R v Copeland
[2010] SASCFC 11
•2 August 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COPELAND
[2010] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
2 August 2010
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
Appeal against conviction – information contained six counts – whether trial judge erred in refusing to sever counts 2 and 6 from trial on other counts – whether evidence of counts 2, 3, 4, 5 and 6 cross-admissible – whether trial judge gave jury adequate directions with respect to use of similar fact evidence and cross-admissibility – whether trial judge erroneously refused to discharge jury – whether trial judge erred in failing to direct the jury that they should consider the evidence of the appellant in the same way as that of any other witness – whether defence case adequately put to the jury – whether argument as to implications to be drawn from appellant's willingness to take part in identification parade erroneously withdrawn from jury – whether convictions unsafe and unsatisfactory.
HELD: appeal dismissed – the trial judge did not err in refusing to sever counts 2 and 6 – counts 2 and 6 properly included in series of offences which exhibited underlying unity – evidence in relation to count 6 was cross-admissible with other counts of which the appellant was convicted – evidence of counts 2, 3, 4, 5 and 6 cross-admissible – trial judge gave adequate and proper directions in relation to use of similar fact evidence and cross-admissibility – no possibility of miscarriage of justice arising from incident which led to request for the jury to be discharged – sufficient direction given in relation to the proper approach in considering appellant's evidence – trial judge’s decision to withdraw evidence of appellant’s willingness to participate in identification parade could not have affected the result of the trial – verdicts not unsafe or unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
Moorov v H M Advocate (1930) JC 68; Director of Public Prosecutions v Boardman [1975] AC 421; R v Armstrong (1990) 54 SASR 207; Hoch v The Queen (1988) 165 CLR 292; R v Ong (2001) 80 SASR 537; R v Copeland (1997) 194 LSJS 1; M v The Queen (1994) 181 CLR 487, discussed.
R v COPELAND
[2010] SASCFC 11Court of Criminal Appeal: Doyle CJ, Duggan and David JJ
DOYLE CJ: I agree with the orders proposed by Duggan J. I agree also with his reasons. There is nothing that I wish to add.
DUGGAN J: The appellant was found guilty by a jury of using a vehicle without consent, attempted aggravated robbery and three charges of aggravated robbery. He was found not guilty of a further charge of aggravated robbery. He now appeals against the convictions.
It was alleged by the prosecution that the robbery offences took place within a short time of one another on the afternoon of 12 October 2007. The prosecution case rested almost entirely on circumstantial evidence. Identity was the main issue at the trial.
The dates, places and approximate times of the alleged offences were as follows:
Count Description of Offence Date Location Approximate Time[1] 1
Using a motor vehicle without consent
10.10.07 – 12.10.07
Kent Town and other places
2
Aggravated robbery
12.10.07
Sombrero Motor Inn, Prospect
2.20pm
3
Attempted aggravated robbery
12.10.07
The Payneham Vet Centre
2.45pm
4
Aggravated robbery
12.10.07
Burnside Vet Clinic
3.05pm
5
Aggravated robbery
12.10.07
Devereux Vet Clinic, Tusmore
3.12pm
6 Aggravated robbery 12.10.07 Blackwood Eye Centre 3.35pm [1] The times are based on the times of the telephone calls reporting the robberies to the police.
The appellant was found not guilty on the second count and guilty on the other counts in the Information.
Ground 1
The first ground of appeal asserts that the trial Judge fell into error in refusing to sever counts 2 and 6 from the other counts. It is conceded that a joint trial on the remaining counts was appropriate.
According to the prosecution case, the same man committed all six offences. It was claimed that there was an underlying unity between the various offences which supported this contention. Reliance was also placed on what was said to be a striking similarity in the circumstances of the robbery offences.
The robberies occurred between approximately 2.20pm and 3.35pm on 12 October 2007. The locations of the premises were such that an offender could have committed all offences if he had access to a vehicle. In the case of each offence, except the Sombrero Motor Inn robbery (count 2), the offender brandished a sawn‑off shotgun which had two barrels side by side.
