R v Edwards
[2014] SADC 174
•24 October 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDWARDS
Criminal Trial by Judge Alone
[2014] SADC 174
Reasons for the Verdicts of His Honour Judge Muscat
24 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - WOUNDING OR SHOOTING OFFENCES - SHOOTING
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
The defendant was charged with three counts of endangering the lives of the occupants of a house by firing shots into the house in a drive-by shooting. The case against the defendant was purely circumstantial in nature and strictly confined by the prosecution to the defendant firing the shots as principal in the first degree. The prosecution did not seek to establish responsibility on the basis of joint enterprise or aiding and abetting.
Held: Circumstantial evidence insufficient to prove the defendant personally fired the shots at the house.
Verdicts: Not guilty of all counts charged on the Information.
Criminal Law Consolidation Act 1935 ss 5(1), 5AA(1), 29(1); Road Traffic Act 1961 ss 38, 164A; Summary Offences Act 1953 ss 74AB, 79A; Evidence Act 1921 ss 34, 34P, referred to.
R v Franco (2003) 139 A Crim R 228; R v Cluse [2014] SASCFC 97; R v Hooper (1995) 64 SASR 480; R v O [1997] S6213; Shepherd v R (1990) 170 CLR 573; R v Maes [1975] VR 541; R v Drummond [2012] SASCFC 87; Plomp v R (1963) 110 CLR 234; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; Subramaniam v Public Prosecutor [1956] 1 WLR 965, applied.
R v Mohammadi, Daye, Mohammadi and Nezhad [2014] SADC 95, distinguished.
R v Bedi (1993) 61 SASR 269; R v Soloman (1979) 1 A Crim R 247; King v R (1986) 161 CLR 423; R v GAS (1997) 98 A Crim R 80; Barca v R (1975) 133 CLR 82; Walton v R (1989) 166 CLR 283; R v Benz (1989) 168 CLR 111; Pollitt v R (1992) 174 CLR 558; Kamleh v R (2005) 213 ALR 97; Doney v R (1990) 171 CLR 207; Peacock v R (1911) 13 CLR 619; Knight v R (1992) 175 CLR 495; Thomas v R (1960) 102 CLR 584; R v Taouk (2005) 154 A Crim R 69; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618; R v Van Beelan (1973) 4 SASR 353; Hansard, Legislative Council 8 June 2006 at 372; Statutes Amendment (Road Transport Compliance and Enforcement) Bill 2006, considered.
R v EDWARDS
[2014] SADC 174Introduction
Darryn Shane Edwards (‘the defendant’) is charged on Information, dated 4 March 2013, with three counts of Endangering Life in its aggravated form.
First Count
Statement of Offence
Aggravated Endangering Life (Section 29(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Darryn Shane Edwards on the 29th day of May 2012 at Blair Athol, without lawful excuse did an act namely shot a firearm at an occupied house, knowing the act was likely to endanger the life of Ebony Rose Morgan and intending to endanger her life or being recklessly indifferent as to whether her life was endangered.
It is further alleged that Darryn Shane Edwards used an offensive weapon, namely a firearm, to commit or when committing the offence.
Second Count
Statement of Offence
Aggravated Endangering Life (Ibid).
Particulars of Offence
Darryn Shane Edwards on the 29th day of May 2012 at Blair Athol, without lawful excuse did an act namely shot a firearm at an occupied house, knowing the act was likely to endanger the life of Acacia Morgan-Bell and intending to endanger her life or being recklessly indifferent as to whether her life was endangered.
It is further alleged that Darryn Shane Edwards used an offensive weapon, namely a firearm, to commit or when committing the offence.
Third Count
Statement of Offence
Aggravated Endangering Life (Ibid).
Darryn Shane Edwards on the 29th day of May 2012 at Blair Athol, without lawful excuse did an act namely shot a firearm at an occupied house, knowing the act was likely to endanger the life of Robyn Morgan and intending to endanger her life or being recklessly indifferent as to whether her life was endangered.
It is further alleged that Darryn Shane Edwards used an offensive weapon, namely a firearm, to commit or when committing the offence.
The defendant pleaded not guilty to all counts and elected to be tried by judge alone.
He is presumed innocent of all counts unless and until the prosecution has proved each count against him beyond reasonable doubt. The defendant does not have to prove anything in a criminal trial.
The offence of Endangering Life is contained in section 29(1) of the Criminal Law Consolidation Act 1935 (‘the Act’) and reads as follows:
29 (1)Where a person, without lawful excuse, does an act or makes an omission –
(a)knowing that the act or omission is likely to endanger the life of another; and
(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence – imprisonment for 15 years.
(b) for an aggravated offence – imprisonment for 18 years.
Section 5(1) of the Act provides:
aggravated offence – where a provision differentiates between the penalty for an aggravated offence and the penalty for the basic offence the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA)
offensive weapon means -
(a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including –
(i)a firearm ...
Section 5AA (1) of the Act states:
... an aggravated offence is an offence committed in 1 or more of the following circumstances:
…
(b) the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence.
Elements of the offence
The offence of Aggravated Endangering Life is therefore comprised of six elements, each of which the prosecution must prove in order to establish the offence. Those essential elements are as follows:
First, one must consider what constitutes an act likely to endanger the life of another. The act must be likely to ‘imperil the life of another or expose that other to risk of death’.[1] That risk must be a real risk not merely a fanciful one. The act in question need not in fact cause any actual injury and it need not be proved that the life of the victim was in fact endangered by the act in question. It is sufficient that the prosecution prove that the act had the likelihood of endangering life.[2]
[1] R v O [1997] S6213 per Bleby J.
[2] R v Bedi (1993) 61 SASR 269 at 274 per Duggan J; R v O Ibid.
Secondly, the act must be itself an act which is likely to endanger the life of another. This is to be inferred from the requirement of knowledge contained in the section.
Thirdly, it must be proved that the defendant consciously and deliberately performed the act in question.
Fourthly, the defendant knew that the act was likely to endanger the life of another.
Fifthly, the defendant either intended to endanger the life of another or was recklessly indifferent as to whether the life of another was endangered. Reckless indifference is an alternative to intention and means that the defendant must have preformed the act knowing that it was likely to endanger the life of another, not intending that it should endanger the life of another, but not caring whether it would or would not endanger the life of another.
Sixthly, the act must be performed without lawful excuse.
Finally, for such an offence to be an aggravated offence the defendant must have used an offensive weapon; in this case, a firearm has been alleged in order to commit, or when committing, the offence.
Trial issue and basis of criminal responsibility
This case involves what has been commonly described as a ‘drive by shooting’. That is, a number of shots were fired at and into a house that was occupied at the time.
After the prosecution opened and some evidence was called, I specifically raised with the prosecutor whether the prosecution was relying upon the principle of joint enterprise to prove the defendant’s guilt.[3] The prosecutor responded that his case was ‘that the accused was involved in the shooting … whether he was a passenger or the driver [he] was the one that held the gun and fired’.[4]
[3] Transcript 101 line 24 - 105 line 4.
[4] Transcript 102 lines 1-15.
Two days after this exchange the prosecutor informed me that: “it is not our case that some unknown person is responsible for firing the shots and that Mr Edwards was part of a joint enterprise or aided and abetted a shooter. The prosecution case rises or falls on the issue whether your Honour can be satisfied that Mr Edwards was the shooter’.[5] There can be no more clarity than this as the basis of the prosecution case.
[5] Transcript 230 lines 29-34.
The prosecution has presented its case on the basis that the defendant alone was the person who fired the shots at the house.[6] It has not suggested that no one else was involved, such as another person driving the defendant’s car.[7] The prosecution case, however, is that the defendant is solely responsible as the principal in the first degree and not responsible on some form of accessorial liability.[8]
[6] Ibid.
[7] Prosecution closing address, Transcript 539; 563-564.
[8] Prosecution closing address, Transcript 563.
Accordingly, on the way in which the prosecution has presented its case, the defendant would not be guilty as an aider or abettor, nor as having counselled or procured the commission of the offences.
The critical issue, therefore, that arises for determination in this case is whether the prosecution has established that the defendant was the person who fired the shots at the house. If there is a reasonable possibility that he did not do so, then given the way in which the case has been presented by the prosecution, the defendant must be found not guilty. In this way, it can clearly be seen that the Director of Public Prosecutions has ‘nailed his colours to the mast’.
In R v Franco (2003) 139 A Crim R 228, Duggan J (with whom Debelle and Lander JJ agreed) dealt with a complaint by a convicted person that the trial judge had directed the jury on an alternative path by which a conviction could be found on a basis not relied upon by the prosecution and without warning to the parties. The conviction was overturned as it resulted in unfairness to the defendant at trial, such that it was a possible cause of a miscarriage of justice.
Whilst that case involved a trial by jury, the law remains the same. A fair trial may be compromised where to proceed to a conviction on a basis other than that relied upon by the prosecution results in a defendant being placed at a tactical disadvantage.[9] In my view the defendant, through his counsel, clearly proceeded to conduct his defence based on the manner in which the prosecution sought to prove his guilt, namely as the person who fired the shots. Counsel would have made forensic decisions, some difficult ones, in the face of the prosecution’s presentation of its case against the defendant, as the shooter, and not on the basis of complicity.
[9] See R v Soloman (1979) 1 A Crim R 247; King v R (1986) 161 CLR 423; R v GAS (1997) 98 A Crim R 80 and Carr v R (2000) 117 A Crim R 272, all cited by Duggan J in R v Franco (2003) 139 A Crim R 228.
Given the clear and unambiguous way in which the prosecution has invited me to proceed to convict the defendant and given that is how the case was presented, defended and closing arguments were addressed, I take the view that I will only convict the defendant if I am satisfied of his guilt on the sole basis proffered by the prosecution, namely that he is guilty as a principal in the first degree.
The defendant’s case is that the circumstantial evidence cannot prove that he or his car were involved in the shooting or, if his car has been shown to have been used, the evidence could never establish that he was in the car or, if he was, that he alone was responsible for firing the shots, as the prosecution has alleged.
If, upon a consideration of all of the evidence, I am satisfied that the defendant’s car was used in connection with the shooting and that the defendant was driving the car at the time but that someone else inside his car fired the shots at the house, then he must be found not guilty. This was certainly a narrow basis upon which to have presented its case against the defendant but that has been the clear choice made by the Director of Public Prosecutions.[10]
[10] See Transcript at 230 and prosecution closing address at 563-564.
Whilst the Information charges three counts, each of which must be considered separately, it is not in contention that one person committed all three offences charged.
The case presented by the prosecution to establish the identity of the defendant as the offender is based on circumstantial evidence. Accordingly, the defendant’s guilt must be the only rational inference which can be drawn from the totality of the circumstantial evidence.[11] I will return later in these reasons to discuss my approach to the circumstantial evidence presented against the defendant.
