R v DRUMMOND - [2012] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRUMMOND
[2012] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nyland and The Honourable Justice Anderson)
24 July 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
Appellant was found guilty by a jury of attempted abduction – case against the accused relied upon evidence of the complainant and circumstantial evidence – there was direct evidence from the complainant that the incident had taken place – with respect to the issue of identity, the prosecution case relied upon circumstantial evidence – whether the verdict was unsafe, unsatisfactory or unreasonable having regard to the evidence and resulted in a miscarriage of justice – whether the trial Judge erred in not directing the jury to disregard the evidence of the forensic scientist on the internal Forensic Science Centre statistics regarding the percentage of reportable findings as against cases assessed – whether defence counsel erred in his decision not to call the wife of the accused and resulted in a miscarriage of justice – whether the trial Judge erred in his summing up to the jury on how they were to use the evidence of the previous good character of the accused.
Held: appeal dismissed – the verdict was not unsafe, unsatisfactory or unreasonable having regard to the evidence – the forensic scientist’s evidence was plainly admissible – the failure of defence counsel to call the wife of the accused to give evidence as to the good character did not result in a miscarriage of justice – the direction to the jury on how they were to use the previous good character of the accused did not result in any miscarriage of justice.
R v Trimboli (1979) 21 SASR 577, discussed.

R v DRUMMOND
[2012] SASCFC 87
Court of Criminal Appeal: Kourakis CJ, Nyland and Anderson JJ

KOURAKIS CJ: About 4.20 pm on 24 November 2010 T, who was then a secondary school student, was walking on the eastern footpath of Prospect Road. As a slow moving white station wagon drove towards her, she noticed the driver looking directly at her. T became worried and walked a little faster along Prospect Road, entering the vehicle’s registration number in her mobile telephone. She heard a car door slam behind her and looked back to see a man walking around the front of a car. She again quickened her pace but had taken only a few more steps when she felt someone grab her arm and say “get in the car”. T tried to walk away but the man maintained his grip and repeatedly told her to get in the car. Even…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DRUMMOND

Details

AGLC: R v Drummond [2012] SASCFC 87
Case: [2012] SASCFC 87
Decision Date: 24 July 2012

CaseChat Overview and Summary

The appellant, R v DRUMMOND, was convicted by a jury of attempted abduction. The appeal concerned whether the jury's verdict was unsafe, unsatisfactory, or unreasonable, and whether a miscarriage of justice had occurred. The prosecution's case relied on the complainant's direct evidence and circumstantial evidence, particularly concerning the issue of identity.

The court was required to determine several legal issues. Firstly, whether the verdict was unsafe or unreasonable given the evidence presented, and if this constituted a miscarriage of justice. Secondly, the court considered whether the trial judge erred by not directing the jury to disregard certain statistics presented by a forensic scientist regarding the success rate of forensic analysis. Thirdly, the appeal questioned whether the conduct of the appellant's defence counsel at trial, specifically the decision not to call the appellant's wife to give evidence on certain matters, resulted in a miscarriage of justice. Finally, the court examined whether the trial judge's directions to the jury on how to consider the appellant's previous good character were erroneous.

The Court of Criminal Appeal dismissed the appeal. It found that the verdict was not unsafe, unsatisfactory, or unreasonable. The evidence of the forensic scientist was deemed plainly admissible, with the court reasoning that while the precise assumption for the statistical analysis was not directly proven, an inference could be drawn that police had reason to believe contact had occurred with the items tested. The court also held that the failure of defence counsel to call the appellant's wife to give evidence on specific matters did not result in a miscarriage of justice, as the relevant facts were already agreed upon or established through other evidence, and calling her might have potentially undermined the defence. Furthermore, the directions given to the jury regarding the appellant's good character were found not to have caused any miscarriage of justice.

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

In my view M’s evidence was admissible. There was no objection to her evidence. Instead the appellant’s counsel saw fit to cross-examine her further on it. Plainly enough, the evidential significance of the results of the study depended on an assumption that a third person had had contact with the items from which sample were taken for DNA testing. That assumption was not proved directly. However, an inference could be drawn that the police officers who submitted the samples that were included in the studies for testing had some reason to believe that there might have been contact. It can be accepted that some, or even many, of the items submitted by Police, DNA might not have been found because there had been no contact. However, as a matter of common human experience there could be very few items collected in the course of a police examination which would not have been subjected to at least some human contact, even if that contact might have been with someone other than the suspect or complainant as the case may be. It is difficult to imagine that many of the substances seized by police for the purposes of a criminal investigation would be in a pristine state untouched by human hands. Accordingly the evidence of M had some evidential significance in supporting her opinion that a DNA profile might not be obtained from an item despite human contact because it left “just too few cells or too few marbles in the bag for our systems to detect it”. M went on to explain that the failure to obtain and locate traces of DNA:Doesn’t mean necessarily that there was no contact. Of course that is absolutely one explanation for that, but it also means that our systems were just unable to detect any cellular material or DNA left behind from that contact.Failure of Appellant’s Trial Counsel to Adduce Exculpatory Evidence The appellant’s counsel at trial, who is not his counsel on appeal, called the appellant’s wife, W, to give character evidence. The appellant now complains that his counsel ought to have asked W questions on a number of topics that were more directly related to his guilt or innocence. From material received by this Court it appears that W could have testified about the appellant’s habit of calling home before arriving from work, and that he had done so on the day of the alleged offence. However, the facts agreed for the purposes of the trial established both the appellant’s usual habit and the fact that he had done so on the day of the alleged offence. W could also have given evidence about the appellant’s clothing. As I earlier observed, the facts that the accused was wearing black jeans and a dark t‑shirt on the day of the offence, and that they were his usual working clothes, were agreed. Nor was there any dispute that the accused worked with thinners. The accused said as much in a Record of Interview which was before the Court. It would not have improved the appellant’s case to have adduced that evidence from W as well. Indeed if W had been called she might have disclosed that the appellant in fact also had a white t-shirt which more closely fitted T’s description. That evidence would have supported the prosecution case and would have undermined the benefit to the appellant of the agreed facts.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.