The prosecution alleged that a 2002 Mitsubishi Magna was used in the commission of the offences. The car was a silver colour with a gold tint. It was established that the vehicle was stolen from premises at Kent Town on 10 October 2007 (count 1). When the vehicle was recovered after the robberies registration plate XNR 801 was fixed to the front of the vehicle and registration plate XGL 776 was fixed to the rear of the vehicle. A third registration plate, XMO 159, was found in the boot.
A large silver sedan with registration plate XMO 159 was seen departing from the Burnside Vet Clinic after the robbery at those premises. Witnesses to the Blackwood Eye Centre robbery variously described a steel grey or blue grey Mitsubishi Magna, a small silver sedan and a square shaped pale silvery blue Mazda. There was no sighting of a vehicle leaving the scenes of the other robberies.
The stolen vehicle was recovered at Gilberton on 18 October 2007. At the time of the robberies the appellant lived at Regent Street, Hackney, a short distance from where the car was stolen.
On 13 October 2007 a sawn‑off double barrelled shotgun was found wrapped in a raincoat under some bushes in Horswell Street, Hackney, a short distance from where the appellant was living. The raincoat was identified by the owner of the Magna vehicle. He said he kept it in the boot of the vehicle. A swab taken from parts of the firearm revealed a mixed DNA profile. According to the evidence, the incomplete major component of the DNA was approximately 598,000 times more likely to match the DNA profile of the appellant than that of an unrelated individual.
A gardening glove found in the vehicle was submitted for DNA analysis. The owner of the vehicle said it did not belong to him. There was evidence that a DNA profile from the inner surface of the glove was greater than one billion times more likely to match the appellant’s profile than that of an unknown individual.
The appellant gave evidence at the trial. He said that he purchased a set of gloves and used them at his home address. He said that he left the gloves outside after using them and does not know what happened to them. In relation to the firearm he said that one morning a man came to the door and asked if the other resident of the house was there. The appellant said he was not and the man took a firearm from a bag and asked if the appellant knew someone who might want to purchase it. The appellant said he put his hands out, took hold of the firearm and then pushed it back into the bag.
I have said that the argument on joinder relates only to the second and sixth counts. It is not disputed that the robbery offences are part of a series of offences of the same or a similar character (Criminal Law Consolidation Act 1935 (SA) s 278). However, it is contended that the evidence on these two counts is not cross-admissible on the other counts.
The second count
This count alleged the offence of aggravated robbery at the Sombrero Motor Inn at Prospect. This incident took place at approximately 2.20pm, twenty‑four minutes before the attempted aggravated robbery at the Payneham Vet Centre.
The offender approached the owner of the motel who was standing alone behind the reception desk. The man had a bundle of bags in his left hand. His right hand was free. The owner said he realised that there was something in the bags and the man then started to reach into them. He said the item in the bags “had some length on it”, but he could not see what it was. As the man was doing this he said “This is…”. At this point the owner ran out to the back of the motel. When he returned the cash tray and its contents were missing.
The timing of this incident was significant and the approach to the person behind the reception desk exhibited the pattern of the subsequent incidents. However, the similarities ended there. It is perhaps not surprising that the jury found the appellant not guilty on this charge. However, I think there was probably enough in the circumstances of the incident, its timing and location, coupled with the fact that other similar incidents occurred in quick succession thereafter, to justify its inclusion as part of the series of offences which exhibited underlying unity.
In any event, the refusal to sever this count from the remainder of the counts in the information could hardly have contributed to a miscarriage of justice. There were four other alleged robbery offences and the appellant was found not guilty of this particular charge. It would be taking the matter too far to hold that the inclusion of this charge prejudiced the appellant to such an extent as to justify setting aside the convictions on the other counts.
The sixth count
The offender in the robbery at the Blackwood Eye Centre walked into the Centre while an optometrist was talking to a client. There were two other staff members behind the reception counter. The man was carrying some plastic bags. He pulled open one of the bags to reveal a sawn-off double barrelled shotgun.
