R v Fitzgerald & Fleming - [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, the acquittal is set aside, and the matter is remitted to the District Court of South Australia for retrial.

Criminal Appeals Act 1924 (SA); Criminal Law Consolidation Act 1935 (SA) ss 32AA, 170(1), 350, 350(1a), 351(2a), 352, 352(1), 352(1)(ab), 352(2), 353(2a), 353(3); Criminal Law Consolidation Amendment Act 1980 (SA) ss 6(a), 7(b), 9; Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA) s 6; Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) ss 2, 3; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA) ss 7, 8; Criminal Procedure Act 1921 (SA) ss 157, 157(1)(b), 157(1)(b)(i), 158, 158(1), 158(2), 158(3), 158(4), 158(5), 166; Joint Criminal Rules 2022 (SA) rr 204.2(1), 204.2(1)(b), 204.2(2); Juries Act 1927 (SA) ss 6, 7(1), 7(4); Juries Act Amendment Act (SA) s 5; Magistrates Court Act 1991 (SA) ss 42, 42(1), 42(5), referred to.
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616; DL v R (2018) 266 CLR 1 ; Everett v The Queen (1994) 181 CLR 295; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Le Cornue v Thomas (2019) 134 SASR 421; Police v W, BC (2006) 160 A Crim R 278; R v Brougham (2015) 122 SASR 546; R v Hillier (2007) 228 CLR 618; R v Kerr (No 2) [1951] VLR 239 ; Shepherd v The Queen (1990) 170 CLR 573; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Theophilus v Police (2011) 110 SASR 420; Wigg v Architects Board (SA) (1984) 36 SASR 111, discussed.
AK v Western Australia (2008) 232 CLR 438; Douglass v The Queen (2012) 86 ALJR 1086; Hamra v The Queen (2017) 260 CLR 479; JGS v The Queen [2020] SASCFC 48; Kahn v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; M v The Queen (1994) 181 CLR 487; Musico v Police [2003] SASC 26; NBM v The Queen [2021] SASCA 105; Nikolettos v Johnston (1991) 14 MVR 491; Newman v Byrne [1969] SASR 350; Norris v The King [2023] SASCA 24; O’Leary v Daire (1984) 13 A Crim R 404; Police and Department for Correctional Services v Mahon [2022] SASCA 76; Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996) ; Police v Cadd & Ors (1997) 69 SASR 150; Police v Rosales (SA) [2017] SASC 118; Pope v Ewendt (1977) 17 SASR 45; R v Buttigieg (2020) 352 FLR 170; R v Fleming; R v Maher (2017) 129 SASR 27; R v Garner; R v Webb [2021] SASCA 68; R v Hamra (2016) 126 SASR 374; R v Keyte (2000) 78 SASR 68; R v Pacitti [2022] SASCA 108; R v Willingham (2012) 112 SASR 278; Stock v Wierda (unreported, Supreme Court of South Australia, SA, Debelle J, No 2487 of 1990, 21 June 1991) ; Thorogood v Warren (1979) 20 SASR 156; Trussell v The King [2023] SASCA 5; Wainohu v New South Wales (2011) 243 CLR 181; Weinel v Rojas (unreported, Supreme Court of South Australia, SA, Olsson J, 10 June 1994), considered.

R v FITZGERALD & FLEMING
[2023] SASCA 34
Court of Appeal – Criminal: Doyle, Bleby & David JJA

THE COURT: The first respondent, Daniel Glenn Fitzgerald (‘Fitzgerald’), and the second respondent, Tyson Mark Fleming (‘Fleming’), were jointly charged with 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’) (Count 1), and one count of discharge a firearm to injure, annoy or frighten, contrary to s 32AA of the CLCA (Count 2).
On 23 December 2021, following a trial without a jury, the respondents were found not guilty and acquitted of the charges.
The Director of Public Prosecutions (SA) (‘the Director’) now seeks permission to appeal the respondents’ acquittal pursuant to s 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’).
Appeal Grounds
The Director complains that the reasons of the trial Judge were inadequate (Ground 1); the trial Judge failed to give the matter ‘proper, genuine and realistic consideration’ (Ground 2); and the trial Judge erred in his approach to the consideration of the circumstantial evidence by: failing to consider all the items of circumstantial evidence; and failing to consider that evidence as a whole (Ground 3).
The question of permission to appeal on Grounds 1, 2 and 3 was referred to this Court for consideration.
The nature of the appeal to this Court
The Juries Act1927 (SA) (‘the Juries Act’) makes provision for trial without a jury. Pursuant to s 6 a ‘criminal trial in the Supreme Court or the District Court is, subject to this Act, to be by jury’. However, s 7(1) provides:
7—Trial without jury
(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner, the trial will proceed without a jury
Under s 7(4) of the Juries Act, if a criminal trial proceeds without a jury, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
Appeals against a conviction or acquittal, from a trial without a jury, are governed by the CPA. Section 157 relevantly provides:
157—Right of appeal in criminal cases
(1) Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any question that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2) the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal;
(b) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Court of Appeal, appeal against the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
(c)…
In relation to the determination of appeals, s 158 of the CPA relevantly provides:
158—Determination of appeals in ordinary cases
(1)     The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a)the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b)the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(c)on any ground there was a miscarriage of justice.
(2)     The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3)     Subject to the special provisions of this Act, the Court of Appeal will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
(4)     On an appeal against acquittal brought by the Director of Public Prosecutions, the Court of Appeal may exercise any 1 or more of the following powers:
(a)it may dismiss the appeal;
(b)it may allow the appeal, quash the acquittal and order a new trial;
(c)it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(5)     If the Court of Appeal orders a new trial under subsection (4)(b), the Court—
(a)may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
It can be seen that the Director may, with the permission of the Court of Appeal, appeal against an acquittal on a trial without a jury, or on a trial by jury where the trial Judge directed the jury to acquit. Unlike the common form appeal provisions, that relate to a defendant’s appeal against conviction, there is no limitation on the type of error which the Director may allege on an application for permission to appeal.
The dispositive powers confer a discretion on this Court to allow the appeal, quash the conviction and order a retrial. There is no power to substitute a conviction.[1]
[1] R v Willingham (2012) 112 SASR 278; R v Hamra (2016) 126 SASR 374.
By way of background, no right of appeal lay at common law in relation to a conviction or acquittal on an information, or from sentence upon conviction on an information, until the enactment of the Criminal Appeals Act 1924 (SA) (‘the Criminal Appeals Act’), and then only in relation to a defendant; the Crown was provided no right of appeal against either an acquittal or sentence upon conviction.
The Criminal Appeals Act was repealed by the CLCA.
In 1980, s 352 of the CLCA was amended to give to the Attorney-General a right to seek leave of the Full Court to appeal against a sentence on a conviction upon information in the Supreme Court and District Court.[2]
[2] Pursuant to s 9 of the Criminal Law Consolidation Amendment Act 1980 (SA), s 352 of the Criminal Law Consolidation Act 1935 (SA) was amended by inserting section (2) after subsection (1).
Section 350 of the CLCA was also amended to include a provision that where a person is tried upon information and acquitted the Court could, upon the application of the Attorney-General, reserve any question of law arising upon the trial for the consideration and determination of the Full Court.[3] The reservation of any question of law could not invalidate or otherwise affect the acquittal.[4]
[3] Pursuant to s 6(a) of the Criminal Law Consolidation Amendment Act 1980 (SA), s 350 of the Criminal Law Consolidation Act 1935 (SA) was amended by inserting section (1a) after subsection (1).
[4] Pursuant to s 7(b) of the Criminal Law Consolidation Amendment Act 1980 (SA), s 351(2a) of the Criminal Law Consolidation Act 1935 (SA) was inserted after subsection (2).
In 1996, s 352 of the CLCA was again amended to provide that if a court makes a decision on ‘an issue antecedent to trial’ that is adverse to the prosecution, the Director may appeal against a decision as of right on any ground that involves a question of law alone or any other ground with the leave of the Full Court.[5]
[5] Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA) s 6.
After the Juries Act was amended in 1985 to provide for trial without a jury,[6] the CLCA was amended to provide for the Director to make application for permission to appeal against a verdict of acquittal in the Supreme Court and District Court.[7] Relevantly, ss 352(1)(ab), 353(2a) and (3) provided:
[6] Juries Act Amendment Act 1984 (SA) s 5.
[7] Pursuant to s 2 of the Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA), s 352(1)(ab) was inserted after s 352(1) of the Criminal Law Consolidation Act 1935 (SA). That section was further amended by s 7 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA). Section 353(2a) of the Criminal Law Consolidation Act 1935 (SA) was inserted pursuant to s 3 of the Criminal Law Consolidation (Appeals) Amendment Act 2000 and amended by s 8 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA). Section 353(3) of the Criminal Law Consolidation Act 1935 (SA) was also inserted pursuant to s 8 Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA).
