R v Crawford

Case [2015] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CRAWFORD

[2015] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

14 August 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY

Appeal against conviction.  The appellant was convicted by a jury in the District Court of the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm and theft.  The prosecution case was that the appellant and two co-offenders broke into the residence of the victim, swung at him with a shovel and stole his wallet.  The appellant denied the charges and led alibi evidence that he was with his mother that afternoon.  The prosecution case was largely circumstantial.  A forensic examination of the premises revealed damage consistent with a home invasion and the appellant’s palm print was found at the point of entry.  In his interview with the police, the appellant demonstrated esoteric knowledge of the victim’s premises.  The prosecution also relied on three types of identification evidence.  The first was the victim’s description of the offenders.  Second, there was a claimed Facebook identification, and third, a formal identification procedure using a photographic array.  After identifying the palm print as belonging to the appellant, the police told the victim the name of the appellant and the victim looked up the name on Facebook. The appellant sought to exclude the Facebook and photographic identifications on the basis that they were more prejudicial than probative and would cause unfairness to the appellant. 

Whether the trial Judge should have excluded the evidence.  Whether the Judge failed to take into account the dangers associated with Facebook identifications and the effect any contamination would have on the probative value of the photographic identification procedure evidence. Whether the verdict was unreasonable and could not be supported by the evidence. 

Held per the Court:

The accumulation of the circumstantial evidence was such that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

Held per Gray and Nicholson JJ:

1.       The Judge did not err in admitting either the Facebook or the photographic identification evidence. 

2.       The police made an error which had unfortunate consequences and resulted in some unfairness to the appellant.  However, there was no perceptible risk of miscarriage of justice that could not adequately be dealt with by appropriate directions to the jury.

3.       It was within the Judge’s discretion to leave the issue of the…

Continue reading R v Crawford

Sign in free to access the full text

Details
AGLC
R v Crawford [2015] SASCFC 112
Case
[2015] SASCFC 112
Decision Date

CaseChat Overview and Summary

The appellant, Mr Benjamin Crawford, was convicted by a jury of aggravated serious criminal trespass, aggravated assault causing harm, and theft. The convictions arose from an incident where three offenders entered the victim Mr Earley's home. Mr Crawford appealed his convictions, arguing that the identification evidence used against him was improperly admitted and that the verdict was unreasonable or insupportable having regard to the evidence. The Director of Public Prosecutions contended that the identification evidence was admissible and that any weaknesses were matters of weight for the jury, supported by forensic evidence and the appellant's knowledge of the victim's house.

The central legal issues before the Court of Criminal Appeal were whether the trial judge erred in admitting the identification evidence, specifically evidence derived from Facebook and police photographs, and whether the verdict of guilt was unsafe or unsatisfactory. This involved considering the principles governing the judicial discretion to exclude identification evidence, including the concepts of fairness to the accused and public policy, as well as the adequacy of the trial judge's directions to the jury regarding the weight to be given to such evidence.

The court affirmed that evidence of identification obtained through photographs is legally admissible, subject to a judicial discretion to exclude it if its admission would be unfair to the accused or contrary to public policy. Drawing on established principles, the court noted that this discretion encompasses a general unfairness discretion applicable to any evidence, which is broader than a discretion limited to confessional evidence. While the police conduct in obtaining the identification evidence was arguably unfair, the court found that it did not create a perceptible risk of a miscarriage of justice, particularly in light of the trial judge's extensive directions to the jury. The court concluded that the jury was entitled to accept Mr Earley's identification evidence, despite its acknowledged low value, and to weigh it against the defence evidence, including the appellant's alibi.

Ultimately, the court found that the trial judge did not err in admitting the identification evidence, as it possessed probative value and its weight was a matter for the jury. Considering the totality of the circumstantial evidence, including the palm print evidence and the appellant's knowledge of the victim's house, the court determined that it was open for the jury to be satisfied of the appellant's guilt beyond reasonable doubt. Accordingly, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Counsel for the Director of Public Prosecutions submitted that the identification evidence was properly admitted and that any deficiencies in that evidence were matters of weight to be assessed by the jury. Counsel for the Director pointed to the careful directions given by the Judge when summing up. It was said that it was plain that the jury accepted the evidence of Mr Earley that he did not know the defendant. In this context, there was no innocent explanation for the palm print at the point of entry and that forensic evidence provided strong support for the identification evidence from Mr Earley. Counsel for the Director contended that the conviction was sustainable considering the palm print evidence, the description of the offender provided by Mr Earley, the identification evidence and the defendant’s esoteric knowledge of Mr Earley’s house.Discretion to Exclude Identification Evidence King CJ set out the law as to the exclusion of identification evidence in Deering.[5]His Honour, Olsson and Legoe JJ agreeing, held:[6] The law is clear that evidence of identification obtained by means of inspection of photographs is legally admissible evidence. I refer to Alexander v. The Queen, per Gibbs C.J. at p. 400. There exists a discretion to exclude that evidence, however, where its admission would be unfair to the accused, or where in the interests of wider public policy the court deems it proper to exclude the evidence because of some impropriety in the procedure by which it has been obtained. ...[Footnotes omitted.] [5] R v Deering (1986) 43 SASR 252.[6] R v Deering (1986) 43 SASR 252, 253. The Court of Criminal Appeal considered the bases for exclusion of evidence in Lobban,[7] where Martin J identified three distinct, although overlapping, discretions:-an overall discretion limited to confessional evidence, which does not apply to the present proceedings;-a public policy discretion not limited to confessional evidence, also known as the Bunning v Cross[8] discretion; and-a general unfairness discretion applicable to any evidence.[9][7] R v Lobban (2000) 77 SASR 24.[8] Bunning v Cross (1978) 141 CLR 54.[9] Since preparing these reasons the High Court decision of Police v Dunstall [2015] HCA 26 has been delivered. I agree for the reasons expressed by Nicholson J that R v Lobban (2000) 77 SASR 24 remains the law in this State. Martin J covered the history of the public policy discretion in detail and concluded that:[10]...the discretion [is] enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities.[10] R v Lobban (2000) 77 SASR 24, 34. However, Martin J noted that, while the public policy discretion should necessarily be confined to such circumstances, some circumstances which involve errors of law enforcement, while not meeting the criteria to enliven the public policy discretion, will be encompassed within the ambit of the general unfairness discretion. His Honour explained:[11]… the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of ‘the rights and privileges of the accused’, which rights ‘include procedural rights’ (at 189 and 197). Both discretions look ‘to the risk that an accused may be improperly convicted’ (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle.[11] R v Lobban (2000) 77 SASR 24, 48-9.