Two witnesses from the Blackwood Eye Centre described the offender as wearing dark clothing. One of these witnesses said he was wearing a dark baseball cap or perhaps a beanie and that he had a grey or black stocking over his face. The other said he had a veil or mesh over his face which gave the impression of a beekeeper. A third witness said he had dark grey coloured mesh to half way down his face.
A witness from the Payneham Vet Clinic said there was a black stocking over part of the offender’s face. According to a witness from the Burnside Vet Clinic the offender was wearing a black stocking over his face. One witness from the Devereux Vet Clinic described the person wearing a dark coloured hat similar to a beekeeper’s hat. Another witness from that clinic said that the man had mesh over his face similar to that worn by a beekeeper. Witnesses from the Blackwood Eye Centre gave varying estimates of the person’s age ranging from 50 to 60 years, to one witness who estimated the man was 60 to 70 years. Estimates from the other robberies were around 40 years.
The timing of the robberies is another link between the counts. The offences were committed throughout the same afternoon. The Blackwood Eye Centre robbery took place at approximately 3.30pm. The closest robbery in time to it was at the Devereux Vet Clinic at approximately 3.10pm.
It is also clear that a double barrelled sawn‑off shotgun was used at the Blackwood Eye Centre as was the case with three of the other robberies.
Further, there were descriptions of the vehicle seen at the Blackwood Eye Centre which were consistent with the Magna vehicle to which reference has been made. The approach to the person behind the reception desk was also common to all the robberies.
In my view the evidence in relation to the Blackwood Eye Centre robbery justified the joinder of that count with the others. The evidence on this count, along with the evidence on the other robbery counts, combined to reveal “an underlying unity, comprehending and governing the separate acts”.[2] There was clear support in the circumstances relating to the Blackwood Eye Centre robbery to justify leaving it to the jury as one in a series of robberies with distinct features in common. It is clear that there was cross‑admissibility of evidence between this count and the other counts on which the appellant was convicted.
[2] Moorov v H M Advocate (1930) JC 68 cited by Lord Morris in Director of Public Prosecutions v Boardman [1975] AC 421 and by Cox J in R v Armstrong (1990) 54 SASR 207 at 216.
Ground 1A
This ground asserts that the evidence in relation to counts 2, 3, 4, 5 and 6 was not cross-admissible and therefore the verdicts are unsafe and unsatisfactory.
In my view, the evidence was cross-admissible. I have explained why in discussing Ground 1.
First, an underlying unity is to be found in the circumstances of the robberies. I have referred to the approximate times of the offences, the modus operandi on each occasion, aspects of the offender’s dress, the use of a sawn‑off shotgun and the descriptions of the vehicle involved. Secondly there are the items of evidence which link the appellant to the robberies, namely, the gun and the car.
In Hoch v The Queen, Mason CJ, Wilson and Gaudron JJ said: [3]
The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged: see Dixon J.’s discussion in Martin v Osborne[4]. In that same case Evatt J pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for “admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence”[5].
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Perry v The Queen[6]; Sutton v The Queen[7]; Reg. v Boardman[8]. That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.
[3] (1988) 165 CLR 292 at 294-295.
[4] (1936) 55 CLR 367, at p. 375.
[5] (1936) 55 CLR 367, at p. 385.
[6] (1982) 150 CLR 580, at pp. 586-587, 605, 610.
[7] (1984) 152 CLR 528, at p. 563.
[8] [1975] AC 421, at pp. 439, 444.
In my view the evidence to which I have referred possesses the cogency required to answer this test and the probative value of the evidence outweighs any prejudicial effect which might arise from the joinder of the charges.
Ground 1B
This ground of appeal is as follows:
The Learned Trial Judge failed to give the jury adequate, or proper, directions with respect to the use of similar fact evidence and/or cross-admissibility.
PARTICULARS
iFailed to adequately direct that they must be satisfied beyond reasonable doubt that all robberies were committed by the same person.
iiFailed to direct the jury that, if they found that all robberies were committed by the one person, they were required to be satisfied beyond reasonable doubt that one of the robberies was committed by the appellant before they could conclude that the appellant was guilty of all robberies.
iiiFailed to give any, or adequate, directions on items of evidence which might be cross admissible if the jury were unable to be satisfied beyond reasonable doubt that one of the offences was committed by the accused.