352—Right of appeal in criminal cases
(1)Appeals lie to the Full Court as follows:
…
(ab)if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i)if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
353—Determination of appeals in ordinary cases
…
(2a)On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:
(a)it may dismiss the appeal;
(b)it may allow the appeal, quash the acquittal and order a new trial;
(c)it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(3)If the Full Court orders a new trial under subsection (2a)(b), the Court—
(a)may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
Those provisions are now effectively reproduced in ss 157(1)(b), 158(4) and (5) of the CPA set out above.
Rehearing
The Director seeks permission to appeal the respondents’ acquittals pursuant to section 157(1)(b)(i) of the CPA. As set out above, the dispositive powers of this Court on that application are found in s 158(4). Although the CPA itself is silent as to the nature of an appeal against an acquittal under s 157(1)(b)(i), rule 204.2(1) of the Joint Criminal Rules 2022 (SA) (‘the Rules’) states the appeal is to be by way of rehearing. The rule relevantly provides:
204.2—Hearing
(1)Subject to any statutory provision to the contrary—
(a)an appeal is to be by way of rehearing;
(b)the Court may draw inferences from evidence adduced in the proceeding at first instance; and
(c)the Court may hear further evidence in its discretion.
Given the absence of any statutory provision to the contrary, an appeal against an acquittal is by way of ‘rehearing.’ However, that concept may have different meanings depending upon the statutory context.
In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor,[8] Mason J outlined the different kinds of appeal which may be created by a legislature with respect to the decisions of judicial and administrative tribunals. These included: first, an appeal stricto sensu where the question is whether the judgment complained of was correct on the material before the trial Court; second, an appeal by way of rehearing on the evidence before the Appeal Court; third, an appeal by way of rehearing on the evidence before the trial Court supplemented by such further evidence as the Appellate Court admits under any statutory power to do so; and fourth, an appeal de novo in which the Appeal Court hears the matter afresh.[9]
[8] (1976) 135 CLR 616.
[9] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616 at 619-622 per Mason J.
The nature of the appeal will ultimately be determined by reference to a statutory construction of the legislative provisions enabling and governing the appeal. As Cox J said in Wigg v Architects Board (SA):[10]
[10] (1984) 36 SASR 111 at 113 per Cox J.
The use of the word “rehearing” will not be decisive, because that is a word to which different meanings have been given. It will be a matter of discerning Parliament's intention from an examination of the legislation as a whole. … It is not to be supposed, of course, that a statutory appeal procedure will always fit easily into one or other of the three categories discussed above. It is open to a legislature to create any kind of appeal it pleases, including a hybrid that exhibits features of more than one of the classic categories.
(citations omitted)
The provisions governing an appeal under s 157(1) of the CPA tend against a conclusion that the appeal is one of either stricto sensu or amounting to an appeal de novo. Those features include that: the Court has the power to receive fresh evidence as provided for by s 166 of the CPA; pursuant to the Rules, the Court may draw inferences from evidence adduced at first instance;[11] the proceeding is to be determined on its merits;[12] and the dispositive powers contained in s 158 of the CPA. Thus, in this appeal the Court proceeds by way of rehearing on the record and any fresh evidence that it may, exceptionally, admit under s 166 of the CPA.
[11] Joint Criminal Rules 2022 (SA) r 204.2(1)(b).
[12] Joint Criminal Rules 2022 (SA) r 204.2(2).

A question arose on the appeal as to whether this Court is subject to the principles of appellate restraint as set out in Fox v Percy[13] per Gleeson CJ, Gummow and Kirby JJ:[14]
[13] (2003) 214 CLR 118.
[14] Fox v Percy (2003) 214 CLR 118 at [23] per Gleeson CJ, Gummow and Kirby JJ.
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole .
(citations omitted)
It is to be accepted that within those constraints attending the appellate process, this Court must conduct a review of the trial, the evidence, and the trial Judge’s reasons, including a review of the proper inferences to be drawn from the evidence. This review must be on the facts and the law.[15] However, in the present matter, the prosecution case was based almost entirely on circumstantial evidence and there was little issue taken as to the credibility of the witnesses. There was no defence case put on behalf of either respondent. In issue, were the incriminating inferences the prosecution sought to draw from largely undisputed evidence. Consequently, there was little disadvantage to this Court in assessing the evidence and inferences capable of being drawn from the evidence.
[15] Fox v Percy (2003) 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ.
The principles of appellate restraint discussed in Fox v Percy also had less significance in this matter because of the nature of the Director’s grounds of appeal which alleged errors of law rather than a complaint as to factual findings. There was also no complaint that the verdict of an acquittal in relation to each respondent was unreasonable or could not be supported having regard to the evidence.
In this matter, the three grounds of appeal are interrelated. The standalone appeal grounds relate to the trial Judge’s alleged failure to properly apply the principles of circumstantial evidence to the prosecution case, as put at trial, and the alleged inadequacy of his reasons as to why the prosecution case was not established beyond reasonable doubt. They are each separately informed by the complaint that his Honour failed to give ‘proper, genuine and realistic consideration’ to his task; that is, his Honour failed to properly consider the evidence, make sufficient findings of fact, and articulate how the evidence and findings of fact bore on the ultimate question of the respondents’ guilt.
Parties submissions as to the nature of the appeal
It is common ground between the Director and each respondent that the appeal is to proceed by way of ‘rehearing’ and that the principles for granting the Director permission to appeal, as expressed in Everett v The Queen,[16] apply to an appeal against an acquittal. However, the parties diverged as to the nature and scope of the rehearing which this Court is obliged to conduct.
[16] (1994) 181 CLR 295.
The Director submitted that if an error of law is established there is no requirement that this Court needs to be satisfied that it resulted in a miscarriage of justice. However, the Director accepted that the dispositive powers are expressed in discretionary terms such that if an inconsequential legal or factual error is made out; that is, one not capable of having any material impact on the verdict, the Court would not necessarily grant permission to appeal or order a retrial.
The Director contended that in the present case, the alleged errors are fundamental such that the trial has not been conducted according to law and, in those circumstances, the Court should exercise its discretion to grant permission and order a retrial. The Director submitted that the principles attending appellant restraint, as articulated in Fox v Percy, are not applicable in the present case because this Court is in as good a position as the trial Judge to assess the evidence and to decide whether to draw any incriminating inferences. Further, the Director contended that the errors of law resulted in his Honour overlooking or attaching any weight to materially probative evidence. Therefore, the alleged legal errors were inherently capable of affecting the verdict.
On the other hand, the respondents submitted that the proviso found in s 158(2) of the CPA applies to the Director’s appeal against an acquittal; there is no express limitation to the operation of the proviso to an appeal against an acquittal. The respondents submitted that the effect of s 7(4) of the Juries Act is that a trial judge’s finding in a trial without a jury has the same status as the verdict of the jury. Thus, it is necessary to frame the question for this Court by reference to well-established principles in relation to the common form appeal provisions, and the test under M v The Queen.[17]
[17] (1994) 181 CLR 487.
In the alternative, the respondents submitted that irrespective of whether the proviso applied, the Director must establish that the error of law was productive of a miscarriage of justice; that is, the Director is required to show that any established error of law deprived the prosecution of the possibility of a conviction. Further, the respondents submitted that the materiality of the error fell to be determined by this Court’s own assessment of whether the respondents were proven guilty beyond reasonable doubt at trial and this is the metric by which the materiality of the errors of law should be determined.
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.
By reason of the statutory terms of s 42, the prosecution can institute an appeal, as of right, against an acquittal. Such appeals are by way of rehearing. The rights of the parties on appeal are to be determined on the facts before the appellate court, and by the law applying at the time of the appeal. It may give judgment at that time as if the case was before the court at first instance.[19]
[19] Police v Cadd & Ors (1997) 69 SASR 150 at 190 per Lander J.
Notwithstanding that the proviso found in s 158(2) of the CPA is not in terms applicable, the relevant provisions of the MCA have been interpreted as not requiring or permitting the appellate court to allow an appeal, despite an error in the court below, if satisfied there has been no miscarriage of justice.[20]
[20] Gazepis v Police (1997) 70 SASR 121 at 129 per Doyle CJ, citing at 129 citing Newman v Byrne [1969] SASR 350 at 353 per Mitchell J and O’Leary v Daire (1984) 13 A Crim R 404 at 416 per White J.