[11] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82.
The defendant did not give or call any evidence in the case. I have not drawn any adverse conclusion against him for not doing so. Nor is the prosecution case strengthened as a result. I must carefully analyse the circumstantial evidence presented by the prosecution to determine whether or not the charges against the defendant have been proved beyond reasonable doubt. If the evidence does not establish the charges or is susceptible to a reasonable explanation other than the defendant’s guilt, then he must be found not guilty.
The occupants inside the house at the time of the shooting
The house that was shot at was situated at 6 Forrest Street, Blair Athol. A floor plan of the house was tendered in evidence.[12] There are three rooms at the front of the house which face onto Forrest Street; two are bedrooms and the other is the lounge room. Another bedroom is at the back of the house, as is the kitchen. The kitchen window faces the western side or driveway side of the house.
[12] Exhibit P2.
I attended a view of the property and inspected the interior of the house which revealed that each of the rooms were very small in size. I was invited to look through the kitchen window and observe the view from that position to the front driveway and Forrest Street. The view to the front of the house is obviously limited, although I was able to clearly see the street at the width of the driveway. A neighbouring colorbond fence obscures anything of Forrest Street beyond the fence line. In addition, at the time of the shooting, there existed a large wattle tree on the neighbouring boundary which would only have obscured the view of the street further.
Street lighting existed to the east of the house in front of 8 Forrest Street and further down the street and on the opposite side in front of 3 Forrest Street.
The evidence establishes that the house was shot at shortly before 10 pm on 29 May 2012.
The house was occupied at the time by Robyn Morgan and four of her five children namely Aaron, Jace, Jye and Ebony Morgan-Chan, together with Ebony’s child, Acacia, who was aged seven months at the time.
At the time of the shooting all of the occupants were inside the house.
In what has been marked as bedroom one on the plan, being one of the bedrooms facing onto Forrest Street, were Ebony Morgan-Chan and her daughter Acacia.
No one was inside bedroom three, which is also at the front of the house next to bedroom one, on the right as one looks at the house from Forrest Street, when the house was shot at. That room was usually occupied by Aaron Morgan-Chan but he and his brothers Jace and Jye were all in bedroom two, situated to the rear of the house, watching a movie on television, at the time of the shooting.
Inside the lounge room, which is at the front right side of the house as one looks at it from Forrest Street, was their mother, Robyn. She was kneeling down in front of the television set painting a picture at the time the shots were fired.
All of the adult occupants gave evidence of the night of the shooting.
The shooting would undoubtedly have been a very frightening experience for the occupants, even if the incident was over very quickly.
The shooting
Ebony Morgan-Chan
Ms Morgan-Chan gave evidence that immediately before the shooting she was inside bedroom one with her daughter, Acacia, who she had just placed on the mattresses on the floor so she could go to sleep. She said she was on her mobile telephone speaking with a friend, Jasmine Bell, and was walking towards the bedroom door when she saw things fly everywhere in the room. At first she thought that the light bulb had blown, until she looked around, noticed something fly past her and then realised that shots were being fired into her bedroom. Whilst in her bedroom she heard the loud sound of a car engine which sounded like a V8 engine, ‘very rumbly and loud’.[13] She only heard the idle of the engine and did not hear the car drive off, nor screech any tyres.
[13] Transcript 88 line 22.
She thought it might have taken her 10 or 15 seconds to crawl down to Acacia, work out what was going on and crawl out of her bedroom with Acacia. She hung up on Jasmine and crawled along the floor where she took hold of her daughter, Acacia, before crawling out of the bedroom. She was holding Acacia in one arm and had the telephone in her other hand.
Once she made her way into the hallway she heard other shots coming from the front of the house. She remembered saying to her brothers: ‘We’re getting shot at’.[14]
[14] Transcript 174 line 32.
When she realised the house was being shot at, she expected or thought that Ashleigh Pepe or the defendant (Ashleigh Pepe’s partner) were involved.
She then made her way into the kitchen. At some point she had dialled 000 and was speaking to the police. She stated that she turned the lights to the kitchen off as she was going into the kitchen.
While in the kitchen she looked out of the kitchen window and saw the back of a car drive off with its lights off.
She described what she could see of the back of the car as a shiny, orange/ gold car, which had a spoiler.
She said that even though the street lights were on, it was fairly dark out on the street and there was no lighting directly on the car.
I attended a view of Forrest Street and observed the position of the street lighting in relation to 6 Forrest Street as being on the north east side of the property, that is, at the other end of the house from the driveway.
Ms Morgan-Chan said that she only had the car in view for two seconds or a second. She accepted in cross-examination that she only had a ‘very quick look at the car. It could have been less than a second’.[15] Nevertheless, she said she recognised the car as the same one that the defendant owned.
[15] Transcript 187, 199.
She was unable to see the driver or how many persons were in the car as she only observed the rear end of the car as it drove past her driveway and out of sight. She believed the car was either a VT or VX Commodore as the two models are very similar with slight differences to the front lights.
Ms Morgan-Chan was asked to view Exhibit P6, which contained a series of photographs of the defendant’s vehicle. She stated that the spoiler on the defendant’s vehicle looked very much like the spoiler on the car that drove past her driveway following the shooting.
As she recalled matters, her brothers stayed in the back bedroom until the car drove off. Her mother was in the lounge room and made her way into the hall way. Later her mother entered the kitchen with her.
Whilst there were multiple shots fired at the house, Ms Morgan-Chan thought that she still heard shots when she was in the kitchen. However, she accepted in cross-examination that she told the police on the night of the shooting that all the shots had been fired at the house before she entered the kitchen.
There were a number of things that she was now uncertain about when giving her evidence, such as:
·whether it was a V8 or simply a loud sounding car, where she was in the house when she made the 000 call to the police;
·whether or not she was still on the telephone to the police while looking out of the kitchen window;
·whether the shots were fired in quick succession;
·whether her brother Aaron told her to call the police;
·whether she said anything to her mother when she first noticed her during the shooting;
·where her mother went immediately after sighting her;
·whether she still had her daughter in her arm or had placed her down inside the kitchen and;
·whether she or her mother turned the light off in the dining area or exactly what her family members were doing at the time.
She conceded that things happened very quickly and that she was panicking. She was naturally scared and her ‘adrenalin had kicked in’. She said her focus, after leaving the bedroom, was to make her way through the house in order to see if she could see the car.
Ms Morgan-Chan was closely and extensively cross-examined. She acknowledged that she was feeling under pressure during her evidence because a lot of what happened on the night was a blur as everything happened so quickly.
There was one matter which she was steadfast about and that is her response to the statement attributed to her on the night of the shooting that: ‘I looked out the kitchen window and could see the back of a gold/orange VT or VZ Commodore’.
She strongly denied that she mentioned a VZ Commodore as attributed to her. Her recollection was that she never mentioned a VZ Commodore at any time, but stated that it was either a VT or VX Commodore.
She accepted that she told the police officer on the night that: ‘Darryn drives an orange VX Commodore and lives in Elizabeth with Ashleigh’. She described it as such because she said she knew that Darryn drove a VX Commodore.
It is agreed by the prosecution that at 10.47 pm on 29 May 2012 Constable Melissa Smith obtained a handwritten statement from Ebony Morgan-Chan in which she said ‘I could see the back of a gold/orange VT or VZ Commodore’.[16]
[16] Transcript 535 lines 8-13.
The prosecution is obviously permitted to concede or agree facts in favour of a defendant and against its interests.[17]
[17] R v Maes [1975] VR 541.
In my view, where such a concession or agreement is made by the prosecution it does not follow that a trier of fact is bound by that agreement or concession and so has to accept that fact as proved beyond reasonable doubt,[18] particularly so where there is contrary evidence on the topic. If such a situation arises, as in this case, it falls to the trier of fact to make a determination, much as it would when a previous inconsistent statement is proved against a witness and which that witness does not accept was made. In such a situation, any adverse finding against that witness can only ever be used to affect the credibility or reliability of the witness.
[18] Cf s 34 Evidence Act 1921 which specifically deals with facts alleged or sought to be proved against a defendant where such admission by a defendant shall be sufficient proof of the fact without other evidence.
Ms Morgan-Chan explained the circumstances surrounding the giving of her statement to Constable Smith on the night as being ‘in the back of the police car, with [my] young daughter screaming the whole time while [I] was trying to tell [my] story’.[19] Her clear recollection was that she told the police officer that it was a VT or a VX Commodore and not a VZ Commodore.
[19] Transcript 193 lines 27-29; 197 lines 21-25.
She accepted that she initialled the police officers notes and later signed a typed version of that same statement on 20 July 2012. She stated that the first time she noticed this error in her police statement was when she was being proofed by the prosecutor who was to conduct the trial when previously listed in this court.[20]
[20] Transcript 194 line 30 - 195 line 14.
Much has been made of this inconsistency as reflecting adversely on the credibility and reliability of Ms Morgan-Chan’s evidence. I was very impressed with Ms Morgan-Chan as a witness. In my view she was attempting, at all times, to recount, as accurately as possible, what unfolded that night in what must have been a terrifying experience for her.
Notwithstanding the discrepancy between her description of the car and that which Constable Smith recorded in her notebook, I am satisfied that she has correctly identified the vehicle as that of the defendant.
Even if I accept the inconsistency, it does little to undermine the probative force of the circumstantial evidence that the defendant’s car was the one that was seen driving past the house along Forrest Street at the time of the shooting.[21]
[21] R v Drummond [2012] SASCFC 87 at [16]-[17] per Kourakis CJ.
Under cross-examination Ms Morgan-Chan maintained that she ‘believed what I saw that night and it very much looked like Darryn Edwards’ car. I cannot say 100 per cent from what I saw that it was definitely Darryn Edwards’ Commodore. But I can say it was definitely not a VZ commodore. Whilst it was dark, I’m certain, fairly certain of what I saw in terms of the colour, it being orangey/gold’.[22]
[22] Transcript 199, 210, 211.
According to the agreed fact, Ms Morgan-Chan described the car she observed drive past the driveway of her house as being either a VT or VZ Commodore. I am satisfied beyond reasonable doubt that the defendant’s car is a VT Commodore SS.[23] Therefore, her description of the car she saw includes the possibility of it being a VT Commodore.
[23] See Exhibits P6 and P21.
That she was positive the defendant drove a VX Commodore does not assist the defendant’s submission that Ms Morgan-Chan’s evidence is unreliable because plainly, the defendant’s car is a VT Commodore and not a VX. As such, what it has been agreed Ms Morgan-Chan said to Constable Smith on the night accords with her evidence that it was a car that she believed was the defendant’s.
I found Ms Morgan-Chan to be a truthful witness and reliable on the important issues. I did not discern anything in her evidence which would cause me to doubt that she was telling me the truth. When matters were drawn to her attention she readily conceded differences in her account and the statement she provided to the police on the night of the shooting, except for the matter involving the description of the model commodore she said that she observed.