Decision

Reasons for decision

GRAY J PEEK J (dissent) NICHOLSON J
It is plain that the value of the identification evidence was relatively low. The Judge noted in his directions that the jury may have “serious reservations about the claimed Facebook identification and the worth of the recognition said to have come from looking at the police photographs”. However, the jury was entitled to accept the evidence of Mr Earley over that of the defendant. The jury was also entitled to doubt the alibi evidence of the defendant’s mother. If the jury believed the evidence of Mr Earley that he had never seen the defendant before, then there was no explanation for the palm print being at the point of entry. If the jury were to consider this forensic evidence in conjunction with the evidence of the defendant’s esoteric knowledge of the premises, there was enough circumstantial evidence to conclude that Mr Earley was likely correct in his identification. On this basis, it was open for the jury to be satisfied beyond reasonable doubt of the defendant’s guilt. Conclusion In my view, the Judge did not err by admitting the Facebook and photographic identification evidence. There was probative value to the evidence and the weight it was to be afforded was a matter for the jury. The conduct of the police, while arguably somewhat unfair to the defendant, created no perceptible risk of a miscarriage of justice once considered in the light of the extensive directions of the Judge. The totality of the circumstantial evidence leads me to conclude that the convictions are sustainable. I would dismiss the appeal. Introduction Mr Benjamin Crawford, the appellant, was convicted by majority verdict of a jury of the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, and theft. He was convicted on the basis that he was one of three offenders who committed the offences against the victim Mr Earley, at his house shortly after 4:00pm, on 5 November 2013 (to be compendiously referred to as the incident). Very soon after the incident, at about 4:35pm on 5 November 2013, Earley gave a statement to a police officer describing the incident in the following way:[19] [19] Earley subsequently signed the typed version of this statement on 17 November 2013.At about 4:00pm on Tuesday the 5th of November 2013, I was in my bedroom which is situated at the front of the house on the eastern side. I was making the bed when I heard noises. It sounded like two (2) males talking right outside the bedroom window. I walked out of the bedroom towards the front door which is directly next to the bedroom. I heard the males try to open the screen but it was locked. The main door was opened. As I approached the screen door I saw the males walking west towards the two (2) roller garage doors and I then heard them open the garage door, which was unlocked. I double checked the side and back doors of the house to make sure they were locked. I could hear the males moving around in the garage. A few seconds later I heard someone kicking in the side door which is on the western side of the house. By this stage I was standing in the kitchen. Three (3) males broke through the side door and entered the house.The first male I would describe as: Caucasian, about thirty (30) years old, slim build, about seventy (70) kilograms, six (6) feet tall, blonde shoulder length scraggly hair, slim face, clean shaven. I cannot remember if he had a goatee or not. He was wearing a light coloured yellow/grey or white t-shirt. He was holding a forty (40) centimetre long white baton which was possibly wooden.The second male I would describe as: Caucasian, thirty (30) years old, stocky build, about eighty (80) kilograms, about five (5) feet eight (8) inches tall, tanned skin, dark coloured baseball cap, sunglasses and dark clothing. He was carrying a one and half (1.5) metre long garden shovel which I recognized as mine from my shed as it is old and rusty.The third male I would describe as: Caucasian, thirty (30) years old, slim build, about seventy five (75) kilograms, about six (6) feet six (6) inches tall, tanned skin wearing a dark baseball cap and dark sunglasses. He was wearing dark clothing and was not carrying anything.The first male with the baton rushed at me with the baton held high over his head as if he was about to hit me. I heard one of the males yell: He said, “Where’s the money at?!”. The first male hesitated and the second male with the shovel started towards me, as I heard the third male yell: He said, “Hit him!”.The second male swung the shovel down at my upper body. He was only about one (1) metre away from me. I put my hands up to block the shovel. I then grabbed the head of the shovel with both hands. I tried to wrestle the shovel off the male and push them out of the kitchen at the same time.As I was struggling with them I noticed the first male with the blonde hair was carrying my wallet which I had left on the kitchen counter. My wallet was a black and red “Ripcurl” wallet made from pleather. It contained all my cards and about one hundred dollars ($100) in notes.I managed to push the males down the hall and past the laundry. I pushed the males away and ran through the laundry and out the side door. I jumped the front fence next to the garage and ran to my neighbour’s house to phone the Police. I knocked on the door of 9 Phillip Avenue and hid behind a blue vehicle in the front yard and called the Police on my mobile phone. I stayed behind the vehicle for about three (3) to four (4) minutes. I was still on the phone to “000” when I saw the three (3) males run down Phillip Avenue in an easterly direction towards Reginald Road.… I have never seen the three (3) males before. I would recognize the three (3) males if I saw them again.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, NICHOLSON J

Full text does not contain this section.