In Gazepis v Police[21] (‘Gazepis’), the Magistrate excluded the defendant from the courtroom on one occasion during his trial. The appellant complained that he had been denied a fair trial. The Court held that whilst it is a fundamental right of all persons to be present during their trial, the wrongful exclusion of an accused person from his trial will not inevitably lead to a conclusion that the trial has miscarried; the proper approach is to consider the circumstances of the irregularity and the significance of the error that has occurred. Chief Justice Doyle considered that whilst the appellant’s exclusion could not have affected the decision reached by the Magistrate, an error involving an infringement upon a fundamental right may require a different approach, and the Court should not adopt a ‘rigid or technical approach’ but assess the significance of the error that occurred.[22]
[21] (1997) 70 SASR 121.
[22] Gazepis v Police (1997) 70 SASR 121 at 130 per Doyle CJ.
In Gazepis, Doyle CJ adopted the approach taken in R v Kerr (No 2)[23] which acknowledged that the question ‘does not depend upon the effect which the departure in question has upon the verdict; but is rather whether there has been a serious departure from essential requirements of the law.’[24] His Honour concluded that ‘the trial was a fair trial, despite the irregularity that occurred.’[25]
[23] [1951] VLR 239.
[24] Gazepis v Police (1997) 70 SASR 121 at 130 per Doyle CJ, citing R v Kerr (No 2) [1951] VLR 239 at 241.
[25] Gazepis v Police (1997) 70 SASR 121 at 130 per Doyle CJ.
In Theophilus v Police[26] (‘Theophilus’), Peek J considered the question of when an appeal under s 42 of the MCA may be dismissed even though a ground of appeal has been made out. His Honour referred to numerous authorities where a ground of appeal was made out, but the appeal was dismissed on the basis that the respondent had shown the magistrate was satisfied the charge had been ‘clearly proven’ irrespective of the error.[27] His Honour noted that Doyle CJ in Gazepis had used the slightly different language of ‘miscarriage of justice’.[28] Peek J considered that it was incumbent upon the respondent to establish that the offence had been clearly proven.[29]
[26] (2011) 110 SASR 420.
[27] Theophilus v Police (2011) 110 SASR 420 at [54] per Peek J citing Pope v Ewendt (1977) 17 SASR 45, O’Leary v Daire (1984) 13 A Crim R 404, Stock v Wierda (unreported, Supreme Court of South Australia, Debelle J, No 2487 of 1990, 21 June 1991), Nikolettos v Johnston (1991) 14 MVR 491, and Musico v Police [2003] SASC 26.
[28] Theophilus v Police (2011) 110 SASR 420 at [54] per Peek J.
[29] Theophilus v Police (2011) 110 SASR 420 at [55] per Peek J
Peek J returned to this issue in Police v Rosales (SA)[30] and Le Cornu v Thomas.[31] The latter authority concerned an appeal in this Court from criminal proceedings before the Environment, Resources and Development Court, which is governed by s 42(5) of the MCA. At first instance, the appellant was found guilty of regulatory offences. On appeal, the appellant alleged two errors of law: the misuse of each defendant’s out of court statements against the other; and inadequacy of reasons. The respondent accepted that the first of those grounds of appeal had been established and submitted that the appeal should nevertheless be dismissed.
[30] [2017] SASC 118.
[31] (2019) 134 SASR 421.
The Court allowed the appeal. Peek J confirmed the approach taken in Theophilus and said that the use of the term ‘miscarriage of justice’ may cause confusion with the common form criminal appeal provisions which do not apply to appeals under s 42(1) of the MCA. Peek J reiterated that it was for the respondent to establish that the Magistrate would have found the charge proven irrespective of the error;[32] that is, the error had no effect on the outcome.[33] In that matter, Lovell J, whilst generally agreeing with reasons of Peek J, deferred the question of the appropriate test to be applied under s 42(1) of the MCA for allowing an appeal, once an error of law had been established, as the issue was not fully argued. He considered that whichever test was applied it was appropriate to allow the appeal and order a retrial.[34] Bampton J allowed the appeal.[35]
[32] Le Cornu v Thomas (2019) 134 SASR 421 at [30]-[31] per Peek J.
[33] Police and Department for Correctional Services v Mahon [2022] SASCA 76 at [84] per Livesey P, Lovell and Doyle JJA.
[34] Le Cornu v Thomas (2019) 134 SASR 421 at [38]-[41] per Lovell J.
[35] Le Cornu v Thomas (2019) 134 SASR 421 at [35]-[37] per Bampton J.
It is to be noted that Gazepis,Theophilus, Police v Rosales (SA)[36] and Le Cornu v Thomas involved a defendant’s appeal against the police.
[36] [2017] SASC 118.
Appeals against acquittals by magistrates, are as of right. There is no express requirement for a grant of permission.However, appellate restraint has been exercised in respect of such appeals.[37] This is particularly so where the acquittal proceeded from a lack of satisfaction of guilt on the facts as distinct from an error of law. Where there is an error of law the appellate court has been more willing to interfere.[38]
[37] R v Brougham (2015) 122 SASR 546 at [49]-[52] per Peek J, referring to Thorogood v Warren (1979) 20 SASR 156, Weinel v Rojas (unreported, Supreme Court of South Australia, SA, Olsson J, 10 June 1994), Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996), and Police v W, BC (2006) 160 A Crim R 278.
[38] Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996); Police v W, BC (2006) 160 A Crim R 278.
As White J said in Police v W, BC:[39]
[39] (2006) 106 A Crim R 278 at [12] per White J.
The approach of this Court generally to appeals by the prosecution against the dismissal of a charge based on a finding of reasonable doubt is well established. This Court is reluctant to interfere with a verdict of acquittal based upon such a finding. There are two considerations which cause this Court to adopt that approach. The first is that a finding of reasonable doubt often rests on the magistrate's appraisal of the witnesses. The second is that a prosecution appeal places the respondent in a situation of double jeopardy. Where there is an error of law, the court may be more willing to interfere.
Prosecution applications for permission to appeal against acquittal by a judge without a jury are rare. The matters relevant to a grant of permission have been discussed at length in the case of R v Brougham.[40] In that case, the Court held that principles of double jeopardy, as discussed in Everett v The Queen,[41] applied to appeals against acquittals; where a right of appeal by permission is expressly provided to the prosecution, this Court will have close regard to double jeopardy principles when considering whether to grant permission to appeal against an acquittal.
[40] R v Brougham (2015) 122 SASR 546
[41] (1994) 181 CLR 295.
When discussing the correct approach to a prosecution application for permission on trial without a jury, Peek J noted that where there is a ‘blemish on the written judgment of some degree of seriousness’[42] and the prosecution alleges an error of law, the nature and consequences of the error may vary greatly, and ‘the error in question may not have been causative of the acquittal in circumstances where the weakness of the prosecution case may have led to an acquittal in any event.’[43] His Honour went onto consider that circumstance in the context of the grant of permission and the principles of double jeopardy and said:[44]
[42] R v Brougham (2015) 122 SASR 546 at [66] per Peek J.
[43] R v Brougham (2015) 122 SASR 546 at [67] per Peek J.
[44] R v Brougham (2015) 122 SASR 546 at [77] per Peek J.
Thus, an order for a retrial of an acquitted person on the basis of a blemish on the judgment, in circumstances where the respondent may well have been acquitted by the trial Judge irrespective of the matter of that blemish, may be truly unjust and oppressive.
In relation to an appeal against a finding of no case to answer by a trial judge sitting without a jury, Peek J said that even if the Court of Criminal Appeal considered that there was in fact a case to answer, it would still need to consider whether permission to appeal is warranted, and whether the appeal should, nevertheless, be dismissed pursuant to the residual discretion connoted by the use of the term ‘may allow’ in the provision providing for the dispositive powers.[45]
[45] R v Brougham (2015) 122 SASR 546 at [65] per Peek J.
In R v Brougham the Court ultimately concluded that the trial Judge made no material error and therefore a prosecution appeal had no prospect of success.
The question of permission to appeal against an acquittal by a judge sitting without a jury has also been considered by this Court in the cases of R v Fleming; R v Maher,[46] R v Willingham,[47] R v Hamra,[48] R v Garner; R v Webb,[49] R v Pacitti.[50]
[46] (2017) 129 SASR 27.
[47] (2012) 112 SASR 278.
[48] (2016) 126 SASR 374.
[49] [2021] SASCA 68.
[50] [2022] SASCA 108.
The following propositions can be distilled from the authorities:
·The principles of double jeopardy apply to this Court’s consideration of the Director’s application for permission to appeal pursuant to s 157(1)(b)(i) of the CPA.[51] The question of permission to appeal against an acquittal goes beyond the merits of the instant case.[52]
[51] R v Brougham (2015) 122 SASR 546 at [5]-[6] per Peek J.
[52] R v Buttigieg (2020) 352 FLR 170 at [42] per Lovell J.