It was submitted by the defendant that in light of the agreement of what Ms Morgan-Chan said to Constable Smith, that I was bound to accept that over Ms Morgan-Chan’s sworn evidence. I reject that submission. I cannot see why I would be bound to make such a finding when the agreement was limited to that what Constable Smith would have said in her evidence if called.[24]
[24] Transcript 535 lines 14-36.
I accept Ms Morgan-Chan’s evidence that she told Constable Smith the Commodore was either a VT or VX and not a VZ, as ascribed to her by the police officer. In my view, it would be easy for Constable Smith to make such a mistake, especially in the atmosphere in which the handwritten statement was being taken. I can also readily understand how Ms Morgan-Chan would not have picked up the mistaken description, either on the night, or subsequently when signing the typed version of the handwritten statement. When the matter was about to proceed to trial on a previous occasion and she was expecting to give evidence, her mind was focused on recollecting the events of the night. This explains, in my view, why at that time she realised the error in the statements and brought that to the attention of the prosecutor.
If, as submitted, Ms Morgan-Chan was out to implicate the defendant by lying, she could easily have told the police officer that she definitely recognised the car as the defendant’s. After all, she stated that from the moment she realised her house was being shot at she believed that Ashleigh and the defendant were responsible.
I accept her evidence when she told me that she did not describe the car as being a VZ Commodore.
In any event, even if I accepted that she had done so, in my view, this is an inconsistency which does not detract from the overall evidence that the car that was seen driving away was a late model Holden Commodore (or Ford[25]), orange/gold in colour with a rear spoiler, of which there can be little doubt given the evidence of Melinda Buller, which I will come to later.
[25] Evidence of Melinda Buller at Transcript 325.
In answer to the suggestion in cross-examination that she was mistaken as to the make and colour of the car, Ms Morgan-Chan said that she ‘believes what I saw’. Even though she accepted that she did not have very long to look at the car, she did not accept as a possibility that she was wrong as to her description of the car.[26]
[26] Transcript 188-190.
In re-examination Ms Morgan-Chan confirmed that whilst it was dark outside she was fairly certain of what she saw of the car and its colour.[27]
[27] Transcript 210 line 36 - 211 line 4.
Robyn Morgan
On the night of the shooting Ms Morgan was in the lounge room of the house, sitting on the floor near the television set painting a picture.[28] She was using a torch and the light of the television to see because the main light in the room was not working. She thought that there might also have been a light on in the dining area at the time.
[28] Later in her evidence she said she was kneeling on the floor, but this difference does not matter.
As she was painting, she heard what sounded like an ‘electrical box blowing’ with the sound coming from her daughter Ebony’s room. She said she ‘jumped up quickly’ and then Ebony said that she had been shot at. She told Ebony to ‘get down’. Ebony then came through the hallway carrying Acacia and ran into the kitchen.
Ms Morgan accepted in cross-examination that in the statement she gave to the police on the night, she made no mention of Ebony going into the kitchen. She said that she must have been confused at the time, as the police officer was taking her statement in her backyard using a torch to see what she was writing down. She said that she did not mention it on the night because ‘I don’t think I was thinking that properly because I had a lot of anger sort of thing, a lot of anger to me’.
She did not agree that the gist of the statement she provided to the police on the night was that she saw Ebony for the first time after she had seen the car drive away.
She denied having spoken to Ebony about the evidence Ebony had given or that Ebony had told her that she had gone into the kitchen. She remained ‘pretty sure that Ebony was running through to the kitchen and that is when she looked out the lounge room window and saw the car leave’.
She stated she first told Detective Anderson the day before giving her evidence, that she remembered Ebony was in the kitchen. She maintained under cross-examination not having spoken to Ebony about the evidence.
As her daughter ran past, Ebony said ‘turn the lights off’. Ms Morgan said she did not turn any lights off in the house that night. Earlier in her evidence she said that she turned the light off in the kitchen. Yet in another part of her evidence, she agreed that she said that the kitchen florescent light was not working at the time. She later corrected her evidence to say it was the dining room light which must have been on and which she had turned off.
Ms Morgan agreed that she heard four shots, similar to that made by a ‘cap gun’, coming from the front of the house in rapid succession.
She then jumped up off the floor and made her way towards the front door and, either as she was going there or when she was there, she heard two more shots.
Ms Morgan said she made her way up against the wall near the window and quickly wound the window shutter up to a height of approximately 10 to 15 cms, before looking outside.
Under cross-examination she accepted that she told the police on the night that the window blind was almost all the way down with only approximately a 20 cm gap at the bottom. She accepted that what she had said in evidence about winding the window up must be wrong and she must have wound the window shutter down after looking through it.
She said that she saw a ‘flash like a car taking off spinning its wheels a little bit, but did not see the car itself just a ‘quick flash’. As such she was unable to notice anything about the car, the driver nor how many persons were inside the car.
She thought that she then went into her son’s room and told her three sons that ‘Ebony just got shot at.’ When she arrived at the door to her son’s bedroom is when she appreciated that there had been gunshots.
Her sons then came out of the room and they had a look into Ebony’s room where she noticed ‘two or three bullet marks’.
The defendant criticised Ms Morgan’s evidence of seeing her daughter in the kitchen as being a recent invention created by her to suit the evidence given by her daughter on this topic. Ms Morgan’s evidence as to the circumstances in which she recalled her daughter’s movements that night and conveyed that to Detective Anderson whilst waiting to give evidence was unconvincing.[29]
[29] Transcript 262-267.
There is some force in this submission, which I must consider very carefully when assessing the evidence of Ebony Morgan-Chan.
Aaron Morgan
On the night of the shooting Aaron Morgan was at home in bedroom two, watching the movie ‘Billy Maddison’ with his two brothers. The bedroom door was closed while the movie was on. He was sitting on the floor with his back to the wall when he heard two or three crackling or popping sounds. He remembered looking back at the wall and thinking it was an electrical box in the wall that may have exploded. He accepted in cross-examination that he told the police on the night ‘I heard three or four loud clapping sounds like electricity popping’.[30] He also accepted that they were ‘one after the other, really quick’.[31]
[30] Transcript 281 line 26.
[31] Transcript 279 lines 25-26.
After about 10 to 15 seconds he got up and someone opened the bedroom door.[32] Ebony was in the hallway near the doors to bedrooms one and two saying ‘We’ve been shot at’.[33]
[32] He was unable to remember who opened the door.
[33] Transcript 276 line 17.
Aaron Morgan denied that he jumped up immediately following the shots as ‘it was more of having to pause, think about what had just happened and heard and then I got up’.
He and his brothers then left the room and were in the hallway when he said ‘Call the police’ and ‘get down’, before they all got down in the hallway. His memory was that Ebony stayed in the hallway, although by then he started to panic.
At no time did he hear the sound of a car, nor did he see a car.
The defendant submitted that Aaron’s evidence contradicted his sister’s evidence that she would have been in the kitchen when the car drove away from the house.
Jye Morgan-Chan
On the night of the shooting Jye and his two brothers were in bedroom two watching the movie ‘Billy Maddison’ with the door closed. He was sitting on a couch on the side of the room which backed onto the laundry.
During the movie he heard three shots. He described the shots as ‘bang, bang, bang’. He said that the shots hit the adjoining wall to his sister’s bedroom and they sounded ‘pretty high up near the roof’.
After he heard the three shots, he and his brothers looked at the wall for around 10 or 15 seconds and then someone opened the door and said ‘We’re being shot at’.
Initially they were just staring at the wall because they thought it was electrical wires that might have exploded inside the wall. He said he got up off the couch about five or 10 seconds after the shots and then looked at the wall.
He denied the suggestion that it was only a few seconds after the shots that they were out of the bedroom. Jace had got up first, followed by Aaron and he was the last to get up from his seat and leave the room.
After he left the room he did not hear any more shots. They then inspected Ebony’s bedroom and also Aaron’s bedroom. They then went into the lounge room and he did not recall if they turned off the lights first, but he closed the roller shutter on the window and then his sister called the police.
When he exited the room he stood in the doorway between the bedroom and the hallway. At that point, all of them were in the hallway including Ebony. He did not know where his mother was at that time.
He denied that they remained in the hallway for a while but instead, they all went into the lounge room. At this stage, his mother said she had heard shots against the wall at the front of the house. He did not hear any shots other than the shots he heard whilst in bedroom two.
Jace Morgan-Chan
Jace had been in a relationship with Ashleigh Pepe for about four or five years, with the relationship ending in 2011. There were two children of the relationship, both boys, Malakai and Riley. At the time of the shooting Malakai was about 4 years old and Riley about 3 years old. After the separation, Malakai and Riley lived with Ashleigh Pepe but Jace had access to both sons every Saturday and Sunday. At times Ashleigh would drop the children off, whilst at other times he would collect them from her house.
He stated that approximately six or seven weeks before the shooting he and his sister Ebony took Malakai to the Women’s and Children’s Hospital after noticing that Malakai had bruises on his back and on his legs. Malakai was examined by a specialist for such injuries.
After Jace brought Malakai home from the hospital he did not tell Ashleigh that he had taken their son to the hospital. He was concerned that if he told her he had, then she might not let him see his children again because he would be accusing Ashleigh and Darryn of causing the bruising to Malakai.
On the night of the shooting he was in bedroom two, along with his brothers Aaron and Jye, watching a movie. He said his mother was in the lounge room and his sister Ebony was in her bedroom with her daughter Acacia.
He heard three sounds, ‘like cap guns going off’, coming from the front of the house. He immediately realised it was gun shots. As soon as he heard the shots he ‘jumped straight up and opened the door’. No more than four or five seconds had passed before he was out of the bedroom.
As he did, he noticed that Ebony was in her bedroom crouched down with her baby in her hands. She appeared to be heading into the hallway. She was pointing with her index finger into her bedroom and when he looked, he saw chips out of the wall.
The defendant submitted that if Jace was correct, then his sister could not possibly have been at the kitchen window looking outside as the car sped away from the house.
As Jace was opening his bedroom door he heard a car ‘fly off’. He stated that he is familiar with the sound of engines and that the car engine he heard sounded ‘like a six cylinder, not a V8’. The defendant submitted that if what Jace said of the sound of the engine was a reasonable possibility, then it could not have been the defendant’s car as the defendant’s VT Commodore SS has a V8 engine.
Jace said he did not hear any more shots being fired.
He then ran straight out the front door onto Forrest Street but saw nothing except darkness.
Melinda Buller
Mrs Buller resides at 7 Forrest Street, which is in the direction of travel of the car seen to drive past 6 Forrest Street by both Ms Morgan-Chan and her mother Ms Morgan.
