R v Fitzgerald & Fleming

Case [2023] SASCA 34

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v FITZGERALD & FLEMING

[2023] SASCA 34

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

6 April 2023

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING - APPEALS BY WAY OF REHEARING

EVIDENCE - PROOF - CORROBORATION - INDEPENDENT CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Following a trial without a jury, the respondents were found not guilty of one count of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and one count of discharge a firearm to injure, annoy or frighten, contrary to s 32AA of the CLCA.

Pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’), the Director of Public Prosecutions, (SA) (‘the Director’) sought permission to appeal against the acquittals.

The Director complained that the trial Judge's reasons were inadequate (Ground 1); the trial Judge failed to give the matter ‘proper, genuine and realistic consideration’ (Ground 2); and erred in his approach to circumstantial evidence (Ground 3).

Held, per the Court, granting permission to appeal pursuant to s 157(1)(b)(i) of the CPA and allowing the appeal:

1.The trial Judge failed to properly apply the principles attending circumstantial evidence when considering the case against each respondent. The trial Judge artificially divorced the evidence as to each respondent’s involvement in the preparations for the offending from his consideration as to each respondent's presence at the scene. Given the way the case was put, the prosecution was required to establish the respondents’ presence at the crime scene in proof of the charged offences. However, a finding as to presence was capable of being both informed, and supported by, the body of circumstantial evidence evincing each respondent's involvement in the preparations for the offending. 

2.Whilst revealing his erroneous approach to circumstantial evidence, the trial Judge's reasons were not inadequate.

3.The Director’s complaint as to a failure to give ‘proper, genuine and realistic’ consideration to the charges is subsumed by the other grounds of appeal and does not arise for determination.

4.The trial Judge’s erroneous approach to the circumstantial evidence was inherently capable of affecting the verdicts. On an independent review of the record, each respondent's acquittal was not inevitable, irrespective of the error. Notwithstanding principles of double jeopardy, the interests of justice and reasons of public policy require that permission to appeal be granted and the appeal be allowed.

In relation to each respondent, permission to appeal is granted,…

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R v Fitzgerald & Fleming [2023] SASCA 34
Case
[2023] SASCA 34
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Director of Public Prosecutions against the acquittal of the respondents, Fitzgerald and Fleming, on charges related to a home invasion and firearm discharge. The incident involved five men, affiliated with the Rebels Outlaw Motorcycle Club, forcing entry into a home and pursuing the occupants, during which a firearm was discharged. The prosecution's case at trial was that Fitzgerald was the man who discharged the firearm, and Fleming was the driver of the vehicle used by the offenders. The central dispute at trial was the identity of the offenders.

The legal issues before the court included whether the Director's appeal against acquittal was by way of rehearing, the application of the principles of double jeopardy to such appeals, and whether the common law proviso, which allows an appellate court to dismiss an appeal against conviction if it finds no miscarriage of justice despite an error of law, applied to appeals against acquittals. The respondents also contended that the Director needed to establish that any error of law resulted in a miscarriage of justice.

The Court of Appeal held that the Director's appeal was by way of rehearing, meaning the court was generally confined to the materials presented at trial. It affirmed that the principles of double jeopardy applied strongly to appeals against acquittals, reflecting a fundamental right to be spared further jeopardy after a superior court acquittal. The court concluded that the structure of the relevant legislation, specifically section 158 of the Criminal Procedure Act, indicated that the common law proviso did not apply to appeals against acquittals. The court also considered, by analogy with appeals from Magistrates' Court decisions, the requirement for the Director to demonstrate a miscarriage of justice.