·Appellate restraint should be exercised on a prosecution appeal against an acquittal particularly where the verdict is by reason of the trial Judge’s lack of satisfaction of guilt on the facts, as distinct from an error of law. On an error of law, this Court may be more willing to grant permission and interfere with an acquittal.[53]
[53] R v Brougham (2015) 122 SASR 546 referring to Thorogood v Warren (1979) 20 SASR 156, Weinel v Rojas (unreported, Supreme Court of South Australia, SA, Olsson J, 10 June 1994), Police (SA) v Murphy (unreported, Supreme Court of South Australia, SA, Debelle J, No S5421, 9 January 1996), and Police v W, BC (2006) 160 A Crim R 278.
·Permission to appeal should not be granted in circumstances where no error of law or principle is demonstrated.[54] What is sufficient for a grant of permission does not depend on any rigid formula and will be informed by all the circumstances of the case.[55]
[54] R v Fleming; R v Maher (2017) 129 SASR 27 at [61] per Peek J.
[55] Hamra v The Queen (2017) 260 CLR 479 at [42] per Kiefel, Bell, Keane, Nettle and Edelman JJ.
·On an appeal against an acquittal, the onus rests on the prosecution to establish an error of law. That an error of law is of practical importance is a significant consideration on the question of whether to grant permission to appeal.[56]
[56] Hamra v The Queen (2017) 260 CLR 479 at [41] per Kiefel, Bell, Keane, Nettle and Edelman JJ.
·The consequences of different errors of law may vary and a grant of permission on a ‘mere blemish’ in the judgment, where an accused person may well have been acquitted by the trial Judge, irrespective of that error, may prove unjust or oppressive.[57]
[57] R v Brougham (2015) 122 SASR 546 at [77] per Peek J.
·In circumstances where an error of law is alleged, a proper basis to intervene requires that the Director has established a material error; that is, one capable of affecting the outcome. On an independent review of the record, this Court must be satisfied that there was an error of law capable of affecting the verdict, and that an acquittal was not inevitable on the materials before the trial court, irrespective of the error. It is for the respondent to establish that an acquittal was inevitable on the materials before the trial court.
·The decision to grant permission, allow the appeal and order a retrial requires this Court to consider the interests of justice and the circumstance that, as a result, the accused will face another trial.[58] The use of the term ‘may allow’ in the dispositive powers connotes a ‘residual discretion’ to grant permission to appeal but dismiss the appeal having regard to those matters.[59]
[58] R v Willingham (2012) 112 SASR 278 at [33] per Doyle CJ.
[59] R v Willingham (2012) 112 SASR 278 at [33] per Doyle CJ; R v Brougham (2015) 122 SASR 546 at [65] per Peek J.

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”
There was also evidence of a message between JM (another person alleged to have been one of the five offenders) after a telephone call between them at 7.08pm where Fleming tells JM at 7.12pm to “Go to b” (that being Bradley Danielle’s apartment.)
It was the prosecution case that Bradley Danielle, JF and Fleming formed a hostile opinion of the Devries brothers, and that the Salisbury Highway incident prompted the alleged offending the subject of the charges.
As at May 2019, Fitzgerald was a member of the Rebels, and Fleming was either an associate or nominee of the Rebels. Three other individuals allegedly involved in the offending (Corey Ayres, JF and JM) were also affiliated with the Rebels.
The home address of Bradley Danielle, at the Pulse Apartment Complex (‘the Pulse Apartments’) in Mawson Lakes, was allegedly the staging point for the offending. Police obtained CCTV footage from the Pulse Apartments that showed various members of the Rebels coming and going from the premises in the hours preceding the offending.
At the time of the offending, there were at least 40 members of the Rebels. The prosecution, however, sought to confine its case to 10 members of the Rebels, who were identified at the Pulse Apartments, prior to the commission of the offences; and alleged that the offending was committed by five of those individuals associated with the Rebels sub-group, known as the “crew”. While Fleming was a member of that group as shown in a messaging application called Signal, Fitzgerald was not.
Following the Salisbury Highway incident, the CCTV footage from the Pulse Apartments revealed Corey Ayres, JM and JF, and the respondents all attending the home address of Bradley Danielle. They were depicted in the company of each other going to and from the Pulse Apartments.
Bradley Danielle’s apartment was allegedly the departure point for two reconnaissance trips to the victims’ home prior to the offending, and the trip that resulted in the offending itself. The first reconnaissance trip occurred at around 7:17pm on 24 May 2019. The CCTV footage from the victims’ address showed a Holden Cruze travel past the premises at approximately 7:55pm. That Holden Cruze belonged to an acquaintance of Fleming, Ms Emma Tassle. The CCTV footage from the Pulse Apartments showed Fleming leaving at 7:17pm and returning at 8:46pm.
At approximately 7:40pm, other members of the Rebels, being Lachlan Cheetham and Tyson Pullino, left the Pulse Apartments and attended at Bunnings Warehouse, Parafield. Together, they purchased seven crow bars. The pair returned to the Pulse Apartments at 8:39pm.
The second reconnaissance trip occurred at approximately 9:55pm and was conducted in a white Nissan Navara utility belonging to JF. The CCTV footage depicted JF leaving the Pulse Apartments at 8:27pm and returning to the Pulse Apartments at around 10:14pm. The CCTV footage from the victims’ home showed the vehicle travelling past the premises at 9:55pm.
The vehicle used in the offending was a dark coloured Holden Astra with a faded roof previously purchased by Tyson Pullino. It was parked at Bradley Danielle’s apartment in the hours prior to the offending. It was alleged that the five offenders, being JM, JF, Corey Ayres and the respondents, drove from the Pulse Apartments toward the victims’ home in a convoy of two vehicles: the Holden Astra and the Nissan Navara utility. There was no dispute as to the identification of the three other offenders as JM, JF and Corey Ayres.
The CCTV footage showed the convoy departing the Pulse Apartments at approximately 10:20pm. The vehicles stopped at the Paralowie Plaza Shopping Centre at about 10.29pm. There, the CCTV footage revealed the driver of the Nissan Navara utility parking the vehicle and all the alleged offenders getting into the Holden Astra.
At about 10:37pm, the five offenders arrived at the victims’ home in the Holden Astra. The CCTV footage from cameras located around the victims’ home showed a male, who the prosecution asserted was Fitzgerald, exit from the front passenger seat and approach the letterbox and look at several items of mail. A metallic object was depicted passing between his hands. On the prosecution case, that item was a handgun. At about 10:39pm, the remaining four offenders are shown exiting the vehicle.
In relation to the clothing worn by the respondents, on the prosecution case, the CCTV footage depicted Fitzgerald wearing a hooded jumper with a distinctive white sash on the top left-hand corner with a ‘Michael Jordan’ logo joining the white sash; track pants with a visible motif on the right calf with zips at the ankles and a reflective line under the left pocket; shoes with a different colour sole to that of the body of the shoe and a distinctive triangular pattern on the outside; and a balaclava. The prosecution asserted that Fitzgerald was depicted in other CCTV footage from his home address at 3 Vitana Avenue, Ingle Farm wearing the same jumper when he attended there shortly after the offences were committed.
In relation to Fleming, the prosecution alleged that the CCTV footage depicted him exiting from the driver’s seat of the Holden Astra wearing a hooded jumper with a ‘Hilfiger’ motif displayed across the front; loose fitting Adidas tracksuit pants with three distinct stripes on the side of each leg; black coloured shoes; and a distinctive mask. He was alleged to be carrying a crowbar in his right hand.
In relation to the CCTV cameras operating at the victims’ home, Dr Matthew Sorrell gave evidence that they were operating in ‘night-time’ mode and therefore using infrared backlighting. He explained that in the absence of ambient light, the CCTV cameras generally recorded in grey scale under infrared illumination and, as a result, captured infrared rays as opposed to light rays. Accordingly, objects appeared to be bright under visible light but dark under infrared light, or vice versa, and the shade of colour depicted in the footage was not indicative of the shade of darkness or lightness in the natural light.
As outlined above, while the offenders were forcing their way through the laundry door, AB and Mr Devries fled the property through the front door and down the street. The offenders gave chase in the Holden Astra and, as Mr Devries entered the nearby reserve, on foot, the offenders pulled up in the vehicle next to the reserve and one of the offenders, who the prosecution alleged was Fitzgerald, discharged a firearm, twice, in the direction of Mr Devries, before the vehicle sped off.
Police located two spent 9mm Luger branded shell casings on the road and gutter next to the reserve. On the prosecution case, those casings belonged to the bullets fired during the commission of the offences. A ballistics expert, Mr Andrew Mark Plummer, gave evidence that a ‘9mm Luger’ is a trade name for a set of dimensional specifications for that cartridge, meaning other branded manufacturers may produce the same ammunition.