On the night of the shooting, Mrs Buller was outside of her house having a cigarette when she heard a noise that sounded like a ‘cap gun of sorts’. She was sitting on a plastic chair at a table in front of her lounge room window, next to the front door. At the time, she was on the telephone to her girlfriend. The direction of the sounds that she heard was to her left, that is towards the direction of 6 Forrest Street. The sounds were pretty quick and she could only say that she heard three sounds.
After she heard the sounds it did not immediately register that it was gun fire, so she remained outside talking to her friend and smoking her cigarette.[34]
[34] She said it was only when she went inside her house after the car had driven by that it registered what she had heard earlier was gun shots.
When she heard the sounds, she looked to the left and saw some headlights and the outline of a car, which she was unable to make out because the headlights were shining in her direction.
Some two or three minutes later[35] she saw the car drive past her driveway and around the bend in the street. No other cars had driven past her house after she heard the last of the cap gun sounds.
[35] “A few minutes, three minutes. I didn’t really take notice of the time” : Transcript 318 lines 19-20.
There was street lighting to the left of her house where the car was and also to the right of her house between No. 5 and 3.[36]
[36] The street light is approximately at the bend in Forrest Street and at a location which would be in front of 3 Forrest Street, approximately 20 metres to the right of Ms Buller’s location at the front of her house: see view notes Transcript 107-114.
She was unable to see the car until it reached the driveway to her house due to a row of bushes up against her front fence which obscure a view of the street to the very front of the house.
Whilst on the view, I had the opportunity of sitting where Mrs Buller was at the time she observed the car drive past her house. There is a small boundary fence separating her property and the next door property at No. 5, which allows a view of Forrest Street as it makes its way around a left-hand bend about 40 metres from where Ms Buller would have been sitting at the time. One is clearly able to see a view of the street at her driveway and slightly beyond.
She described the car as ‘a new kind of Holden with a spoiler on the back, an orange colour’.[37] Her ex-husband has a car that is similar in colour to that which she observed that night.[38]
[37] Transcript 320 lines 23-24.
[38] Transcript 320.
She said she was unable to see the driver or how many persons may have been in the car. She denied that the orange coloured street lighting had any effect on her observation of the colour of the car that had driven past her house.
The photographs of the defendant’s car, Exhibit P6, were produced to her and she stated that the colour of the car in the photographs was the same colour as the car that drove past her house that night.
As to the rear spoiler, she stated that the image shown in the photographs is ‘similar from what I remember’.[39]
[39] Transcript 323.
When she was spoken to by the police on the night of the shooting she described the car as ‘it could have been a Ford or it could have been a Holden’.[40]
[40] Transcript 323.
The defendant submitted that Mrs Buller could not possibly have seen the car from which shots at 6 Forrest Street were fired because of the length of time that she said elapsed between hearing the gunshots and it driving past her house. In other words, the car she said she watched drive past her house was not involved in the shooting a few houses up the street. The defendant submitted that if the sounds heard by Mrs Buller were gunshots, they were being fired in rapid succession and she did not see the car drive past her house until some minutes later, which is different to the evidence given by the occupants of 6 Forrest Street of the firing of the shots, followed by a car accelerating quickly away in the direction of where Mrs Buller lives. If that was the case, then Mrs Buller would have seen the car drive by her house almost immediately following the sound of gunshots, not some minutes later.
I make the general observation here that it is notoriously difficult for persons to provide an accurate estimation of time, just as it is with distance. I have carefully considered the defendant’s submissions on this issue and whether Mrs Buller is describing a totally different car to the one that was involved in the shooting at 6 Forrest Street.
Based on the entirety of the evidence, I am satisfied that Mrs Buller did indeed observe the car from which the shots were discharged drive past her house. There is no other reasonable explanation for the evidence she has given. She said that no other car drove past her house following the sound of gunshots. In my view, that she happened to observe a car of very similar description and particularly colour, to that observed by Ms Morgan-Chan is also very telling. I reject as a reasonable possibility that there would just happen to be two very similar cars driving along a quiet suburban street very proximate to the sounds of gunshots, which were totally unconnected.
I am satisfied that Mrs Buller was looking at the car from which the shots were fired at 6 Forrest Street and not some other unrelated car to the shooting.
Analysis of the witnesses’ evidence
The defendant made a number of submissions concerning the evidence of the witnesses at 6 Forrest Street in an attempt to undermine their reliability, particularly that of Ebony Morgan-Chan. Her evidence was met with heavy criticism relating to her claim of having seen a car drive past the house from the kitchen window.
The defendant submitted that Ms Morgan-Chan’s evidence on this topic should not be accepted, having regard to the evidence of her brothers and mother as to her whereabouts in the house when it was being shot at.[41]
[41] Defence closing address, Transcript 579.
Put simply, it was submitted that the shooting happened too quickly for Ms Morgan-Chan to have possibly made her way into the kitchen to look out of the window as she claimed in her evidence and have done all the other things she claimed before making her way there.[42] She simply did not have the opportunity to have made her way into the kitchen in the time she claimed and so contrary to the contention of the prosecution, she was not the honest, straightforward witness described by the prosecution, but rather was untruthful on this very important issue.
[42] Transcript 587-588.
I have carefully considered the defendant’s submissions and analysed the evidence of the others in the house at the time of the shooting.
My confidence in Ms Morgan-Chan’s evidence has not been shaken by what her brothers and mother said in their evidence. Clearly, everyone inside the house was in a state of fright and panic, as the house was being shot at and in the immediate aftermath of the shooting.
Each of the witnesses recollected events differently, such as where each was at a particular time, what others did or where they went and what was said.
Ms Morgan did, in my view, change her evidence as submitted by the defendant and did so during or after her daughter had given evidence. The defendant submitted she did so in a rather poor attempt to support her daughter’s evidence of being inside the kitchen when the shots were still being fired at the house. I clearly remember the evidence given by Ms Morgan and was not impressed with her explanation for the change in her account proffered by her at the time.
Nevertheless, it does not follow that Ms Morgan-Chan did not look out of the kitchen window and see the rear of a car drive away from her house as she claimed.
Much was taking place inside the house, even in such a short space of time. Feelings of fear, panic, fright, confusion and other such emotions would naturally have been experienced by those inside the house. It is well known that a person’s recollection of events is shaped and affected by such emotions. It is equally recognised that in such situations persons will recollect things quite differently to others. The primary recollection would be focused on the shots being fired at the house and trying to understand what is happening. I am in no way surprised of the differing recollections of the witnesses. It is what I would expect in such a frightening and confusing situation.
Regarding Jace Morgan-Chan’s evidence that, in his opinion, the sound of the car engine he heard was that of a V6 and not a V8, as owned by the defendant; this was, in my view, speculation, despite his claimed expertise in recognising the different sounds of car engines. I am satisfied that he was mistaken as to the sound of the car engine. His evidence is inconsistent with the other circumstantial evidence in the case, which I have found convincing, in linking the defendant’s car to the shooting as outlined by me later in these reasons.
As I stated earlier, I was very impressed with Ms Morgan-Chan as a witness. I am satisfied that she was telling me the truth when she described what unfolded. After all, it was her bedroom which was shot at first and she was the one who yelled out to the others that they were being shot at.
I accept her evidence that she entered the kitchen. I accept her evidence that she looked through the kitchen window and her description of the rear of a car as she watched it driving past her driveway. In doing so, I have not overlooked what the others in the house have said. Each was genuinely attempting to recall events as best they could, with the exception of Ms Morgan. It does not mean that they were all accurately recalling the finer details as I have already observed. Their focus was naturally on the shots being fired at the house.
Ms Morgan-Chan’s evidence relating to the description of the car is supported by the evidence of Mrs Buller, who lived only a few houses down Forrest Street in the direction Ms Morgan-Chan stated she had seen the car drive. Mrs Buller described the car, similarly to Ms Morgan-Chan, as being an orange/gold Commodore or Ford with a rear spoiler attached to it.
The description each has given of the car matches that of the defendant’s vehicle. I make the general observation of my own, that in my experience, the colour of the defendant’s car is certainly not one that is commonly seen on the roads.
I indicate that even had I accepted the defendant’s submission that Ms Morgan-Chan’s did not see the car as it drove past her house, there remains the evidence of Mrs Buller, together with the other circumstantial evidence in the case, which I am satisfied proves that the defendant’s car was used in the shooting. That other evidence is detailed below.
Evidence of motive
I permitted the prosecution to present evidence relating to animosity between the defendant’s girlfriend (Ashleigh Pepe) and Ebony Morgan-Chan and the reason behind that animosity or enmity, namely the evidence of alleged abuse of Malakai.[43]
[43] See also evidence of Jace Morgan-Chan outlined at [94]-[96].
In my view, the evidence was relevant to establishing a possible motive for the defendant to have committed the offences.[44]
[44] Plomp v R (1963) 110 CLR 234; R v Cluse [2014] SASCFC 97.
As Vanstone J observed in R v Cluse [2014] SASCFC 97 at [72]:
It is common ground that proof of a motive is not an essential step in 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 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. [Emphasis added]
What Vanstone J so succinctly articulated above is undoubtedly a correct statement of the law as stated as far back as 1963 when the High Court had cause to decide on the use of evidence of motive in circumstantial evidence cases.[45]
[45] Plomp v R ibid, per Dixon CJ at 242 and Menzies J at 247-250.
Evidence of motive is naturally a part of human behaviour and experience and it would be unrealistic to reject such evidence as irrelevant to a circumstantial case, just as much as the absence of a motive is commonly relied upon as a circumstance tending in favour of a defendant.[46]
[46] Plomp v R ibid per Menzies J at 250.
Objection was taken to this evidence on the ground that it was hearsay as the defendant was not involved in any of the communications between Ashleigh Pepe and Ebony Morgan-Chan, nor was there any evidence that he was aware or present for any of the conversations between Ashleigh Pepe and Ebony Morgan-Chan.[47]
[47] Defendants Rule 15 Application, dated 18 August 2014 at [2]–[3].
The evidence is not being used for a hearsay purpose but rather as circumstantial evidence from which an inference could be drawn to establish a possible motive. The house at 6 Forrest Street was either deliberately targeted by someone or it was simply a random or mistaken target. Evidence which can potentially shed light on the former is admissible in my view.
The evidence established that Ashleigh Pepe and Jace Morgan-Chan had been in a relationship for between four and five years. Two children were born of the relationship, Malakai and Riley.
Following the breakdown of the relationship the two children remained in the custody of Ashleigh Pepe. Jace Morgan-Chan had regular access to his sons.
Ashleigh Pepe formed a relationship with the defendant. At the time of the shooting they lived together at 15 Ifould Street, Elizabeth Park.
Access to the boys occurred over weekends and would usually occur at 6 Forrest Street, where Jace was then living with his sister Ebony. The children were dropped off there and later collected from that address by Ashleigh Pepe, or occasionally by the defendant. On other occasions, Jace would collect his sons from Ashleigh Pepe’s house and return them there.