The appellant seeks an extension of time to add this ground of appeal and permission to argue it.
It was the prosecution case that the same person committed all of the robbery offences which were charged. The evidence relied upon for this contention has been summarised in the discussion of the first ground of appeal. I have expressed the view that evidence on the robbery counts on which the appellant was convicted was cross-admissible.
In my view the trial Judge was not required to instruct the jury in the manner asserted in this ground of appeal. In particular, there was no requirement to direct the jury that they must determine whether all offences were committed by the same person and, if they reached that finding, to consider whether one of those offences was proved beyond reasonable doubt before concluding that the appellant was guilty of all offences.
The case against the appellant in relation to the individual counts had the capacity to strengthen the case on the other counts. An example is provided by the evidence that a motor vehicle with the registration number XMO 159 was observed at the scene of the Burnside Vet Clinic. A plate with the same number was found in the boot of the Magna. There was evidence linking the appellant with this vehicle. The evidence would be given further weight if the jury were satisfied that the same person committed the other robberies.
As already observed, the evidence of the use of a particular type of gun at all robberies except the Sombrero Motor Inn and the evidence connecting the appellant to a gun which answered that description, provided a further link between the appellant and the robberies without the necessity of a finding of guilt on one or more counts.
I would reject the contention that the summing up was inadequate with respect to the issue of cross-admissibility and that the trial Judge was bound to instruct the jury along the lines set out in the particulars to this ground.
As the jury were instructed, the effect of the joint trial and the fact that evidence on one charge was cross-admissible with respect to the other charges, meant that the jury were entitled to consider the whole of the evidence in relation to each charge, but that, ultimately, they were required to consider each count separately.[9]
[9] Summing up, AB 81.
A convenient way for the jury to conduct its deliberations would have been to consider first whether it had been established that the same person committed all offences. The trial Judge explained to the jury that this was the first step in the prosecution case when she said in her summing up:[10]
The prosecution says that the essential steps of the prosecution case were firstly that each of the robberies were by the same person and that this accused was the offender and those things they seek to prove beyond reasonable doubt.
However, this was not a case in which the evidence in relation to one charge could be used in relation to another charge only if it had been established that the appellant was guilty in relation to the first charge.
[10] Summing up, AB 126.
The evidence which linked the appellant to the offences was identified for the jury from the commencement of the case and the trial Judge referred to it in the course of her summing up. Reference has been made to this evidence in the discussion on the first ground of this appeal.
In my view, the summing up equipped the jury to assess this evidence in an appropriate manner. The instructions included an explanation of the use of circumstantial evidence which was the essence of the prosecution case.
I would extend the time to add this ground of appeal and give permission to argue it but dismiss the ground.
Ground 3
This ground complains of the failure of the trial Judge to discharge the jury following an incident which took place during the cross-examination of the appellant.
The prosecutor cross-examined the appellant about his physical appearance at various times in the past and, in particular, the hairstyles which he adopted from time to time. During this cross-examination the prosecutor had before her a bundle of photographs. The photographs were not tendered in evidence. At one stage during the cross-examination the trial Judge asked the jury to retire to the jury room and the following discussion took place:[11]
[11] Transcript of Proceedings, R v Copeland (District Court of South Australia, Davey J / S McDonald, 29 January 2010) at 499.
HER HONOUR: Ms McDonald, you may be unaware of this but I’m aware and probably the jury are that you’re holding photographs in your hand, one of which is clearly visible to the jury I suspect, because it is to me.
MS McDONALD: Sorry.
HER HONOUR: If they are not tendered that’s not appropriate for the jury to see that. As I say I can clearly see the photographs and that means the jury can.
MS McDONALD: Thank you for raising that. I’ve deliberately been attempting to turn them over and so forth.
HER HONOUR: I think that its becoming very obvious so I’d ask you to desist from doing so unless you are going to do something formal.
MS McDONALD: Yes. There may be some that are going to be the subject of some evidence –
HER HONOUR: You’re going to have to do it a little more discreetly if –
MS McDONALD: Yes.