Following the offending, CCTV footage showed the five offenders returned to the Paralowie Shopping Centre in the Holden Astra, collected the Nissan Navara, and once again departed in a convoy of two vehicles. The Holden Astra was later abandoned at Langford Street, Pooraka. On the prosecution case, sometime after it was deposited, Fitzgerald conducted a drive-by sighting of the abandoned vehicle in his white Volkswagen Amarok Utility. The Holden Astra was subsequently found by police with its licence plates removed, the windows down and fire extinguisher powder sprayed throughout. Gunshot residue was detected in the interior of the vehicle.
At approximately 11:23pm on 24 May 2019, the respondent Fitzgerald, JM, JF, and Corey Ayres attended Fitzgerald’s home address at 3 Vitana Avenue, Ingle Farm, in the Nissan Navara. Some three days later, on 27 May 2019, the Nissan Navara was searched. A crowbar of the same make and model as those purchased from Bunnings Warehouse was seized from the rear of the vehicle.
On 14 June 2019, during a search of Fitzgerald’s home address at 3 Vitana Avenue, Ingle Farm, police located a box of Federal branded 9mm ammunition in‑between the insulation of a tin shed on his premises. Whilst a different brand to the casings found at the reserve, on the prosecution case, this evidence supported an inference that Fitzgerald had access to a firearm that used 9mm ammunition consistent with the firearm used in the offending; and that he was the person shown in the CCTV footage at the victims’ home holding a handgun.
Police searched the home of Fitzgerald’s parents and seized masks and a balaclava matching those worn by the offenders. Also located at the home address of Fitzgerald’s parents, and within his Volkswagen Amarok utility, were several pairs of gloves. Gunshot residue was detected on some of those pairs of gloves located in the vehicle and on one of the masks found within his parents’ home. Gunshot residue was also detected on a swab taken from the seatbelt buckle of the Nissan Navara and on a scraping from one of the cartridge cases seized from the Paralowie reserve. Senior Forensic Scientist, Mr Michael Cook, rejected the assertion put by defence counsel that the gunshot residue located on these items was potentially from power-activated tools.
On 27 June 2019, police attended the home address of Fleming at 15 Jeffrey Road, Muno Para West and conducted a search of the premises. Police seized a mobile phone belonging to Fleming with the Signal application installed on it. That enabled group messaging between individuals. Relevantly, within that application was a group chat called “crew” which included the respondents, as well as Andrew Martino, Shane Smith, JM and Corey Ayers.[60] The prosecution asserted that “crew” is the known name for a sub-group within the Rebels and that the offending was committed by persons associated with the “crew”, including the respondents.
[60] There was no evidence to suggest either Shane Smith or Andrew Martino were involved in the offending in any way.
At trial, a police officer, Mr Chad Brook, was shown a compilation of the CCTV footage from the Pulse Apartments.[61] He identified various persons depicted in the footage as James McCormick, JM, Bradley Danielle, JF, Corey Ayres, Tyson Pullino, Frank Xaypangna and Lachlan Cheetham. That evidence was not disputed at trial.
[61] Trial Exhibit P74.
On the prosecution case, the CCTV footage recorded at the Pulse Apartments revealed that, at the time of the offending, Bradley Danielle, Tyson Pullino, Ross Pullino, Frank Xaypangna and Lachlan Cheetham were present at Bradley Danielle’s apartment and could not have been among the five offenders who attended at the victims’ home and committed the offences. The prosecution asserted that the remaining five persons who were present at Bradley Danielle’s apartment earlier that night, including the respondents, were the offenders. We interpolate here, the respondents contended the prosecution had not excluded that there were others who may have had motive and opportunity including those associated with the broader membership of the Rebels.
There was no defence case for either respondent at trial.
The prosecution accepted at trial, and on appeal, that given the way their case was conducted against each respondent, the trial Judge had to be satisfied beyond reasonable doubt that each respondent was one of the five men who was present at the victims’ home at the time of the commission of the offences; it was not sufficient that they participated in the preparations for the offending.
At trial, the respondent, Fitzgerald, submitted that the prosecution had not established beyond reasonable doubt that he was one of the five offenders who was present at the time of the offending. He relied on the inability of the CCTV footage to reveal his identity and the absence of evidence as to:
·his DNA at the scene or on any items associated with the offending;
·text messages implicating him in the offending;
·the precise characteristics of the vehicle identified in the CCTV footage conducting a reconnaissance of the torched vehicle allegedly used in the offending; and
·fire extinguisher residue on items associated with him.
Similarly, in relation to the respondent, Fleming, it was submitted at trial, that the prosecution had not established beyond reasonable doubt that he was one of the five offenders who was present at the time of the offending. He relied on the inability of the CCTV footage to reveal his identity and the absence of evidence as to:
·his presence at Fiztgerald’s home after the offending or any incriminatory post offence conduct;
·being in possession of any of the clothing worn by the offenders at the scene;
·DNA linking him to the scene of the crime; and
·text messages linking him to the offending.
Trial Judge’s findings
The trial Judge commenced by setting out the legal elements of the offences and standard directions as to the onus and standard of proof. The trial Judge then outlined his legal directions as to circumstantial evidence and the drawing of inferences. His Honour said:
The evidence against the defendants is entirely circumstantial evidence as there is no direct evidence of anyone having seen them present and committing either offence.
There is no particular standard of proof that applies to items of circumstantial evidence and I am permitted to act on items of circumstantial evidence if I accept the evidence without needing to decide whether those matters are proved beyond reasonable doubt, so long as, at the end of the day, guilt is proved beyond reasonable doubt.
I am also entitled to draw logical inferences from the evidence without needing to apply the standard of proof beyond reasonable doubt in relation to these inferences as long as they are not indispensable intermediate inferences for a conviction.
If any evidence involves an intermediate fact as an indispensable basis for an inference of guilt, that is a fact which is essential to a conviction then I cannot act on that fact unless it is proved beyond reasonable doubt (Shephard v The Queen).
I direct myself that since the case is based wholly on circumstantial evidence, guilt must not only be a rational inference but must be the only rational inference from the circumstances proved and I cannot be satisfied of guilt unless I can exclude beyond reasonable doubt any hypothesis with innocence.
(citations omitted)
The trial Judge noted that the prosecution case was that five offenders including the respondents together committed the charged offences. His Honour said:
It is the prosecution case that the two defendants were criminally involved in the crimes by their direct presence and involvement. Somewhat surprisingly the prosecution eschews any reliance on criminal complicity other than by presence and participation at the crime scene.
(citations omitted)
The trial Judge then proceeded to summarise the case against each respondent in similar, but abbreviated terms, to above before turning to consider the ‘crux of the prosecution case.’ His Honour noted that the prosecution alleged that the respondents were among the five persons who alighted from the vehicle, and that Fitzgerald got out of the front passenger’s seat and Fleming from the driver’s seat of the vehicle. In relation to an absence of direct evidence to establish that each respondent was present at the victims’ home, and at the reserve when the firearm was discharged, his Honour said:
It is difficult to identify any particular person who alighted from the vehicle as all persons were wearing masks or a balaclava and in order to identify the perpetrators, the prosecution seek to rely on circumstantial evidence.
There is no doubt that the offences were committed by those alighting from the vehicle.
Because none of the attackers can be identified by direct evidence alighting from the Holden Astra to commence the attack, in order to identify them the police rely on the identification of the two defendants and the three others by photos taken on their arrest by a police officer who knows them and hence, is able to recognise them and by comparison with photos taken of the defendants, a task I am required to perform without expertise or use of scientific equipment to enhance photographic images apart from a magnifying glass.
A significant difficulty is that the video of the attack is in black and white making any comparison of clothing between individuals and the video footage of those individuals in other circumstances are somewhat difficult.
After making those remarks, the trial Judge set out the circumstantial evidence tending to prove each respondent’s involvement in the offending (that is, the circumstantial evidence that existed outside of the CCTV footage of the victims’ home). Under the heading ‘Circumstantial evidence involving Fitzgerald in the offending in respect of which I am satisfied on the balance of probabilities’, his Honour made the following findings:
·He was involved with the Rebels Motorcycle Club.
·Shortly after the altercation with the Devries brothers, he attended with others at Pulse Apartments.
·Fitzgerald can be seen (in the CCTV footage from Pulse Apartments) wearing a white jumper with black or dark blue and red sleeves. A similar jumper was seized from the laundry of his premises. He was also wearing a navy-blue hat with the logo NY in white text. The hat is similar in appearance to the one seized from Fitzgerald’s home address. That consistent clothing and comparison with his arrest photos meant that it was probably Fitzgerald.
·Masks similar to those worn by the offenders were located at the home of Fitzgerald’s parents.