For some months before the shooting Ebony Morgan-Chan was living at 6 Forrest Street with her daughter, Acacia, along with her mother and two of her brothers, being Jace and Aaron. Jace’s two sons were regularly at the house over weekends for access with their father and indeed with Ebony and Robyn Morgan, the childrens’ grandmother.[48]
[48] Ms Morgan-Chan believed that Jace had access every second weekend.
Ebony Morgan-Chan and Ashleigh Pepe had been good friends for about six years,[49] until a falling out some six weeks or so before the shooting.[50]
[49] Transcript 54 lines 1-13.
[50] Transcript 60 and following.
Ms Morgan-Chan had known the defendant for about six months before the night of the shooting.
Ms Morgan-Chan gave evidence of occasions when Malakai would be dropped off with noticeable bruising on his body. She also recalled an occasion when there was bruising under Malakai’s eye.
She first noticed bruising to Malakai approximately four months before she and Ashleigh had their falling out.
When Ms Morgan-Chan asked Malakai how he came by his bruising he replied that ‘Mum and Darryn would hit him’. Malakai had said this on more than one occasion.
On Easter Saturday 2012 the two boys were visiting at 6 Forrest Street when it was decided by Jace and Ebony Morgan-Chan to take Malakai to see a doctor at the Women’s and Children’s Hospital over the bruising to his body, and in particular, a bruise to the lower spine.[51]
[51] See also evidence of Jace Morgan-Chan summarised at [110]-[111].
After consulting a doctor at the Women’s and Children’s Hospital they returned to Forrest Street where Ashleigh Pepe was waiting to collect the children.[52]
[52] Ms Morgan-Chan thought they arrived home from the hospital with Malakai around 4 pm.
It is an agreed fact that Malakai was taken to the Women’s and Children’s Hospital on Saturday 7 April 2012 (Easter Saturday). Indeed, there was no cross-examination that Malakai was not bruised at the time.
When they returned from the hospital, neither Ebony[53] nor Jace Morgan-Chan[54] made any mention to Ashleigh Pepe of having taken Malakai to the hospital, nor of witnessing any bruising to him at any time.
[53] Transcript 60 lines 20-29, 72 line 34 - 73 line 1.
[54] Jace Morgan-Chan was concerned that if he informed Ashleigh Pepe then he would no longer have access to his sons: Transcript 307 line 24 - 308 line 13.
It seems, however, that Malakai must have told his mother that he was taken to the hospital because about an hour later Ashleigh Pepe telephoned Ebony Morgan-Chan and asked: ‘Why did you take Malakai to the hospital? He’s saying that you said to the doctors to say that Darryn has been hitting him’.[55] Ashleigh Pepe was abusing her saying that she ‘dogged her’ and then hung up.[56]
[55] Transcript 60 line 31 to 61 line 18.
[56] Transcript 61 lines 2-3.
The next contact Ms Morgan-Chan had with Ashleigh Pepe was via Facebook. She and Ashleigh had an argument in ‘private messages’ on Facebook, which had started the day after Ashleigh Pepe had telephoned her.
There were other Facebook communications which were not private but on Ms Morgan-Chan’s Facebook ‘wall’ which were very derogatory of her and her family and which Ms Morgan-Chan suspected were created by Ashleigh Pepe.
The private Facebook communications between Ms Morgan-Chan and Ashleigh Pepe, received in Ms Morgan-Chan’s inbox, were tendered by the prosecution.[57]
[57] Exhibit P4. Ashleigh Peppi was using the Facebook name ‘MissAshy Edwards’. Ebony Morgan was using the Facebook name ‘EbbyEbbs’.
The Facebook argument centred around Ms Morgan-Chan having taken Malakai to the Women’s and Children’s Hospital and suggesting that Ashleigh Pepe and Darryn Edwards were responsible for the injuries observed on Malakai.
After a number of abusive Facebook conversations Ms Morgan-Chan removed Ashleigh Pepe from her list of Facebook friends.
However, Ms Morgan-Chan later re-included Ashleigh Pepe as a Facebook ‘friend’, a couple of weeks before 29 May 2012.[58]
[58] Ms Morgan-Chan said that she later ‘unblocked’ Ashleigh Pepe for ‘no reason’.
Ms Morgan-Chan stated that Ashleigh Pepe had access to another Facebook account[59] and started abusing her and her family, including her brother Jace, on her Facebook wall.
[59] The Facebook account of Guy Pepe (Ashleigh Pepe’s brother).
Ms Morgan-Chan replied by abusing Ashleigh Pepe and then they ‘just arguing back and forth and I told her that her boyfriend should shut her up and that’s where Ashleigh replied saying: “You’re f’ing – you’re fucked, wait till I see you, you’re going to get it”, and that I’ve made a big mistake of mentioning her boyfriend and bringing him into that.’[60]
[60] Transcript 81 lines 14-22.
This was the last message on her public Facebook wall that she received from Ashleigh Pepe.
On 29 May 2012 at 7.10pm there was a Facebook message sent by Ashleigh Pepe to Ebony Morgan-Chan simply stating: “Ha, ha.”[61] Nothing further was received after this post before the shooting later that same night
[61] Exhibit P4.
Ms Morgan-Chan agreed that in August 2012 she came across Ashleigh Pepe in Hindley Street and the two of them began arguing and fighting in the middle of the street. She accepted that the following day she posted a message on Facebook about this confrontation with Ashleigh Pepe.[62]
[62] Transcript 137 line 37 - Transcript 139 line 16.
As can be seen the defendant was not a party to the Facebook conversations between Ashleigh Pepe and Ms Morgan-Chan. This did not deprive the evidence of any relevance, as the defendant contended.
The classic definition of the hearsay rule can be traced back to the Privy Council’s pronouncement in Subramaniam v Public Prosecutor [1956] 1 WLR 965:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.[63]
[63] At 969.
This statement of the rule has been endorsed by the High Court in a number of judgments.[64]
[64] See for example Walton v R (1989) 166 CLR 283, R v Benz (1989) 168 CLR 111, Pollitt v R (1992) 174 CLR 558, Kamleh v R (2005) 213 ALR 97.
I have expressly not reasoned from the evidence that either Ashleigh Pepe or the defendant deliberately harmed Malakai or that the defendant is the sort of person prone to act violently and therefore committed the offences charged.[65]
[65] Section 34P of the Evidence Act 1921.
The only relevance of the evidence is, as I have already stated, strictly limited to use as an item of circumstantial evidence that provides a possible motive for what appears to have been a deliberate targeting of the house at 6 Forrest Street and so assists in considering the other items of circumstantial evidence in the case.[66]
[66] As it was used by the trial judge in R v Cluse op cit. and as used by the jury in Plomp v R op cit.
Ms Morgan-Chan stated that at the time of the shooting no-one else had anything against her or her brothers.[67] The only person who had a gripe with her was Ashleigh Pepe, which started after Ms Morgan-Chan and her brother Jace took Malakai to the hospital to have his bruises looked at.
[67] Transcript 126 lines 4-21; 165 lines 19-36.
The defendant submitted that this evidence only established animosity on the part of Ashleigh Pepe and not him. It is correct that he was not a direct party to any of the Facebook exchanges between Ashleigh Pepe and Ms Morgan-Chan. However, it does not follow from this that he was unaware of the dispute or the reason behind it.
As I observed during the course of the defendant’s closing address, human behaviour is such that it would be remarkable if a partner did not inform the other of the nature and content of an important dispute with someone else, especially if it also involves the partner.[68] This is more so in this case where Ashleigh Pepe is someone who obviously does not mind sharing publicly on Facebook her views of Ms Morgan-Chan and her family. I do not need specific evidence of the nature of the relationship between Ashleigh Pepe and her partner, the defendant, to draw an inference that Ashleigh Pepe would have informed him of her spat, or ongoing feud with Ms Morgan-Chan, as it so obviously involved the defendant in alleged abhorrent behaviour toward Malakai. Such an inference is safer to draw when one considers the content of the final Facebook message sent by Ashleigh Pepe to Ms Morgan-Chan with direct reference to Ms Morgan-Chan having mentioned the defendant and involving him in the dispute.[69]
[68] Transcript 599-601.
[69] Transcript 81 lines 14-22.
The defendant further submitted that this evidence amounted to no more than mere speculation of a possible motive. I reject that submission and am satisfied that the evidence does allow me to infer that the defendant was informed by his girlfriend, Ashleigh Pepe, or that he became aware of the nature of the allegations involving Malakai so as to found a possible motive to commit the crimes against Ebony Morgan-Chan and Jace Morgan-Chan.
In my view, the only common sense inference that is open on this evidence is that it explains why someone would want to specifically target 6 Forrest Street; someone with a motive to do so following an exchange of angry Facebook correspondence on such a sensitive matter as the physical abuse of a child.
Despite the defendant’s submissions, I am satisfied that the evidence does not inculpate anyone else in the shooting or suggest that anyone else held a motive to harm any of the occupants of the house that night.[70]
[70] Defence closing address, Transcript 597-598.
Crime scene examination
The property at 6 Forrest Street was examined by a police crime scene examiner. There was evidence that seven gun shots were fired at the house, as the photographs, Exhibit P3, clearly reveal.
From the evidence it would appear that the car was moving when the shots were fired at the house.
In bedroom one, three shots penetrated the front window[71] and struck the rear wall of the room.[72] In bedroom three, which is immediately to the right of bedroom one, one shot had penetrated the front window[73] and struck high up on the rear wall.[74] The front wall underneath the porch and next to the front door, which is further to the right of bedroom three and behind which lies the lounge room, revealed evidence of three shots having struck the brickwork.[75]
[71] Photographs 4, 5, 18-30, 58-61.
[72] Photographs 41-52.
[73] Photographs 7-8, 31-33, 81-82.
[74] Photographs 74-80.
[75] Photographs 10-14, 34-40.
Inside bedroom one, two severely damaged or deformed .22 calibre lead projectiles were located on the floor.[76] No other lead projectiles were located, either inside or outside of the house, which is hardly surprising given the very small size of the projectiles, which would make locating them extremely difficult.
[76] Photographs 62-68.
Examination of the defendant’s vehicle
The defendant’s vehicle, an orange coloured VT Commodore SS, Registration Number WYB 421, was located locked in in the carport/garage at his residence and seized by the police. The vehicle was transported to the Ottoway Police Vehicle Compound, where it was secured.
A police officer on duty in the Elizabeth area on the night of the shooting became aware of the shooting incident in which the defendant’s vehicle was allegedly used. He drove his unmarked police vehicle past the defendant’s home at 10.35 pm and observed the defendant’s vehicle was ‘reverse parked in the driveway of the property and very close to the garage door’.[77] Approximately 30-40 seconds after driving past the defendant’s house the officer executed a U-turn and when he drove past again the defendant’s vehicle was no longer visible.[78] The vehicle had obviously been driven into the garage in that short period of time.