HER HONOUR: I’ll be saying nothing to the jury.
The jury then returned to the courtroom.
On the following day counsel for the appellant at the trial applied for a discharge of the jury. He said that the photographs which had been in front of the prosecutor were taken at the time of a previous arrest or arrests and, if seen by a jury member or members, would have been prejudicial to the appellant.
The trial Judge then explained further what she had seen:[12]
I don’t know if they were arrest photos, but they were photos that appeared to be of [the appellant]. I don’t know if they were arrest photos. I wouldn’t go that far, but they were a bundle very similar if not the same as the bundle that you have in front of you. It’s only the first photo that would have been visible possibly to the jury.
I wasn’t sure what was going on. I wasn’t sure whether they were being tendered or not, and what was happening to my observation is that Ms McDonald was referring to other photos in the bundle, not the top photo, and had it open, and I make no – I’m sure she was unaware that she was doing it, but I was conscious of being able to see it and therefore that the jury would be able to see it and hence I adopted the strategy that I did, and I didn’t want to highlight the matter or embarrass anyone in any way, so I didn’t have the feeling or impression that the matter was deliberate at all.
…
I wasn’t able to see and I don’t believe the jury would have been able to see the bundle – or it wasn’t necessarily a bundle like that. It was very similar to what you’ve got in your hand from what I’m seeing, but actually it wasn’t flicking through in the way you describe; it was to my observation and recollection Ms McDonald was looking at what appeared to me, and I knew they were photos of the accused in that bundle because of the voir dire matters that we had discussed earlier. I’m not sure that the jury would have known, but she was asking questions from that and she put it down on the bar table on a couple of occasions, but because it was the top photo, I didn’t know what was going on, I couldn’t see the photo clearly, but it was because I could observe that and I wasn’t sure whether the material was going to be tendered but I wanted to alert to Ms McDonald what I was seeing.
[12] Transcript of Proceedings, R v Copeland (District Court of South Australia, Davey J, 1 February 2010) at 534-536.
The trial Judge refused to discharge the jury.
The photographs were slightly smaller than A4 paper in size. Some of them had police notations on them, but it is clear that these could not have been seen by any juror. The photographs depicted the head and shoulders of the appellant.
Mr Vadasz, for the appellant, drew attention to the fact that, in the course of the cross‑examination, before it was interrupted by the trial Judge, the jury sent the trial Judge a note stating that they would like to know the accused’s address prior to his address at the time of the alleged offences. Mr Vadasz argued that the question suggests the jury were endeavouring to find out by an indirect question whether the appellant had been in custody at some time prior to the alleged commission of the offences.
An affidavit sworn by the appellant was tendered at the hearing of the appeal. The appellant states that while he was being cross-examined the prosecutor was located at the southern end of the bar table, about a metre from the jury. He stated that while the prosecutor cross-examined him she turned over some of the photographs in front of her. He said from where he was seated in the dock he could see that the photographs were “mug shots”. He said members of the jury appeared to look at the photographs. He thought their demeanour towards him changed after this had happened.
The trial took place in Courtroom 3, one of the two largest courtrooms in the Sir Samuel Way Building. It would have been impossible for the jurors to read any of the writing on the photographs. The trial Judge said in the course of the discussion at the time that she could not see the photographs clearly. Her Honour said that she did not know whether the photographs were going to be tendered and adopted a cautious approach.
In all the circumstances, I would reject the argument that there was a possibility the jurors could see enough of the photographs to assume they were police photographs. The cross-examination did not give any indication of the provenance of the material in the prosecutor’s possession. The question asked by the jury does not give rise to any real concern that they wanted to know whether the appellant had been in gaol.
In my view the material before the Court on this issue does not give rise to the possibility of a miscarriage of justice arising out of the incident.
Ground 4
This ground claims that the trial Judge erred in failing to direct the jury that they should consider the evidence of the appellant in the same way as the evidence of any other witness.