·Fitzgerald had at his premises similar calibre ammunition to the ammunition used in the offending.
·The Nissan Navara that was used in the convoy to the victims’ home then returned to the home address of Fitzgerald at 3 Vitana Avenue, Ingle Farm after the offending.
·The Nissan Navara contained firearm residue.
·At 1.40am, a white utility, possibly the Volkswagen Amarok utility owned by Fitzgerald, drove into the street where the Holden Astra that was used to drive to the crime scene was abandoned.
·The male who alighted from the front passenger side at the scene of the crime was wearing a balaclava. A similar balaclava was located at the home of Fitzgerald’s parents.
·One of the offenders at the crime scene was a wearing a black hooded unusual jumper with a white or light sash. Fitzgerald was wearing a similar jumper at his home four days earlier.
·Following the offending, a male wearing a somewhat similar jumper with a white sash is seen at Fitzgerald’s home at 3 Vitana Avenue, Ingle Farm at 11.23pm.
·The same offender was also wearing dark coloured sneakers with a white midsole. Fitzgerald was wearing a similar looking pair of shoes four hours earlier at the Pulse Apartments.
·Gloves were located at the home of Fitzgerald’s parents and within his Volkswagen Amarok utility which are consistent with the gloves used by the offenders.
·Gunshot residue was detected on some of the gloves in the home and in the vehicle.

Similarly, under the heading ‘Circumstantial evidence involving Fleming in the offending in respect of which I am satisfied on the balance of probabilities’, the trial Judge made the following findings:
·He was involved with the Rebels Motorcycle Club.
·He was involved in a text message exchange in which he agreed with the description of Devries as a “fucking dog”, thus providing a motive for the offending.
·The phone with the message was recovered at the search of his premises. There was a subsequent text message exchange with JM in which Fleming said “Go to b”, an inferred request or order to go to the premises of Bradley Danielle.
·Shortly following the altercation, intermittently Fleming and others attended the Pulse Apartments where it may be inferred, the arrangements for the attack were made.
·Fleming can be identified on the balance of probabilities by a comparison with his arrest photos.
·A reconnaissance trip past the home of the victims was conducted in a vehicle with a missing right rear wheel embellishment. An associate of Fleming, Ms Tassle, owns a similar vehicle with a consistent missing right rear wheel embellishment. The vehicle of Ms Tassle is a Holden Cruze.
·One can infer that the first reconnaissance trip was done in the Holden Cruze of Ms Tassle due to the coincidence that the vehicle used for the reconnaissance trip had the same type of wheel embellishment and the same missing right rear wheel embellishment as the car of Ms Tassle. The evidence of the association between Ms Tassle and Fleming is that Ms Tassle arrived during the search of Fleming’s premises and stayed with the other occupant, Kayla Brown.
·One can further infer it was a reconnaissance drive as the occupants of the vehicle appeared to concentrate on the address of the victims, pulling into the next-door neighbour’s driveway and then down the cul-de-sac. There seemed to be no other purpose to drive past the victims’ home.
The trial Judge then proceeded to consider whether the prosecution had proved its case against each respondent.
Under the heading ‘Difficulty in establishing the involvement of Fitzgerald and Fleming in the attack’, the trial Judge referred to the circumstantial evidence which demonstrated the involvement of the respondents in the arrangements to attack the victims by ‘their presence at the Pulse Apartments during the relevant time frame and by providing assistance to those present in the attack.’ His Honour noted that the prosecution ‘do not pitch their case on the basis of criminal complicity other than by presence at the scene of the crime. All such circumstantial evidence must be established beyond reasonable doubt.’ That is, the prosecution needed to prove beyond reasonable doubt that the respondents were present at the crime scene at the time of the commission of the offences. His Honour then noted that given the way the prosecution put its case, it faced an inherent difficulty as ‘the only evidence of the defendants actually being present at the crime is the video footage which is black and white and extremely poor quality’ and it is not only the respondents who ‘had a motive and participated in the preparations for an attack.’ For that reason, his Honour considered the evidence that tended to suggest the respondents had a motive and had assisted in the preparations for the attack did not necessarily mean that they were present for the attack.
The trial Judge then turned to consider the evidence of the respondents’ presence at the scene and confined his analysis to the CCTV footage. In doing so, his Honour undertook a comparison between the CCTV footage recorded at the victims’ home on the night of the offending, and other evidence that captured the respondents’ clothing both prior to, and after, the offending.
In relation to Fitzgerald, his Honour said:
Poor quality black and white footage shows a person getting out of the front passenger seat of the Holden Astra to commence an attack on the victims.
Can I say beyond reasonable doubt that this person getting out of the front passenger seat is the defendant Fitzgerald? I cannot identify him from the video and I cannot see his face.
He appears to be wearing a jumper with a hood with a balaclava and sneakers with white mid-soles.
The prosecution say it is relevant that he is seen wearing sneakers with white mid-soles earlier that night at the Pulse Apartments and that a black balaclava was found at his parent’s place subsequently when the police searched it.
The jumper this attacker is wearing appears to have a lighter, or white coloured sash coming down from the left shoulder similar to a sash worn on the Glenelg or Richmond Football Club uniforms but shortened considerably and not running to the lower opposite side of the chest.
The prosecution assert that the same jumper is worn by the defendant in CCTV footage taken at Fitzgerald’s premises some four days earlier to the offending.
That footage is very much clearer and in colour. I am satisfied it shows Fitzgerald and that the jumper being worn then is black, the sash is white and there is a red motif in the middle of the chest. No expert evidence was led as to the probable range of colours that the black and white footage of the attackers at the scene may indicate.
In the footage at the crime scene I cannot identify any colours of the jumper being worn or whether there is a motif in the middle of the chest, red or otherwise. But I can identify the light, or white coloured, sash.
After the offending a white Navara ute returned to Fitzgerald’s premises with probably some of the offenders in it.
One of them, the prosecution assert was Fitzgerald still wearing the same jumper as at the crime scene.
I cannot be satisfied of what this person was wearing or even identify beyond reasonable doubt this person as Fitzgerald as the video quality is too poor.
I can just make out on one of the persons standing at the back of the vehicle a jumper with a light coloured sash but I cannot make out any red motif in the middle of the chest.
The prosecution case is that Fitzgerald was wearing a jumper at his home four days earlier, and was still wearing it after the offences when he came with others in the Navara back to his home after the offending. The person wearing it at the scene of the crime must therefore be Fitzgerald. But I can’t be satisfied that the person in the Navara that went to Fitzgerald’s house after the offending was Fitzgerald let alone that he was wearing the same jumper worn by the person alighting from the front passenger seat.
I note that the jumper appears to have draw strings to tighten the hood. The draw strings of the jumper of the person standing behind the vehicle at Fitzgerald’s premises appears to be a lighter colour than the jumper. The jumper being worn at the scene of the crime appears to have draw strings of a lighter colour than the jumper itself. The jumper worn four days earlier appears to have draw strings the same colour as the jumper.
Does there remain any hypothesis reasonably open consistent with innocence?
One hypothesis is that the jumper that Fitzgerald was wearing four days earlier was not the same jumper as the offender was wearing at the scene. I cannot say the colour was the same or that the jumpers both had a central motif, red, coloured or otherwise. Is it possible they were different jumpers?
Another hypothesis is that a different person to Fitzgerald wore the same jumper at the scene that had been worn by Fitzgerald four days earlier. The assumption that it was the same person is not a safe basis for a conviction.
Another hypothesis is that there were two similar jumpers, one worn by Fitzgerald four days earlier and the other by the offender at the scene.
Based on those observations, his Honour concluded that he could not be satisfied beyond reasonable doubt that: the jumper worn by the front passenger was the same jumper as worn by Fitzgerald at his home four days prior; and the person who was shown standing next to the Nissan Navara utility at Fitzgerald’s home, shortly after the offending, was wearing the same jumper as the person at the crime scene or that he was wearing the same jumper as worn by Fitzgerald four days earlier. Thus, he was not satisfied, on the basis of a comparison with the clothing shown in the CCTV footage from the victims’ home with other clothing worn by Fitzgerald, or associated with Fitzgerald, that Fitzgerald was the offender who exited the front passenger seat of the vehicle at the crime scene.
The trial Judge concluded that he could not be satisfied beyond reasonable doubt of Fitzgerald’s guilt and said: ‘The other circumstantial evidence against Fitzgerald is evidence as to his involvement but not as to his presence at the crime.’