The court ultimately determined that the proviso in section 158(2) of the Criminal Procedure Act did not apply to a Director's appeal against an acquittal. The court's reasoning focused on the statutory interpretation of the relevant provisions and the established common law principles concerning double jeopardy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is with these principles in mind that we turn to consider the evidence adduced at trial and the grounds of appeal.Evidence at trial On the evening of 24 May 2019, at about 10.30pm five men, who were all affiliated with the Rebels Outlaw Motorcycle Club (‘the Rebels’), forcefully entered the home of Mr Dylan Devries and AB at 13 Parkfield Loop, Paralowie. The offending was motivated by a dispute between Mr Bradley Danielle, a member of the Rebels, and Mr Devries. The offenders forced their way into the home via the front garage roller door, and then through the laundry door. As the offenders were forcing their way through the laundry door, AB and Mr Devries fled the property. The five men pursued them in their vehicle and, as Mr Devries entered the nearby reserve on foot, the offenders’ vehicle pulled up next to the reserve and one of the offenders discharged a firearm, twice, in the direction of Mr Devries before the vehicle sped off. The offending was captured on CCTV footage which depicted the five offenders arriving at the victims’ home in a dark-coloured Holden Astra. The footage revealed four of the five men were armed, one with a handgun and the other three with crowbars. Four men had their faces covered by masks and the other was wearing a balaclava. The prosecution case at trial was that the respondents were two of the five offenders; the first respondent, Fitzgerald, was allegedly the man armed with the firearm which he discharged twice, and the second respondent, Fleming, was allegedly the driver of the Holden Astra vehicle. The main issue in dispute at trial was identity. Each respondent contended that the prosecution had not proved he was one of the five men that forced their way into the home. The prosecution case was entirely circumstantial. As noted above, the prosecution alleged that the offending was motivated by animosity between Bradley Danielle, a member of the Rebels, and Dylan Devries and his brothers, Ben and Daniel Devries. That animosity arose from two separate incidents: first, a physical altercation between Ben Devries and Bradley Danielle that occurred in May 2018 (‘the May 2018 incident’); and second, a confrontation between Bradley Danielle and Dylan and Daniel Devries on the Salisbury Highway in the hours preceding the offending on 24 May 2019 (‘the Salisbury Highway incident’). In relation to Fitzgerald, his motive is solely attributable to his association with the Rebels. There was no evidence to suggest that he was involved in either of the incidents with the Devries brothers prior to the offending. In relation to Fleming, he was not involved in the Salisbury Highway incident or in the earlier altercation between Bradley Danielle and the Devries brothers that occurred in May 2018. The prosecution relied on a text conversation between him and JF (allegedly another of the five offenders) shortly after the Salisbury Highway incident to confirm motive. In that text conversation, both JF and Fleming referred to the Devries brothers as ‘Fucking dogs’: Fleming: “Who is devries”JF: “Used to be a part if club bro now there in rock machine”Fleming: “Fucking dogs”JF: “Fucking dogs”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents submitted that in the present case, notwithstanding any error of law that has been made out, the verdicts of acquittal were not directly challenged as unreasonable, and in those circumstances there was not a sufficient basis to warrant a grant of permission unless this Court could be satisfied of the respondents’ guilt beyond reasonable doubt, or the error is such that the Court is denied the capacity to make that assessment. Consideration The Director’s appeal to this Court under s 157(1)(b) of the CPA is by way of rehearing and, as such, this Court is ordinarily confined to the materials available to the sentencing Court. There was no application pursuant to s 166 of the CPA for this Court to receive further evidence. As discussed above, the principles of double jeopardy as articulated in Everett v The Queen apply to a Director’s appeal against an acquittal. As Peek J said in R v Brougham:[18][18] (2015) 122 SASR 546 at [7] per Peek J.The application of the double jeopardy principles is all the stronger in a case such as the present which concerns an application for permission to appeal against an acquittal rather than a sentence; at common law, citizens traditionally had a fundamental right to be spared the further jeopardy of an appeal from an acquittal after a trial in a superior court. In relation to the question of whether the common law form proviso in s 158(2) of the CPA applies to an appeal against an acquittal, the structure of s 158 tends against that conclusion. Sub-section 158(1) deals with the determination of an appeal against conviction; and sub-section 158(3) refers to the dispositive powers of the Court of Appeal upon allowing an appeal against a conviction. An appeal against an acquittal is not dealt with until s 158(4), and after the proviso in s 158(2). Further, in its predecessor the text of the proviso was found in s 353(2a) of the CLCA and limited to appeals against conviction. A plain reading of s 158 of the CPA shows that the proviso does not apply to a Director’s appeal against an acquittal. As to the respondents’ alternative contention, that the Director must establish that the error of law was productive of a miscarriage of justice, some assistance may be drawn from those authorities dealing with appeals from Magistrates’ decisions to convict or acquit a defendant. Section 42(5) of the Magistrates Court Act1991 (SA) (‘the MCA’) governs such appeals. It provides:(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;(b) it may remit the case for hearing or further hearing before the Magistrates Court;(c) it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.