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 though she was terrified, T turned around and faced the man. She pushed him away and hit the man around the collar bone area and face. T’s assailant stumbled backwards allowing T to break free and move away in a northerly direction along Prospect Road.
T ran until she saw her assailant get back into his car.
A little further along Prospect Road, a white station wagon with the same registration number again pulled up alongside her. She walked further north along Prospect Road, leaving the car behind her. Within a short time the white station wagon again pulled up along side her. The driver must have been manoeuvring the station wagon alongside her by performing u-turns across Prospect Road. T eventually turned into the street in which she resided and did not see the man again.
Over the course of the incident T noticed that the driver’s seat of the white station wagon was much reclined. T also observed that her assailant was wearing blue track pants and a dim white top, which was dirty and stained. T also testified that her assailant had yellow stained teeth and a “creepy” smile.
T explained in giving her evidence that she made a note of the number because of the eye contact made by the driver. She explained that it didn’t seem normal, and nor did the smile and how slow he was driving.
The appellant’s counsel did not put to T directly that she had not been the victim of an attempted abduction. The accused’s trial counsel asked: “obviously you haven’t made all this up; someone did grab you on Prospect Road that day, didn’t they?” T replied yes. The failure to put to T in a direct way that there was no incident at all denied her the opportunity to give a full answer rejecting the suggestion, which then could be assessed by the jury.
There was no dispute at trial that the registration number recorded by T was the registration number of the appellant’s white station wagon. The appellant also accepted that about the time of T’s attempted abduction he was driving his white station wagon along Prospect Road on the way home from work. However, the appellant testified that he drove his car only in a northerly direction along Prospect Road for that purpose.
Police attended at the appellant’s home about 5.45 pm on the same day. They found his white station wagon in the yard of his home with both the driver and the front passenger seats reclined.
T had also described her attacker as having brown wavy collar length hair and brown eyes. She described him as having a medium build. It was accepted that that general description fitted the appellant.
The jury had the benefit of hearing T’s oral testimony. They could not have returned a verdict of guilty unless they were satisfied beyond reasonable doubt that the incident she described occurred. Having regard to the failure to challenge T’s account of her attempted abduction at trial and having regard to the jury’s advantage in hearing T’s testimony, this Court can only proceed on the basis that T was attacked in the way she described. Once that proposition is accepted the only real question is whether T’s identification of her assailant, by reference to the registration number and description of the vehicle, might have been mistaken. It is impossible to imagine any way in which T could have substituted what could only have been a fleeting image of one of a number of cars travelling at an ordinary speed in a northerly direction along Prospect Road for the car of the assailant, which drove slowly up to her in a southerly direction. The additional circumstances of the general similarity between T’s description of the assailant and the reclined position of the appellant’s car seats leave no room for doubt. On the basis of that very strongly probative circumstantial case, the identity of the appellant as T’s attacker is clearly proved beyond reasonable doubt. The verdict of guilty can not therefore be described as unreasonable, and there could not have been any substantial miscarriage of justice.
An examination of the appellant’s particular complaints in the grounds of appeal to which I now turn gives no reason to depart from that conclusion.
Observations Inconsistent with the Appellant’s Appearance
The appellant relies on some aspects of T’s description of her assailant which are inconsistent with his appearance at the relevant time. The appellant contends that the inconsistencies are compounded by T’s failure to identify the appellant in a subsequent photographic array.
T described her attacker has having yellow teeth. The appellant has only two natural teeth; his two front bottom teeth. Those teeth are stained yellow. However, T testified that she saw more than just two bottom teeth. It was put to T that her assailant “definitely had a full mouthful of teeth”. T replied “I don’t know I don’t remember”. It was then put to her that she could see a lot of teeth and more than just two. She agreed. T was shown dentures and she agreed that her attacker did not have teeth like that.
I would not attach much significance to this apparent inconsistency. T’s description of the assailant having yellow stained teeth and a creepy smile is consistent with the appearance one would expect of a man who had only two yellow stained natural teeth. Her eventual acceptance of the proposition that there were more than two teeth can be explained by the likely effects of the incident on her capacity to remember accurately all of the details of her assailant, and by the effects of anxiety in the witness box.
The failure of the victim to notice the substantial tattoo on the appellant’s arm is also insignificant for similar reasons.
There was a second inconsistency between T’s description of her assailant and the appellant. T’s description of the clothing worn by her assailant did not match the clothing worn by the appellant on that day. It was an agreed fact that the accused was wearing jeans whilst he was driving home from work and not blue tracksuit pants of the type described by T. T testified that her assailant was wearing a brown-beige t-shirt. It was agreed that the appellant was wearing a dark t-shirt with the words “Dulux Protective Coatings” written on it. There was also evidence from which it could be inferred that the appellant’s clothing would have exuded a strong smell of solvents used in his workplace. T testified that there was no chemical smell about her assailant.
I accept that the inconsistencies between the appellant’s clothing and T’s description of her assailant’s clothing are significant. It is one thing not to notice much of the detail of the clothing worn by the assailant, it is quite another to give a description of clothing which differs so markedly from the clothing that the prosecution agreed that the appellant was wearing. The fact that there was evidence that there was clothing at the appellant’s home which more closely fitted the description given by T must be put to one side because of the agreed fact as to the clothes worn by the appellant. Nonetheless, the inconsistency between T’s description of the assailant’s clothing and the appellant’s clothing does little to undermine the overwhelming probative force of the evidence that T’s assailant was driving a white station wagon like the one that the appellant was driving, with the same registration number, and with front seats similarly reclined.
The appellant also relies on the absence of any significant injury to T. However, for the reasons given in paragraph [10] above it is not open to this Court to doubt T’s account of the attempted kidnapping.