In relation to Fleming, the trial Judge noted that it was the prosecution case that he was the person shown in the CCTV footage at the victims’ home exiting the driver’s seat of the Holden Astra based on the fact that he was wearing a jumper with the word ‘Hilfiger’ emblazoned across the front, which he had worn earlier in the evening at the Pulse Apartments as shown in the CCTV footage. In relation to this submission, his Honour said:
I cannot be satisfied that this person was Fleming by comparing this video with the arrest photographs of Fleming because I cannot see his face.
…
I can make out some of the shapes on the jumper but not sufficient to be able to say that the wording emblazoned on the front of the jumper of the person getting out of the driver’s seat was “Hilfiger” beyond reasonable doubt. Because the video footage is in black and white, I have no indication as to the colour of the jumper.
This evidence would only be helpful to convict if I could be satisfied beyond reasonable doubt that the person in earlier CCTV footage leaving the Pulse Apartments and wearing a jumper with the wording “Hilfiger” emblazoned across it was the accused Fleming as asserted by the prosecution. This person has a hood and probably a grey jumper with the word ‘Hilfiger’. This is probably Fleming but I can’t say beyond reasonable doubt it is Fleming.
His Honour concluded that based on a comparison between the CCTV footage and the arrest photograph, he could not be satisfied beyond reasonable doubt: the person seen in the CCTV footage exiting the driver’s seat of the Holden Astra was Fleming; the person leaving the Pulse Apartments with a jumper emblazoned with the word ‘Hilfiger’ was Fleming; and the person exiting the driver’s seat of the vehicle at the victims’ home was wearing a jumper with ‘Hilfiger’ on it. Thus, his Honour considered that he could not be satisfied that the person who exited the driver’s seat wearing a jumper was Fleming, even if he was satisfied that the jumper had ‘Hilfiger’ on it.
His Honour concluded that he was not satisfied beyond reasonable doubt that Fleming was one of the offenders present at the crime scene. He said: ‘Other circumstantial evidence helps prove his involvement in the crime but not his presence at the scene of the crimes.’[62]
[62] Emphasis added.
Accordingly, his Honour acquitted the respondents of the charged offences.
Appeal grounds
As discussed above, the three grounds of appeal are interrelated. The standalone Grounds 1 and 3, relating to circumstantial evidence and inadequate reasons are each, separately, informed by Ground 2. Accordingly, we will start with Ground 3 of those standalone grounds upon which the Director placed the most emphasis during the appeal hearing.
Ground 3 – circumstantial reasoning
The Director complains that the trial Judge stated but failed to properly apply the relevant principles relating to circumstantial evidence.
It is well established that where a case is premised entirely on circumstantial evidence, the trier of fact is required to consider the whole of the evidence in assessing whether the prosecution have proven the charges beyond reasonable doubt. As stated by Dawson J in Shepherd v The Queen:[63]
[63] (1990) 170 CLR 573 at 579-580 per Dawson J.
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite 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, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
The prosecution also relied on the remarks of Gummow, Hayne and Crennan JJ in R v Hillier:[64]
[64] (2007) 228 CLR 618 at [46] per Gummow, Hayne and Crennan JJ.
It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
(citations omitted)
The Director contended that whilst the trial Judge referred to the correct principles relating to circumstantial evidence, he failed to properly apply those principles or engage with the circumstantial case, as put at trial. The Director submitted that the trial Judge, in his reasons, appeared to artificially divorce the evidence that established each respondent’s involvement in the offending from his consideration as to whether each respondent was present at the scene. While the Director accepted that the prosecution was required to establish the respondents’ presence at the scene, in proof of the charges, he submitted that finding 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.
Both respondents contended that there was no error in the trial Judge’s approach to the circumstantial evidence. They submitted that his Honour’s approach to circumstantial evidence was orthodox and emphasised that it was not submitted on appeal that the verdicts of not guilty were unreasonable or not open on the evidence.
When considering the trial Judge’s reasons for verdict, it is evident that his Honour first analysed the evidence led in support of the respondents’ involvement in the preparations for the attack; and that he was satisfied on the circumstantial evidence, outside of the CCTV footage of the respondent’s involvement in the offending.
The trial Judge then considered, under a separate heading, the evidence of the respondents’ presence at the crime scene. In doing so, his Honour only analysed the CCTV footage taken from the victims’ home and only referred to some of the other circumstantial evidence to the extent necessary in undertaking a comparison of items of clothing worn by the offenders with other items of clothing either allegedly worn by, or associated with, Fitzgerald or Fleming. His Honour’s reasons for verdict revealed that he, in effect, isolated and confined his consideration of whether the prosecution had proved the respondents’ presence at the victims’ home to an analysis of the CCTV footage, separate and uninformed, by the whole of the evidence.
The evidence of the respondents’ motives (in particular, their membership with the Rebels and the obligations that association entailed), and their involvement with the preparations for the attack, was of significance in determining whether the prosecution had proved each respondent was one of the five offenders present at the crime scene. This is particularly so, in the circumstances of this case, where the evidence of the respondents’ attendance at the staging house for the attack occurred very shortly after the Salisbury Highway incident (the alleged motive for the attack) and only several hours before the commission of the offences.
The evidence that each respondent was in the company of other persons associated with Bradley Danielle, and the Rebels, was also of considerable importance. There were 10 persons associated with the Rebels at the Pulse Apartments prior to the attack depicted in the CCTV footage. There was evidence that at the time of the commission of the offences, five of those 10 persons could not have been one of the offenders. The five remaining persons, including the two respondents, were alleged to have been the five offenders present at the victims’ home. Whilst the trial Judge found that it was not only Fitzgerald and Fleming who participated in the preparations for the attack, or had a motive to commit the attack, there was no consideration given to the body of circumstantial evidence which supported the submission that, by way of a process of elimination, each respondent was one of the five offenders present at the scene.
In relation to Fitzgerald, there was also no analysis by the trial Judge of other significant aspects of the circumstantial case which were not only relevant to his involvement in the preparations for the attack, but also relevant in proof of his presence at the crime scene including: the masks, gloves and a balaclava similar to those worn by the offenders located at his parents’ home; that those items located at his parents’ home contained gunshot residue; that ammunition of the same calibre was subsequently located at his home (bearing in mind that the Nissan Navara used in the convoy shortly before the commission of the offences was shown by CCTV to have attended at his home very shortly after the offending). Nor did the trial Judge take into consideration the evidence that a vehicle of a similar description to Fitzgerald’s Volkswagen Amarok utility was captured surveying the torched Holden Astra used in the commission of the offences. Those were all pieces of circumstantial evidence which, together with the CCTV footage from the victims’ home, were highly probative of Fitzgerald’s presence at the scene.
In relation to Fleming, similarly there was no analysis by the trial Judge of other aspects of the circumstantial case which was not only relevant to his involvement in the preparations for the attack, but also relevant in proof of his presence at the crime scene including: his motive as an associate or nominee of the Rebels and that he had been discussing the victim of the offending a few hours earlier in a text message chain; and the evidence of an initial reconnaissance trip conducted in a Holden Cruze associated with him.

The trial Judge’s conclusory statement regarding each respondent that the circumstantial evidence (other than the CCTV footage from the victims’ home) is evidence as to his involvement in the offending, but not as to his presence at the crime scene, reflected his Honour’s erroneous approach to circumstantial evidence in this case. Whilst it was right for the trial Judge to emphasise that involvement did not equate to presence, his Honour’s reasons suggested that he put the evidence of involvement to one side when considering presence, whereas that evidence remained relevant in a circumstantial way in proof of presence. When turning to consider whether the prosecution had established the respondents’ presence at the crime scene, his Honour limited his analysis to a comparison of the CCTV footage with the clothing worn by, or associated with, each respondent. His Honour did not refer to, nor consider, the whole of the circumstantial evidence when determining this issue.
While it was not necessary for the trial Judge to laboriously repeat in detail each piece of circumstantial evidence relied upon, and already discussed in relation to the respondents’ involvement with the preparations for the attack, the absence of any analysis as to its significance in relation to proof of each respondent’s presence at the crime scene, suggested that it had been put to one side and not taken into account at all. The evidence which evinced the respondents’ involvement in the preparations for the attack was clearly relevant and highly probative of the question of their presence at the crime scene as part of the broader circumstantial case put by the prosecution on that issue.
This was not a case where the trial Judge reached his conclusion on the issue in dispute after having considered all of the circumstantial evidence, and notwithstanding the strength of the prosecution case, determined that whilst he was satisfied each respondent had a motive to commit the offences, was involved in the preparation of the attack, and, at least in relation to Fitzgerald, was involved in post offence conduct in storing some of the items associated with the attack, he could not be satisfied beyond reasonable doubt that they were present at the scene given the absence of direct evidence by way of clearer CCTV footage from the victims’ home, or other forensic evidence directly linking them to the crime scene. Rather, his Honour in his reasons expressly isolated his consideration of the other evidence he found supported a finding that they were involved in the preparation of the attack when considering whether the prosecution had established their presence at the scene. In doing so, his Honour failed to properly apply the principles relating to circumstantial evidence.