[77] Statement of Constable Colclasure (Exhibit P18).
[78] Ibid.
Not much turns on this evidence except to reveal that the defendant’s car was seen in his driveway approximately 30 minutes after the shooting and then parked inside the garage.
Photographs of the vehicle were taken and produced in evidence.[79] The vehicle was thoroughly examined.
[79] Exhibit P6.
A pair of latex gloves were located and seized from the cup holder in the centre console.[80]
[80] Statement of witness of Leigh Murrie dated 22 July 2012 (Exhibit P19), Agreed Fact 4. The gloves were referred to as Glove 1 and 2 by the Forensic Science Centre.
A third latex glove was later discovered ‘scrunched up’ inside the second glove when the gloves were being analysed at the Forensic Science Centre.[81]
[81] Agreed Fact 4; evidence of Dr Handt.
Each of the three gloves were subjected to testing for gunshot residue through the application of a gunshot residue kit, applying stubs to the surface of the gloves.[82]
[82] Evidence of Kahlee Redman.
Further, the inner surface of each of the three gloves were also swabbed for the presence of DNA.[83]
[83] Ibid.
Underneath the driver’s seat and in a gap in the join of the floor carpet was a spent .22 Calibre Winchester Super X rim fire round of ammunition.[84]
[84] Statement of witness of Leigh Murrie dated 22 June 2012 (Exbibit P19, Exhibit P10 and Photographs P12; Detective Anderson Transcript 528-530.
No firearm was located, either in the defendant’s vehicle or at his home, nor was any other live or spent ammunition located by the police during their investigations.
The spent .22 calibre shell and the two .22 calibre projectiles recovered from bedroom one at 6 Forrest Street were also submitted to the Forensic Science Centre for testing, along with the gloves mentioned above, to determine if gunshot residue was able to be detected. The inside of the spent .22 calibre shell was stubbed utilising a gunshot residue kit.[85] The two damaged .22 calibre projectiles were examined macroscopically for the presence of gunshot residue.[86]
[85] Transcript 460 lines 16 - 35.
[86] Transcript 460 line 36 - 461 line 3.
The outside of the vehicle was examined for fingerprints with five impressions located on the passenger side of the vehicle as depicted in Photograph 26 of Exhibit P6. None of the fingerprints were those of the defendant. One fingerprint impression on the rear passenger quarter panel window was identified as belonging to a Bradley Laughanne.[87] No evidence was adduced as to this person’s connection, either to the vehicle or anyone connected to the case. No other fingerprints were identified.
[87] Agreed Fact 3.
At approximately 10.30 am on 30 May 2012 the interior of the vehicle was swabbed using a gunshot residue kit for the presence of gunshot residue. The areas were swabbed using gunshot residue stubs applied to the front driver’s and passenger sides and the rear driver’s and passenger sides.[88]
[88] Evidence of Senior Constable Jankovic.
Ballistics examination
The prosecution called a ballistics expert in Senior Constable De Laine, who gave evidence relating to his examination of the two projectiles located in Ms Morgan-Chan’s bedroom and the spent cartridge case located in the defendant’s vehicle.
SC De Laine’s evidence was limited in the sense that he did not have a firearm to make a direct comparison with the firing pin impression on the spent cartridge or with the recovered projectiles so as to identify the firearms individual characteristics.
The cartridge case or spent shell, was a .22 calibre rim fire, possibly a long fire, manufactured by Winchester and labelled Super X.[89]
[89] Transcript 370. This is also different in appearance to a .22 calibre centre fire projectile: Transcript 416. (.22 calibre rifles are usually rim fired, although there is a .223 calibre centre fire rifle which is still regarded as a .22 calibre, with a different case length, width and capability of function: Transcript 372.)
The two projectiles were badly deformed due to target impact but were nevertheless consistent with being .22 calibre copper lacquered bullets.[90]
[90] Transcript 373.
SC De Laine explained when any multiple round firearm is discharged, whether it be a fully automatic, semi-automatic or manually loaded firearm, the spent cartridge or shell case will be ejected from the side of the firearm. In an automatic or semi-automatic firearm the ejection or extraction of the spent cartridge or shell case occurs automatically upon firing. In the case of a manually loaded firearm such as a pump action, lever action or bolt action firearm, it is the manual process of reloading the firearm by the operator which will result in the ejection of the spent cartridge or shell case. In a revolver handgun the spent cartridge or shell case remains in the cylinder until manually extracted by the operator manoeuvring the cylinder to empty its contents.[91]
[91] Transcript 379-385.
He was of the opinion that the irregular appearance of the firing pin impression on the head of the spent .22 calibre cartridge located in the defendant’s vehicle was created by a modified or self-manufactured (homemade) firearm.[92]
[92] Transcript 397.
He stated that there were other possible explanations for the appearance of the unique firing pin impression such as the firing pin having deteriorated through corrosion, usage, negligence of the operator or through deliberate alteration.[93]
[93] Transcript 395.
However, as firing pins are internal to the action of the firearm they are generally more preserved than the external surfaces of the firearm.[94] Generally, the class characteristics of the firing pin are still evident even when pitted through erosion.[95]
[94] This included the firing pins of firearms retrieved from underwater: Transcript 417.
[95] Transcript 417- 418.
In this case SC De Laine stated: ‘there is no such evidence on this firing pin as to its original shape, if it did have a manufacturer’s shape originally, unless it was home made. If it was commercially manufactured then it has been, I would suggest, deliberately altered’.[96]
[96] Transcript 418 lines 2-6.
SC De Laine gave evidence of the relevance of the appearance of striae on fired ammunition. He explained that striae markings are left on a projectile or cartridge case by the various components of the firearm itself. On the projectile they may be parallel and left by the rifling, the land and groove marks, from inside the bore of the barrel. On the cartridge case they may be imparted by the firearm extractor.[97]
[97] Transcript 407 – 408.
The striae markings are a feature which is capable of comparison similar to comparing fingerprints or tool markings.[98] However, for a direct comparison one requires the firearm used so a test fire sample is obtained.[99] That was not possible in this case as no firearm was located.
[98] Transcript 408.
[99] Ibid.
The two projectiles he examined revealed that there were striae engraved into the sides of the projectiles before they were damaged upon impact.[100] The sides of the two projectiles he examined were still visible and there was no evidence of any land and groove marks.[101]
[100] Transcript 405.
[101] Transcript 405; 424 lines 24-28.
This suggested that the firearm used to fire the two projectiles had been modified with the removal of the rifling from inside the bore[102] or that the bore was a smooth bore with no rifling present, either because the firearm was homemade or was a commercially manufactured smooth bore rifle.[103] Whilst SC De Laine accepted that there are commercially manufactured smooth bore rim fire .22 calibre rifles he has never encountered one throughout his 21 years in the Ballistics Section of the police force and such firearms are not that common.[104]
[102] Either because the rifling had been drilled out or by using an abrasive to abrade the bore: Transcript 407.
[103] Transcript 407; 425 lines 1-6.
[104] Transcript 425 lines 15-18. See also Transcript 425-428.
He accepted under cross-examination that prolonged cleaning[105] or prolonged use or misuse could account for a smooth bored firearm.
[105] Especially where a wire or brass brush is used to clean the bore: Transcript 424.
However, he stated that where a bore has been smoothed through overuse or cleaning with abrasive brushes, land and groove markings would still be evident in the worn barrel. Complete obliteration of the firing marks (rifling) from the firearm barrel or bore would be required in order to produce a smooth bullet effect as observed on the damaged projectiles recovered from Ms Morgan-Chan’s bedroom.[106]
[106] Transcript 424.
SC De Laine stated that he would not have expected a commercially manufactured smooth bore firearm to have left the markings that were evident upon examination of the two projectiles recovered from Ms Morgan-Chan’s bedroom. The markings were ‘gross and not a profession end product’. A modified or homemade barrel could possibly have created those marks because in a commercially manufactured smooth bore firearm he would have expected the striae to be almost non-existent or much finer and regular than the striae markings he observed on the two projectiles.[107] He acknowledged however, that he has never encountered a smooth bore rim fire firearm and so has never examined .22 calibre projectiles fired from such a firearm.[108] He had only observed projectiles fired from homemade smooth bore firearms which produced striae which were gross and irregular in shape and depth.[109]
[107] Transcript 425 lines 24-33.
[108] Transcript 426 lines 16-20.
[109] Transcript 426 lines 1-7.
SC De Laine was cross-examined on adaptor or conversion kits which allow a larger calibred barrel to be converted into a smaller calibre barrel. He stated that he has never seen a conversion kit with a smooth bore.[110]
[110] Transcript 429.
The combination of the presence of striae and the absence of land and groove markings on the projectiles was indicative of having been fired from either a ‘homemade or modified barrel. A smooth, commercially manufactured rifle barrel should not have left those markings’.[111]
[111] Transcript 407.
It was SC De Laine’s opinion that the evidence of the firing pin impression on the .22 calibre spent cartridge case or shell located in the defendant’s car and the markings on the projectiles recovered from Ms Morgan-Chan’s bedroom, were fired from a similar firearm (either a handgun or long gun), be it a modified or homemade firearm.[112] Given the absence of a firearm to examine, he was unable to determine whether or not the .22 calibre projectiles and the spent .22 calibre rim fire shell were fired from the same firearm.[113]
[112] Transcript 409.
[113] Transcript 431.
Forensic examination of the defendant
The defendant was forensically examined. A buccal swab for DNA analysis was obtained from him.[114]
[114] Detective Anderson Transcript, 525-526; Dr Handt, Transcript 494.
After his arrest at his home each of his hands were encased in brown paper bags.[115]
[115] Transcript 525 lines 26 – 30.
At around 5 am on 30 May 2012 at the Holden Hill Police Station the defendant’s hands were swabbed using a gunshot residue kit. Gunshot residue stubs were dabbed over each of the defendant’s hands.[116]
[116] Evidence of SC Jankovic.
Gunshot residue analysis
Kahlee Redman, a forensic scientist employed at the Forensic Science Centre and specialising in chemical trace evidence, including gunshot residue, conducted an examination of the various gunshot residue stubs used to detect gunshot residue.
Gunshot residue is particles of debris formed when a firearm is discharged. It is microscopic and so not visible to the naked eye. It is comprised of chemical compounds (heavy metals) that are predominantly contained within the primer of a cartridge case of ammunition.[117]
[117] Transcript 435-436.
Gunshot residue can be deposited upon any surface. It can be deposited or transferred to someone who is in close proximity to the discharge of a firearm,[118] or someone who has handled a recently discharged firearm or spent cartridge.[119]
[118] Transcript 464.