The appellant did in fact have injuries that were generally consistent with injuries which might have been inflicted by T as she fended off her attacker. Those injuries, however, are also consistent with the nature of his work.
The failure to find any of the appellant’s DNA on T’s clothing is insignificant. The only DNA found was matched to the DNA profile of a friend. The DNA of the assailant was not found. A forensic scientist gave evidence as to why contact DNA cannot always be found. The failure to find anything in the appellant’s car that could have been used to restrain T is also of little moment. Counsel for the accused also relied on the evidence that on the day of the offence the accused followed his usual practice of telephoning his family just before he arrived home so that they could open the roller door and keep the family’s pet dog inside. There is no reason why the appellant would not have followed his usual habit in that respect, whether he had attempted to abduct T or not.
Ground 2 Evidence of Recoverability of Contact DNA
The forensic scientist gave evidence of the attempts to discover traces of DNA on the clothing of the appellant and T’s clothing. As I earlier observed, no trace was found of the appellant’s DNA on T’s clothing. Nor was any trace of T’s DNA found on the appellant’s clothing. After describing the nature of DNA testing, the following evidence was adduced from M:
QOn the television we see examples of person touching a chair and a lab immediately finds a result of someone having touched it. How does that compare to real life?
ACertainly it can happen where a DNA profile is obtained by someone after contact has occurred but certainly not always the case and in fact for the contact DNA swabs that we receive at Forensic Science South Australia often you know – studies have shown in our laboratory that 10 per cent of these swabs or samples actually only provide us with any useful information, so it’s quite common for us not to be able to obtain DNA or obtain useful information from a DNA profile with respect to contact DNA samples.
The appellant’s counsel cross-examined M on that evidence. M explained that in those 10 per cent of cases insufficient DNA was extracted for the purposes of analysis and placement into the Forensic Science Centre’s data.
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.
W could also have given evidence that the appellant often returned home with cuts and abrasions as a result of his work. However, the appellant gave that evidence and it was corroborated by the written statement of a fellow worker which was read into evidence. W could also have testified that the appellant had only two bottom teeth and that he had dentures which he did not tend to wear. However, the appellant also gave that evidence. In addition the jury observed him in the witness box. His dentures were tendered.
The appellant also complains that his trial counsel did not lead evidence from his employer, D. D was called by the prosecution. However, the prosecution did not lead from D any evidence about the clothing worn by the appellant on the day of the offence. The appellant’s trial counsel did not elicit the evidence in cross-examination. However, I repeat that that evidence was an admitted fact. From material before this Court it also appeared that D could also have given evidence about the appellant’s tattooed forearm. However, the tattoo was evident in photographs tendered by the accused. D could also have confirmed that the appellant had false teeth but as I observed earlier there was an abundance of evidence to that effect.
Direction on Good Character
The trial Judge directed the jury on the question of character evidence as follows:
I want to say something about the character evidence to which reference has been made.
Some evidence was led as to the accused’s character from his employer [D], briefly from the accused’s wife and you also have the antecedent report which confirms that he has no criminal conviction.
You are entitled to bear the evidence of the previous good character of the accused in mind in assessing the credibility or the explanation given by him and his credibility as a witness. You are entitled to bear that evidence in mind as a factor affecting the likelihood of the accused committing the offence of attempted kidnapping. That is, in deciding whether you are satisfied beyond reasonable doubt of the guilt of the accused, his good character is a factor you can bear in mind.[1]
[1] AB, 69.
In R v Trimboli Chief Justice King said:
I have read the judgment of White J. and I agree with his conclusions and reasons. I wish to add a few observations on the question of evidence of good character.
The long standing practice of this Court, so far as my experience goes, has been to direct juries along the lines of Attwood v. The Queen. Often reference is made to the effect of the evidence of good character upon the credibility of the accused as a witness or upon the credibility of his explanations of the incriminating evidence. In most cases disproof of guilt and the credibility of the denial of guilt or innocent explanation are two facets of the same thing. Occasionally no direction is given as to the use to be made of the evidence of good character. Like Sholl J. in Reg. v. Schmahl, I think that juries left to their own devices and common sense would be likely in most cases to use the evidence in the proper way. Nevertheless, I agree that it is desirable in all cases that an appropriate direction be given, especially where the judge discusses the significance to be attached to other pieces of evidence. In many cases it is essential, and in such cases failure to give it will result in a mistrial.
I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
1.It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
In the present case, the learned Judge was entitled, if he saw fit, to tell the jury that persons who have previously borne a good character do commit crimes. He was further entitled, if he saw the matter in that way, to suggest to the jury for their consideration that the accused’s previous good character might be of less significance on a charge relating to Indian hemp, in view of the differences of opinion in the community as to the morality of producing and using the drug, than it would be in relation to a crime which attracts universal and unequivocal moral condemnation. The combined effect, however, of the remarks which his Honour made, and his failure to direct the jury as to how the evidence should be used, could well have led the jury to attach little or no importance to the evidence of character, in a case in which, on my view of it, the accused’s previous good character was of considerable importance.[2]
[2] R v Trimboli (1979) 21 SASR 577, 577-78 per King CJ.

There is no rule of law that a direction as to the use of character evidence must be given. As King CJ observed, a jury will naturally understand the significance of character evidence. In my view, the direction of the Judge adequately brought the evidence to the attention of the jury and explained its possible use, both on the question of the credibility of the appellant’s evidence and of his statement to the police, and on the question of the likelihood of his guilt. The use of the expression “you are entitled” was no more than a shorthand way of conveying to the jury that the weight that they gave the evidence was a matter for them. It would no doubt have been better to direct the jury more strictly in accordance with the suggested directions of King CJ. However, in the circumstances of this case the departure has not resulted in any miscarriage of justice.
I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.