For those reasons, we consider that the Director has made out this ground of appeal.
Ground 1 – adequacy of reasons
Aligned with Ground 3, but alleged as a separate ground of appeal, the Director complains that the trial Judge’s reasons for his verdicts were inadequate. It is contended that the trial Judge inadequately formulated the issues for decision and that it is not possible to discern how the trial Judge rationally arrived at his conclusion as to the ultimate issue resulting in the respondents’ acquittals.
The principles in relation to the requirement for adequate reasons following a trial without a jury are well-established and have been repeatedly considered and applied by this Court.[65]
[65] JGS v The Queen [2020] SASCFC 48; NBM v The Queen [2021] SASCA 105; Trussell v The King [2023] SASCA 5; Norris v The King [2023] SASCA 24.
In the absence of an express statutory provision, a judge returning a verdict following a trial without a jury is ‘obliged to give reasons sufficient to identify the principles of law applied by the Judge and the main factual findings on which the Judge relied’.[66] This obligation is necessitated by the need for adequate reasons in order for this Court to discharge its statutory duty on an appeal and, furthermore, for the parties to understand the basis for the trial Judge’s decision for purposes including the exercise of any rights to appeal.[67]
[66] Douglass v The Queen (2012) 86 ALJR 1086 at [8] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[67] DL v R (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ.
Indeed, in R v Keyte,[68] Doyle CJ noted that a failure to give reasons would have the capacity to stultify an appeal against an acquittal.[69]
[68] (2000) 78 SASR 68.
[69] R v Keyte (2000) 78 SASR 68 at [40] per Doyle CJ.
Generally, reasons will be inadequate if a trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.[70]
[70] DL v R (2018) 266 CLR 1 at [33] per Kiefel CJ, Keane and Edelman JJ; see also AK v Western Australia (2008) 232 CLR 438.
In DL v The Queen[71] (‘DL’) the majority said:[72]
[71] (2018) 266 CLR 1.
[72] DL v The Queen (2018) 266 CLR 1 at [33] per Kiefel CJ, Keane and Edelman JJ.
… [T]he adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."
(citations omitted)
The Director’s submissions ultimately devolved to a complaint that it is not possible to discern from the trial Judge’s reasons how he rationally arrived at the determinative conclusions that he did.
In response, the respondents contended that the reasons provided by the trial Judge need only be ‘fit for purpose’ and not an exemplar of judicial explication. They relied on Peek J’s comments in R v Brougham:[73]
[73] (2015) 122 SASR 546 at [69]-[71] per Peek J.
It must be constantly borne in mind that there is a major difference between the position of the Crown and the accused in a criminal trial which derives from the presumption of innocence; a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt but no such requirement applies to an acquittal which can rest simply on the absence of proof.
Put another way, in a trial by Judge alone, there is a substantial difference between the path that must be taken to a conviction and that which may be taken to an acquittal. The path taken to a conviction must clearly lay out the steps the Judge has taken so as to show that the Judge’s reasoning has the requisite strength and cohesion to support proof of each such element beyond reasonable doubt. However, in many cases, the path taken to an acquittal may be very shortly explained by reference to the fact that the prosecution have simply failed to produce the requisite state of satisfaction in the mind of the Judge.
The onus of proof is on the prosecution to produce satisfaction in the mind of the Judge and the Judge will be entitled not to be so satisfied even though a substantial amount of apparently strong evidence has been tendered by the prosecution.
(citations omitted)
The respondents submitted that the trial Judge explained in short but clear terms his rationale for ultimately not being satisfied beyond reasonable doubt that each offender was present at the crime scene and participated in the attack.
In the present case, the trial Judge’s reasons for verdicts were relatively brief, bearing in mind that the trial lasted several weeks, and both parties provided extensive written and oral submissions. As set out above, the trial Judge in his reasons for verdicts outlined: the legal elements of the charged offences; the standard directions in respect of the onus and burden of proof; that no adverse inference was to be drawn from each respondent’s decision not to give evidence; and the principles applicable to circumstantial evidence and the drawing of inferences.
His Honour then identified the crux of the prosecution case and made various factual findings in relation to each respondent. There was no analysis of how he arrived at those findings, although we note the Director accepted those factual findings were open and appropriate on the evidence.
The gravamen of the Director’s complaint is that the trial Judge failed to explain how his factual findings, and the broader evidence underpinning those findings, affected his assessment of whether the prosecution had proved each respondent was one of the offenders present at the crime scene; that is, each respondent’s identity as one of the offenders.
We do not agree with that contention.
The trial Judge did in fact explain the basis upon which he was not satisfied that each respondent was one of the offenders at the crime scene and therefore not guilty of the offence. However, in reasoning in the manner he did, the trial Judge did not properly apply the principles attending circumstantial evidence. For the reasons articulated in relation to Ground 3, the trial Judge did not properly consider the whole of the evidence in determining whether each respondent was present at the crime scene; he artificially divorced the evidence relating to each respondent’s involvement in the preparations for the attack from the issue of his identity as one of the offenders. The trial Judge’s reasons were not inadequate in the sense discussed by the authorities; rather they exposed his erroneous reasoning in that regard.
We dismiss Ground 1.
Ground 2 – proper, genuine and realistic consideration
The Director complains that the trial Judge failed to give ‘proper, genuine and realistic consideration’ to whether the prosecution had discharged the onus and standard of proof beyond reasonable doubt of the charged offences. It is to be noted that this language is derived from statements of principle applicable to judicial review challenges in an administrative law context.[74] The Director submitted that those principles were able to be drawn upon by this Court.
[74] See, for example Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
The obligation to give reasons is a fundamental aspect of the judicial function.[75] It is difficult to see how the complaint, as cast by the appellant, is not subsumed by the complaint of inadequate reasons. In Soulemezis v Dudley (Holdings) Pty Ltd,[76] McHugh JA observed that one purpose of the obligation to give reasons is to enable the parties to know the extent to which their arguments have been understood and accepted. [77]
[75] AK v Western Australia (2008) 232 CLR 438; Wainohu v New South Wales (2011) 243 CLR 181; See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh J.
[76] (1987) 10 NSWLR 247.
[77] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 per McHugh J.
In the present matter, his Honour did not provide inadequate reasons; rather he erred in his application of the principles relating to circumstantial evidence in determining the ultimate question of whether the prosecution had proved their case against each respondent. This was not a matter where there was any basis or material to establish that the trial Judge failed to exercise his jurisdiction by not giving ‘proper, genuine and realistic consideration’ to whether the prosecution had proved the charged offences. Rather, he made an error of law in his approach to circumstantial evidence. In those circumstances, this complaint does not properly arise.
We dismiss this ground of appeal.
Permission to appeal
In accordance with the principles discussed earlier, upon finding that the trial Judge made errors of law, this Court must deal with the question of permission to appeal before determining whether to allow the appeal and order a retrial.
Permission to appeal should not be granted in circumstances where no error of law or principle is demonstrated or where the error of law could not have materially affected the verdicts.
The trial Judge’s erroneous approach to the circumstantial evidence against each respondent was inherently capable of affecting the verdict. Indeed, that evidence went to the strength and core of the prosecution case. This was not a matter where the error of law was a ‘mere blemish’ in the reasons for verdict, and where the respondents may well have been acquitted by the trial Judge, irrespective of that error. The trial Judge’s erroneous approach to the circumstantial evidence stripped the prosecution case of its force. On an independent review of the record, this was not a matter where an acquittal in relation to either respondent was inevitable. Properly considered, the prosecution case against each respondent was strong.
The decision as to whether to grant permission requires this Court to consider the interests of justice and the circumstance that, as a result, each respondent will face another trial and again be subject to power of the State in relation to the same matter. These are important considerations. It is also necessary to consider whether it would suffice for this Court to simply explain the errors of law made by the trial Judge without interfering with the verdicts. It is also to be borne in mind that the alleged offending occurred in 2019 and, since the acquittals, the respondents have remained in the community.
Against that, the alleged offending was of the utmost seriousness, and the errors of law were significant in that the trial Judge did not properly consider the whole of the circumstantial evidence in determining whether the prosecution had proved its case. Notwithstanding the principles of double jeopardy, we are satisfied that reasons of public policy and the interests of justice require that permission be granted, and the appeal be allowed.
Orders in relation to both respondents:
1.Permission to appeal is granted and the appeal is allowed.
2.The verdict of acquittal is set aside, and the matter is remitted to the District Court for a retrial.
3.The respondents are required to attend at the District Court on 21 April 2023 at 9.00am for arraignment.