[119] Ibid.
Studies have revealed that gunshot residue is quickly lost from a person’s hands over time, with most, if not all, being lost within three to four hours of deposit, depending on the activity of the person being tested.[120]
[120] Transcript 441 lines 30 - 35.
Different primers will contain different mixes of heavy metal chemicals.[121] Therefore, much will depend on the primer being used by an ammunition manufacturer as to what will be observed in the gunshot residue.[122]
[121] Transcript 453 lines 29-33.
[122] Transcript 456.
Centre fire rounds of ammunition normally contain lead, barium and antimony.[123]
[123] Transcript 479 lines 12-18.
The primer most commonly used in .22 calibre rim fire rounds of ammunition will contain lead, barium and silicon.[124] This combination of primer became popular with many rim fire ammunition manufacturers in the 1990s.[125]
[124] Transcript 453 lines 21-26.
[125] Transcript 480 line 31.
Prior to the 1990s the primer composition of .22 calibre rim fire ammunition contained lead, barium and antimony.[126]
[126] Transcript 481 lines 2-9.
A Winchester brand Super X long rifle .22 calibre rim fire round of ammunition will nowadays generally contain lead, barium and silicon.[127]
[127] Transcript 456 lines 33-38.
One would not normally expect to discover antimony in any gunshot residue if firing a Winchester Super X .22 calibre rim fire round through a clean barrel, unless a pre-1990s manufactured round of ammunition was being fired. [128]
[128] Transcript 457 lines 5-7; Transcript 477.
One would not expect to find particles within the environment naturally containing all heavy metals lead, barium and antimony.[129]
[129] Transcript 449 lines 16-31.
Lead and barium have been found to be derived from fireworks, although in fireworks one would expect to also find other heavy metal deposits and none were found to exist in this case.[130]
[130] Transcript 450 lines 8-25.
Accordingly, consequential amendments were necessary to the Summary Offences Act. As the Honourable Police Minister stated:
The Bill[179] transfers several police powers that relate to roads and vehicles but are unrelated to road traffic regulation or road safety from the Road Traffic Act to the Summary Offences Act. These are the power to search premises where a vehicle has been stolen or used without the owner’s consent and the power to question a person to establish the identity of the driver of a vehicle, currently in sections 37 and 38 of the Road Traffic Act. The Summary Offences Act is the appropriate place to locate general police investigation powers. The relocation of the provisions enables the national model to be implemented more consistently in South Australia.[180]
[179] Statutes Amendment (Road Transport Compliance and Enforcement) Bill 2006.
[180] Hansard, Legislative Council, 8 June 2006 at 374.
It is plain from this that Parliament did not intend to alter the effect of the repealed s 38 of the Road Traffic Act but simply to relocate the police powers, previously conferred to the police, to the Summary Offences Act.[181]
[181] Hansard may be considered to assist in determining the purpose of the section as an aid to its construction: K-Generation v Liquor Licensing Court (2009) 237 CLR 501.
The defendant drew to my attention the ruling in R v Mohammadi, Daye, Mohammadi and Nezhad [2014] SADC 95. I have read that ruling, relating to the construction of s 74AB, and with respect to the learned judge, I am unable to agree with his interpretation of the section.
The facts of this case illustrate just how unlikely it is that Parliament would have determined to change the obligation of a person from answering questions relating to the identity of the driver of a car used in a drive by shooting.
Finally, on the police questioning, the defendant submitted that as he was under arrest or detained[182] at the time he was being questioned on the topic of who was driving his car at the relevant time, then the police officers were required to advise him of his rights pursuant to s 79A of the Summary Offences Act. It was contended the defendant was therefore entitled to seek legal advice before having to answer any questions directed under s 74AB.
[182] It was accepted by the prosecution that the defendant had been arrested by STAR Force officers and was being questioned whilst outside of his home or sitting in the back of a police vehicle: see Transcript 9 at lines 10-19; Exhibit P15.
A similar argument was rejected in R v Hooper. Cox J held at 486:
Section 79a sets out certain rights of a person who is apprehended on suspicion of having committed an offence. Paragraph (b) (iii) of subs (1) provides that such a person ‘is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law)’. It is plain from these exceptive words that Parliament contemplates that there may be laws which oblige a person who is in custody to answer questions put to him by the police. In my opinion, questions put by a police officer under s 38 of the Road Traffic Act are questions of this sort. They must be truly answered, whether the person questioned is in custody or not.
After observing the purpose behind the section Cox J stated:
Permitting a person lawfully to decline to answer questions put under s 38 on the ground that his answers might tend to incriminate him would severely limit the sections apparent usefulness.[183]
[183] At 486.
Answers given by a defendant in compliance with the obligation to do so under s 74AB are not involuntary in the relevant sense.[184]
[184] See R v Hooper op cit at 487.
Obviously enough, the police cannot rely on s 74AB as a cover to fully interrogate a person’s movements when that person has been arrested and are not informed of their s 79A rights or otherwise cautioned.
The powers available to the police under s 74AB must not be used to circumvent a person’s legal rights when that person is being interviewed concerning an offence allegedly committed by them.
A number of the questions asked of the defendant fell within this category and were excluded for going beyond the permissible scope of s 74AB, in the absence of compliance with s 79A.
The relevant questions and answers of the defendant, which took place outside of the defendant’s home and in the police car, admitted into evidence, are as follows:[185]
[185] Exhibit P15 and MFI P16 at page 2 lines 7-40.
Q Ok who was driving that vehicle tonight at about 10.20 pm on … Forrest Street Blair Athol.
A No idea why.
Q No idea has that, has anybody driven that vehicle tonight.
A Yeah.
Q Ok who, who’s driven that vehicle tonight.
A I was earlier.
Q Ok and where did, where did you drive that vehicle.
A Mile End.
Q Ok and do you know what time that was.
A Earlier this evening around 8. I was there by 7.
Q Mm so you went to Mile End about what time.
A About 7 o’clock I was there.
Q And that was from here.
A Yes.
Q Yep and how long did you spend at Mile End.
A Oh well it would have been an hour or two.
Q Ok and where did you go from there.
A Home.
Q Home ok, do you remember what roads you travelled on.
A I had no.
Q Do you remember what time you got home.
A Oh not exactly no.
Q Did, did you were you in Blair Athol at all this evening.
A No.
Q No, Ok where were you at that time.
A What time.
Q 10.20 pm.
A I was back here home.
Q Ok and who were you home with.
A My girlfriend.
Q Your girlfriend.
Q Did anyone have your car.
A No.
As can be seen, the defendant denied driving his car at around the time of the shooting and also said no one else drove his car at the relevant time.
The prosecution, in its closing address, contended that the defendant lied to the police about his car being at his home address at the time of the shooting and that it is a lie which arose from a consciousness of guilt that he was in his car at the time of the shooting.[186]
[186] Prosecution closing address, Transcript 564 lines 32-36.
I rejected this submission at the time it was made to me by the prosecutor, as, in my view, such a reasoning process was circular, in light of the nature of the circumstantial evidence case presented against the defendant.[187] Ultimately, the prosecution did not disagree with my blunt response to its submission that I was not going to treat what the defendant said to the police on the night as evidence of a consciousness of guilt on his part[188] and I make clear in these reasons that I have not so reasoned.
[187] Transcript 564 line 37- 565 line 16.
[188] Prosecution closing address, Transcript 565 lines 17-18.S
The evidence of what the defendant said to the police is of limited value, although it does disclose that the defendant’s car was not totally garaged on the night, that he was driving his car on the night (albeit at an earlier time than the shooting) and that no-one other than he drove his car that night. By this latter statement I take the defendant as including that his girlfriend, Ashleigh Pepe, did not drive his car that night.
Circumstantial evidence case
The essential elements of an offence may be proved by circumstantial evidence.
Circumstantial evidence involves the drawing of an inference.
In this case, the identity of the shooter as being the defendant is based on circumstantial evidence.
As the prosecution case is entirely circumstantial in nature, the defendant’s guilt must be the only rational inference which can be drawn from the circumstantial evidence.[189]
[189] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82.
When a case against a defendant rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused.[190] If an inference or hypothesis consistent with innocence is open on the evidence, the defendant must be given the benefit of the doubt necessarily created by those circumstances.[191]
[190] Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
[191] Knight v R (1992) 175 CLR 495.
If there is a reasonable explanation for the circumstances which is consistent with innocence, then the defendant must be found not guilty.[192] This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.[193]
[192] Knight v R (1992) 175 CLR 495; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Peacock v R (1911) 13 CLR 619.
[193] Shepherd v R (1990) 170 CLR 573; Doney v R (1990) 171 CLR 207.
Even if there is only one circumstance inconsistent with a conclusion of guilt, that may be sufficient to destroy the hypothesis of guilt, depending on the nature of that individual circumstance.[194]
[194] Peacock v R (1911) 13 CLR 619; R v Taouk (2005) 154 A Crim R 69.
Where the evidence raises a reasonable possibility that the circumstances point to someone other than the defendant being the offender, then that possibility must be excluded by the prosecution beyond reasonable doubt.
In determining whether an inference is reasonable, I am to consider the evidence as a whole.
A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference.[195] I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt.[196]
[195] Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618.
[196] R v Van Beelan (1973) 4 SASR 353.
While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[197]
[197] Shepherd v R (1990) 170 CLR 573 at 575 and 585.
Whist there is no doubting the correctness of the defendant’s overall submission that unsatisfactory evidence cannot be accumulated to arrive at a level of satisfaction beyond reasonable doubt, I am permitted to look at other evidence in the case when determining the sufficiency of the evidence.
I do not have to reject one circumstance because, considered alone, no reasonable inference of guilt can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.[198] This is a particularly important reminder of the approach to circumstantial evidence, given the submissions made by the defendant in subjecting each circumstance to separate scrutiny, so as to suggest the item of evidence is unsatisfactory on its own to identify the defendant as the shooter.
[198] R v Hillier (2007) 228 CLR 618; Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Van Beelan ( 1973) 4 SASR 353.
In some cases it will be necessary to be satisfied beyond reasonable doubt of the facts upon which an inference can be drawn.
Whether or not facts, relied upon as a basis for an inference of guilt, must be proved beyond reasonable doubt, relates only to those cases in which intermediate facts form an indispensable step towards an inference of guilt. Other cases do not require the circumstances to each be proved beyond reasonable doubt, provided guilt is proved by an accumulation of those circumstances.
In Shepherd v R (1990) 170 CLR 573 the High Court drew the following distinction between the two different types of circumstantial cases, when clarifying comments expressed earlier in Chamberlain v R [No 2] (1984) 153 CLR 521
(i)cases in which a defendant’s guilt is proved by an accumulation of circumstances in which the individual circumstances need not, of themselves, be proved beyond reasonable doubt; and
(ii)cases in which a defendant’s guilt is proved by sequential reasoning, in which the intermediate facts must be proved beyond reasonable doubt.