The following directions were given by the trial Judge with respect to the giving of evidence by the appellant:[13]
Ladies and gentlemen just because the accused gave evidence in this trial does not mean that the responsibility of the proof changes. The accused still does not prove anything. As I will tell you in a moment you can have regard to his evidence as any other witness but just because he gave evidence does not change the fact that the prosecution still must prove his guilt beyond reasonable doubt.
…
You are also aware that he chose to give evidence in this court. Now he did not have to, he could have remained silent, he was not required to give evidence. You have therefore heard his account of the events denying involvement in the taking of the car and denying that he committed or attempted to commit the armed robberies that he has been charged with. You have had the benefit of seeing him in cross-examination and you have had an opportunity to hear what he has had to say. You will give him whatever credit you think appropriate for choosing that course of giving evidence which he did not have to do. I will remind you more about his evidence and what he actually said tomorrow.
I also now want to refer you to some comments and some ideas and thoughts about assessing the evidence of the various witnesses and this includes, of course, evidence of the accused because part of your role is to make an assessment of the witnesses you have heard and their credibility and reliability. As I have said that is entirely your responsibility.
[13] Summing up, AB 73-74.
Counsel for the appellant referred to R v Ong.[14] In that case the trial Judge said nothing to the jury about the appellant having given evidence at the trial apart from a comment that the jury could take into account the fact that English was not his first language and he may have been under stress in the witness box.
[14] (2001) 80 SASR 537.
The Court of Criminal Appeal held that the failure to give guidance to the jury with respect to the assessment of the accused as a witness amounted to a misdirection. The Court referred to the comments of Doyle CJ in R v Copeland:[15]
In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness. If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason. In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen (No 2) (1991) 180 CLR 531. I cannot think of any better way of maintaining the right balance. It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused. In short, what the judge said here seems to me to be completely appropriate for most cases.
[15] (1997) 194 LSJS 1 at 7.
In my view there was no such danger in the present case. It would have been better if the trial Judge had directed the jury in so many words that they were to assess the evidence of the appellant in the same way as any other witness in the case. However, the direction that the jury could have regard to the appellant’s evidence “as any other witness” was sufficient to avoid any misapprehension the jury might have had about discounting his evidence because he was the accused.
The further directions given to the jury on assessing witnesses, including the appellant, reinforce the comment that regard was to be had to his evidence along with that of the other witnesses.
Ground 5
Ground 5 asserts that the trial Judge erred in failing to adequately put the defence case to the jury.
This argument focuses upon one aspect of the defence case. Counsel for the appellant at the trial addressed the jury on the evidence that a DNA profile which matched that of the appellant had been obtained from the glove found in the Magna. He put to the jury that the offender had been careful not to leave any incriminating material in the car and that he must have realised he was leaving the glove there. Counsel suggested there was a reason for purposely leaving the glove in the car:[16]
You see what I suggest is Mr Copeland has been set up, plain and simple, set up by somebody else, the actual robber, and it’s not him and there’s one very good reason why it’s not him; why would he leave an item that would incriminate him in the car when everything else was gone? It just doesn’t make sense, does it?
Later in his address counsel said:[17]
What does make sense I suggest to you is that someone else, and not Mr Copeland, has put that glove in the car to suggest that whoever wore that glove would be suspected of the offences.
[16] Transcript of Proceedings, R v Copeland (District Court of South Australia, J Ibbotson, 1 February 2010) at 606.
[17] Transcript of Proceedings, R v Copeland (District Court of South Australia, J Ibbotson, 1 February 2010) at 608.
The trial Judge referred to the argument in the summing up:[18]
Mr Ibbotson submitted to you that maybe this was a set-up, that the glove was left in the car to implicate Mr Copeland. I just want to make this comment to you, ladies and gentlemen, about that submission. There is no evidence at all at that anyone else knew that Mr Copeland had used that red glove. It was left, according to Mr Copeland’s evidence, outside a small group of units with the rake. So how, you might ask yourselves, would anyone know that the red glove would implicate Mr Copeland? So you might just consider that in light of the submission made to you by Mr Ibbotson and that particular part of his submission.
[18] Summing up, AB 128.
