstantial evidence, the judge concluded that the appellant was indeed at the scene: [191]-[193]. The appellant’s submission that the “opportunity” evidence was elevated to evidence of involvement is flawed.
This ground is not made out.
Remainder of complaints under grounds 3 and 4
The remaining complaints under grounds 3 and 4 were not argued orally. Broadly, they assert that inferences drawn by the judge were not available. I have considered them – to the extent that I understand them – and I find they have no substance. I do not propose to deal with them in these circumstances.
Likewise, the balance of the grounds were not addressed orally. Mrs Shaw advised the Court that she relied on the outline of argument filed on the appellant’s behalf. I propose to deal briefly with them.
Ground 5 – complaint about finding that the appellant knew that the shooter had a firearm and would fire it inside the house
The appellant argues that the judge failed to set out what had to be proved as a basis for finding that the appellant was complicitous in the endangering life charges and that his finding that the appellant knew that a firearm might be fired was flawed.
In my view this ground is misconceived.
This ground and the written argument in support of it confuse the need for proof of the scope of the common purpose with the principle to be applied where it is contended that one of the confederates acted in a way not comprehended by the plan. There was no such contention by the appellant. On the contrary his evidence was that he was not present.
The principle relating to common purpose is as follows. Where two or more persons reach an understanding or arrangement amounting to an agreement that they will commit a crime and they do between them, in accordance with the continuing understanding or arrangement, all those things that are necessary to constitute the crime, then they are equally guilty of the crime regardless of the part played by each: McAuliffe v The Queen (1995) 183 CLR 108, 114.
In this case the prosecution alleged that the agreement was to commit a serious criminal trespass and to endanger the lives of the persons within the house. It was not necessary for the prosecution to prove precisely how it was agreed that would be done. This is the way the case was presented to the judge. Counsel for the prosecution said this:
Whilst there are many crimes that unfold and develop along the way, this was not one of those. They didn’t stop to steal, they didn’t stop to threat[en]. They went, they smashed the windows, kicked their way in, shot the boys and fled. In my submission, putting aside who was involved for the moment, the only logical inference based on that evidence is that there was a joint enterprise to do exactly what they did that night.
The best evidence of what was agreed was the evidence of what was done on arrival at the house. At least three weapons were carried. The house was stormed. At least two persons entered the house. No less than four shots were fired in the front bedroom where the two boys slept. One of the boys was shot twice in the leg. The confederates arrived and left en masse. There is no suggestion that the intruders were confronted or in any way forced to depart from the plan. In these circumstances it can be readily inferred that what was done was in accordance with the arrangement. The acts of endangering life were presented as foundational crimes. There was no need to examine what further crimes might have been contemplated by the confederates.
The judge found that the attack was “planned and co-ordinated”: [218]. The object was to terrorise and confuse the occupants. Part of the plan was to take weapons. The appellant took a hammer: [224].
The judge went further and discussed what knowledge the participants had of the firearm and the possible use of it. I do not consider that he was obliged to go so far. In my view the clear inference from the facts as found was that the plan was to break into the house and endanger the lives of the occupants. The manner in which that might ultimately be accomplished was not a matter in need of proof.
Ground 6 – that the verdicts are unreasonable, unsatisfactory and against the weight of the evidence
It is argued that the verdicts are unreasonable or cannot be supported having regard to the evidence: s 353 CLCA. The complaint is that on the whole of the evidence it was not open to the judge to convict, that is, that he must have entertained a reasonable doubt as to the guilt of the appellant: M v The Queen (1994) 181 CLR 487 at 495; MFA v The Queen (2002) 213 CLR 606 at 614. The appellant submits that such was the equivocality of the various strands of circumstantial evidence relied on by the prosecution, the judge must have acquitted.
I do not agree that the judge’s findings of guilt were either unreasonable or not able to be supported having regard to the evidence. On the contrary, I consider that the prosecution case contained cogent evidence that the appellant was present at the scene and taking part in the attack and, once that was accepted, it was a short step to find that he was part of a joint enterprise to endanger the lives of persons within the house. In a circumstantial case it is perhaps unwise to single out individual pieces of evidence, because it is the entirety of the evidence which needs to be assessed. However, in my mind the combination of the DNA evidence on the hammer and the glass in the appellant’s car and in the balaclavas of the appellant and his brother, together with the footage on the appellant’s telephone were striking features of the prosecution case.
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.