This distinction has been applied in circumstantial cases ever since.[199]
[199] R v Hillier (2007) 228 CLR 618.
This is not a case in which any fact constitutes an indispensible link in a chain of reasoning towards an inference of guilt, such that I would first need to be satisfied of that fact beyond reasonable doubt before such an inference can be drawn.[200]
[200] Shepherd v R (1990) 170 CLR 573 at 579.
The case presented by the prosecution against the defendant falls within the former category referred to by the High Court.
I may properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, as long as I reach my conclusion that the defendant is the offender beyond reasonable doubt. In other words, I am able to convict the defendant as long as I am satisfied beyond reasonable doubt upon the combined force of the circumstantial evidence that the defendant was the shooter.
It is not for the defendant, to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation, then the defendant is entitled to be acquitted.[201]
[201] Barca v R (1975) 133 CLR 82.
The circumstantial evidence must be analysed in the light of the narrow approach taken by the prosecution to establishing the defendant’s guilt, which it confined to the defendant being the principal in the first degree; that is, he fired the shots from his car and not someone else who he was aiding and abetting at the time.
Items of circumstantial evidence
I summarise the items of circumstantial evidence relied upon by the prosecution to establish that the defendant was the person who fired the shots at the house:
1.The description of the car seen leaving the scene of the shooting as given by Ms Morgan-Chan and Mrs Buller which matched the defendant’s vehicle.
2.The admission by the defendant that his vehicle was driven that night, albeit a few hours before the shooting, and that no-one other than himself had driven the car.
3.The finding of a spent .22 calibre rim fire shell underneath the driver’s seat of the defendant’s vehicle.
4.Two damaged .22 calibre rim fire projectiles were recovered from inside Ms Morgan–Chan’s bedroom.
5.The evidence of SC De Laine that the spent shell and the projectiles were likely fired from a modified or homemade firearm.
6.The location of three latex gloves in the drink holder of the centre console of the defendant’s vehicle, two of which were later found to contain particles consistent with gunshot residue.
7.The defendant’s full DNA profile located inside Glove 2, upon which were particles consistent with gunshot residue.
8.Particles consistent with gunshot residue found on the front passenger side door frame and dash of the defendant’s car.
9.A complete mixed DNA profile of the defendant and another person was found inside Glove 2. This mixed DNA profile is greater than 100 billion times more likely to have originated from the defendant’s and the unknown person’s DNA than from the DNA of two unknown persons.
10.The above evidence viewed in the light of the evidence of a motive arising from the animosity between the defendant’s girlfriend (Ashleigh Pepe) and Ebony Morgan-Chan, stemming from Malakai being taken to the Women’s and Children’s Hospital by Ms Morgan-Chan and her brother Jace Morgan-Chan (Malakai’s father) and the suggestion that Ashleigh Pepe and the defendant being responsible for the bruising to Malakai.
11.In relation to the motive mentioned above, the Facebook communications between Ashleigh Pepe and Ms Morgan-Chan revealing the animosity that existed and the threat made on the very day of the shooting.
As the prosecution submitted, there realistically existed three possibilities on the evidence as to the identity of the shooter; namely, that it was either the defendant, Ashleigh Pepe or someone recruited by the defendant or Ashleigh Pepe, or both, to carry out the shooting.[202]
[202] Prosecution closing address, Transcript 563.
The prosecution contended that the last scenario posed above should be rejected as defying logic and common sense. It submitted that if either or both the defendant and Ashleigh Pepe had recruited someone else to do the shooting, then that would defeat the very purpose of the recruitment if the defendant’s car was to be used by others. In other words, why take the risk of being implicated when the aim would be to distance themselves. I accept this submission and so, if I am satisfied that the defendant’s car was used in the drive by shooting, I am also satisfied that a third party was not recruited to do so using the defendant’s car. Of course, it is to be remembered that the defendant told the police that no one else had driven his car that night.
There is a fourth possibility, and that is, the defendant was driving his car at the time of the shooting but that someone else in his car fired the shots.
As the defendant correctly submitted, this still leaves open the reasonable possibility that someone other than the defendant fired the shots at the house, such as Ashleigh Pepe (who was personally hostile towards Ms Morgan-Chan and threatened her on the very night of the shooting) or another person sitting in the passenger seat. If both have not been excluded by the prosecution, the defendant must be found not guilty, as the case presented against him is that he is the shooter.
Assuming Ashleigh Pepe was the shooter and the defendant was only driving the car, then, as the defendant submitted, he must be found not guilty as the prosecution has specifically presented its case on the basis that the defendant was the shooter. Ashleigh Pepe and the defendant had, between them, four young children in their care, including a baby girl.[203] If this scenario is a reasonable possibility, then someone other than them would have had to look after their children, whilst the two of them drove to 6 Forrest Street from their home at Elizabeth Park that night. Alternatively, if Ashleigh Pepe drove the defendant’s car that night with another person as the shooter, then it is possible the defendant would have remained home to care for the children.
[203] Transcript 76 line 24 – 77 line 19.
Are these reasonable possibilities open on the evidence and have the prosecution excluded them? If the evidence is viewed in isolation, these may be reasonable possibilities. However, in this case that is too simplistic an approach and is contrary to the approach one takes in circumstantial evidence cases, such as presented here by the prosecution. In my view, taking into account the entirety of the circumstantial evidence, I am satisfied that the prosecution has excluded as a reasonable possibility that the defendant allowed someone else to use his car that night.
The defendant submitted that if his car was used, then the scientific evidence suggests that more than one person was inside the car at the time and the evidence could never prove that the defendant fired the shots at the house. He submitted this was an insurmountable problem for the prosecution and must lead to the charges not being proved against him.
The defendant further submitted that, given the location of the gunshot residue inside the car as being around the front passenger door frame and dash area, if someone did shoot at the house from his car, then logically that person was sitting in the front passenger seat.[204] He submitted that given the direction of travel of the car (assuming both Ms Morgan-Chan and Ms Buller were correct), then it would be unlikely that the driver would be shooting at the house through the open front passenger window from their position in the driver’s seat.[205] This is because the car was travelling from left to right in front of the house and the driver would be further away from the house than the front passenger.
[204] Defence closing address, Transcript 611-612.
[205] Ibid.
There is also the question of the driver shooting at the house from the position of the driver’s seat. Difficulties arise in terms of the trajectory of the shots, especially given the raised elevation of the house from street level as observed at the view and the shots having to be fired through the frame of the front passenger window.
One simply does not know the exact position of the shooter in the car. Whilst it is likely the shooter was sitting in the front passenger seat it is nevertheless possible to have shot at the house from the driver’s seat through the open front passenger seat window.
The prosecution has not suggested that the defendant was both driving his car and shooting at the house at the same time. Of course that still remains a possibility on the evidence as presented by the prosecution. The prosecution case is that wherever the defendant was seated in his car, either in the front passenger seat or as driver, he alone fired the shots.
The defendant subjected the circumstantial evidence to close scrutiny. His submission was that ‘just as a river cannot rise above its source nor can unsatisfactory and questionable circumstantial evidence be added together to equal proof beyond reasonable doubt.’[206] This was very much the theme of the defence address on the evidence. I have paid close attention to the defendant’s submissions and agree that such a view of the evidence would not produce satisfaction beyond reasonable doubt.
[206] Defence closing address, Transcript 577.
The defendant also advanced alternative hypotheses to explain the individual items of circumstantial evidence set out above. This is not how circumstantial evidence cases should be analysed. The real question is whether there is a reasonable alternative explanation for the combined effect of each item of circumstantial evidence which has been excluded by the prosecution. In other words, if there exists a reasonable explanation open on the circumstantial evidence presented by the prosecution which is consistent with someone other than the defendant having fired the shots and which the prosecution has not excluded beyond reasonable doubt, then the defendant must be found not guilty.
The prosecution must exclude this alternative hypothesis beyond reasonable doubt and any other hypothesis consistent with innocence before the defendant can be found guilty.
Having closely analysed the circumstantial evidence, I am satisfied that it is cogent and strong rather than unsatisfactory or questionable.
Factual findings
Based on an analysis of the circumstantial evidence I make the following findings:
1.I am satisfied beyond reasonable doubt that the prosecution has proved that the defendant’s car was used in the shooting. In so finding, I am satisfied that the rational inferences to be drawn from the combined circumstances, excludes any reasonable explanation consistent with another car having been used in the drive by shooting at 6 Forrest Street, Blair Athol.[207]
2.I am satisfied beyond reasonable doubt that the defendant was driving his car at the time of the shooting. I have excluded as a reasonable possibility that someone other than him drove his car that night.
3.I am not satisfied beyond reasonable doubt that the prosecution has proved that the defendant fired the shots at the house. In my view, the scientific evidence simply does not permit me to exclude as a reasonable possibility that someone other than the defendant fired the shots, even taking into account the evidence of motive. The evidence of motive strongly supports the conclusion that the defendant was involved in the shooting, as I have found, but does not assist me in determining whether he, and he alone, was the shooter, or someone else in his car at the time fired the shots at the house.
4.The DNA on the gloves does not exclude someone else having fired the shots. DNA from four persons (including the defendant) was recovered from the gloves. The defendant’s DNA was only located on Glove 2, which also had someone else’s DNA in it. On Glove 3 there was DNA from two other persons and the defendant was excluded.
5.Whilst it is possible that the defendant fired the shots from the driver’s seat of his car, the location of the gunshot residue does not exclude as a reasonable possibility, that the firearm was discharged from the position of the front passenger seat by someone other than the defendant.
6.Neither Ms Morgan-Chan nor Mrs Buller were able to see inside the defendant’s car and say whether, aside from the driver, there were other occupants in the car at the time. I cannot exclude as a reasonable possibility that more than one person was in the defendant’s car when it drove past 6 Forrest Street, Blair Athol and shots were fired at the house.
7.There is nothing in the evidence which enables me to decide between the reasonable possibilities that the defendant was both the driver and the shooter, the shooter as a passenger, or the driver for the shooter.
8.I am unable to exclude therefore, as a reasonable possibility, the third scenario above in which the defendant was possibly the driver, but not the person who fired the shots at the house.
9.Had the prosecution presented its case on the basis of a joint enterprise to commit the offences, I would have been satisfied beyond reasonable doubt of the defendant’s participation in the crimes and would have found him guilty.
10.I agree with the defendant’s submission that the evidence is insufficient to prove what the prosecution contended was the sole basis of the defendant’s liability.
[207] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
Conclusion
I am not satisfied that the prosecution has proven the identity of the shooter as being the defendant. It has not excluded as a reasonable possibility that someone else fired the shots from the defendant’s car.
Verdicts
I therefore find the defendant not guilty of all counts charged on the Information.
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