When the jury retired Mr Ibbotson, counsel for the appellant at the trial, told the trial Judge that he was suggesting in his address that the offender might not have known who had worn the glove, but that he might have wanted to blame someone else, not necessarily the accused. The Judge indicated it would be inappropriate to bring the jury back and instruct them further on this argument.
The matter raised in counsel’s address was no more than an argument on the evidence. It involved speculation as to the offender’s motive for leaving the glove in the car. The argument rested on the assumption that this was done on purpose.
The way in which the point was made in counsel’s address was not free from ambiguity and was capable of being understood as suggesting an attempt to implicate the accused in particular. However, the crux of the argument was that the appellant wanted to implicate another person. It does not appear to affect the argument whether the offender wished to implicate a particular person.
In my view it was unnecessary to recall the jury for further directions on the point made by counsel.
Ground 6
This ground relates to another argument which was put by Mr Ibbotson in his address to the jury. He said:[19]
You recall, however, in March 2008, Mr Copeland’s solicitor indicated to Detective Pratt Mr Copeland was willing to go in a line-up. You will recall Mr Pratt’s evidence that he didn’t go through with the that because he said Mr Copeland’s hair was a lot shorter at that stage than it had been around the time of the robbery, so nothing happened.
But the important point is this, I say: would somebody offer themselves up for a line-up, no matter what their hair, who is guilty of these offences? You see, how would this man not know that he wasn’t seen entering or leaving the various premises, entering or exiting the Magna, that the persons involved in the robbery would be able to identify him? Does a guilty person take that risk? I don’t think so. Do you?
This comment was at the end of counsel’s address and, while the jury were in Court, the trial Judge pointed out to counsel that he had expressed a personal opinion in making the submission. Counsel told the Judge that he had not intended to do so and the matter was left there.
[19] Transcript of Proceedings, R v Copeland (District Court of South Australia, J Ibbotson, 1 February 2010) at 611.
However the trial Judge made the following comment in her summing up:[20]
Before I embark on that there are a couple of general and preliminary comments I want to make: during his address to you Mr Ibbotson made a comment about the line-up that did not happen, that the accused offered to go in, in March 2008 and he said words to the effect that he was critical of the police not conducting the line-up.
You will bear that in mind but he went further than that and made a comment as to “why would a guilty man take that risk”. I just want to give you a direction about that comment that was made to you because in this case there is no evidence before you as to what information Mr Copeland did or did not have about the case against him and what he thought the witnesses might say when that decision was made to volunteer for a line-up.
There is just no evidence one way or the other and so I am sure that Mr Ibbotson at the time thought it was an appropriate comment to make but I am going to direct you to ignore that comment in the circumstances because there is no evidence one way or the other.
Having said that, it is perfectly proper for you to have regard to the absence of a line-up or any line-up procedures, particularly to do with Mr Whiley’s evidence and Mr McLean’s evidence in considering whether or not the case has been satisfactorily proved to you.
[20] Summing up, AB 98-99.
It was argued on appeal that the argument should not have been withdrawn from the jury’s consideration.
In my view counsel was entitled to put this argument and I do not think that the trial Judge should have told the jury to ignore it. However, the issue was not taken up with the appellant in his evidence. His possible motives for volunteering to take part in a line-up and his perceptions, at the time of making his offer, of the evidence against him were not canvassed. This would have placed the jury in the position of speculating on the appellant’s motives and the significance of the offer.
In my view the withdrawal of the issue could not have affected the result of the trial.
Ground 8
The final ground asserts that the convictions are unsafe and unsatisfactory.
The arguments relied upon in support of this ground have been dealt with when considering the previous grounds of appeal. In my view they are without substance.
Furthermore, after reviewing the evidence in the manner directed by the Court in M v The Queen,[21] I have reached the conclusion that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged in counts 1, 3, 4, 5 and 6.
[21] (1994) 181 CLR 487.
Grounds 2 and 7 were abandoned.
I would extend the time to add ground 1B and grant permission to amend the grounds of appeal by including it as a ground.
I would dismiss all grounds of appeal.
DAVID J: I would dismiss the appeal for the reasons given by Duggan J.
43
5
1