R v Forrest

Case [2016] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FORREST

[2016] SASCFC 76

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Lovell)

28 July 2016

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - CHARACTER OF WITNESS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - AVAILABILITY AT TRIAL - EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

Appeal against conviction. The appellant was charged with 13 offences committed during the course of three violent home invasions in June 2013. On the morning of trial the appellant pleaded guilty to the offences of Aggravated Serious Criminal Trespass in a Place of Residence and Aggravated Robbery (but not the aggravating factors of using a firearm in the commission of those offences) which related to the second home invasion (Valley View). The appellant proceeded with a trial by jury on the remaining charges relating to the first (Ottoway) and third (Woodville Gardens) home invasions. He was convicted on 9 counts. The key issue at trial was the identity of the appellant as one of the offenders involved in the home invasions.

During the course of the trial two witnesses were called by the prosecution. No information about those two witnesses’ previous criminal offending were disclosed, however it transpired that before the commencement of the trial the South Australian Police had in its possession information which called into question the credibility and character of both witnesses.

The appellant claims that subsequent to his convictions he had a conversation with a fellow prisoner, Angus Hume, who was a witness to the Woodville Gardens Home Invasion and did not see the appellant during the offending. Angus Hume did not give evidence at trial. The appellant, Angus Hume and others present during the Woodville Gardens Home Invasion, some of whom had testified at trial, gave evidence at the hearing of the appeal.

The appellant appeals on a number of grounds. Broadly, they are: that the learned trial Judge erred in the directions given to the jury regarding the way evidence of the appellant’s discreditable conduct and evidence relating to the offences to which the appellant pleaded guilty could and could not be used; that there was a miscarriage of justice as a result of the prosecution failing to disclose information relating to two witnesses; and the Woodville Gardens Home Invasion convictions involved a miscarriage of justice in light of the evidence of Angus Hume.

Whether the trial Judge erred by failing to direct the jury that the evidence relating to the…

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R v Forrest [2016] SASCFC 76
Case
[2016] SASCFC 76
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions arising from three home invasions. The appellant was convicted of multiple offences, including aggravated serious criminal trespass, aggravated endangering life, aggravated robbery, aggravated causing serious harm with intent to cause serious harm, and false imprisonment. The primary dispute on appeal related to fresh evidence concerning the Woodville Gardens home invasion, which the appellant argued created a significant possibility of acquittal had it been presented at trial.

The legal issues before the court included whether the convictions relating to the Woodville Gardens offending involved a miscarriage of justice due to the non-disclosure or late availability of evidence from Mr Angus Hume. The court was required to determine if this fresh evidence was material and cogent enough to warrant a new trial, considering whether the jury, acting reasonably, might have acquitted the appellant had this evidence been available. The court also considered the evidence of Mr Wilson, whose testimony was not strongly exculpatory but provided a further reason not to apply the proviso to the grounds on which the appellant had shown error.

The court allowed the appeal, finding that the convictions relating to the Woodville Gardens offending involved a miscarriage of justice due to the fresh evidence of Mr Hume. Mr Hume, who was in prison with the appellant after his conviction, claimed to have been present during the Woodville Gardens home invasion and stated that he saw only two offenders, neither of whom was the appellant. The court considered this evidence, along with Mr Wilson's testimony, and concluded that there was a significant possibility of acquittal had this evidence been presented at trial.

Consequently, the court ordered that the appeal be allowed, the convictions for the Woodville Gardens offences be set aside, and the matter be remitted for retrial.

Orders

Orders of the court

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Background

Background to the litigation

My reasons follow.Background The charges against the appellant arose out of three home invasions on three separate houses: two on 8 June 2013 and one on 11 June 2013. It is necessary to outline the circumstances of each of the sets of offending in some detail.The Ottoway Home Invasion: counts 1 to 7 On 8 June 2013, Mr Kari Sohkanen was at his home in Ottoway with his friend, Mr Roy Muttock, who was staying with him. Mr Sohkanen’s daughter and her boyfriend, Jason, had been at the house earlier that night. Mr Sohkanen was leaving his home at about 3.00 am when a male jumped down from the carport roof armed with a pistol. On the prosecution case, this man was the appellant. Two other males also appeared. The appellant said that they were looking for ‘Jason’. Mr Sohkanen was hit on the head with the pistol, and ordered to empty the contents of his pockets. Mr Sohkanen handed over the keys to his Pajero, a wedding ring, necklace, the remote control for the gates and his wallet. His wallet contained his driver’s licence. Mr Muttock came outside and was also assaulted by the appellant. Mr Sohkanen and Mr Muttock were taken back inside the house and Mr Sohkanen was struck on the back of his head with an instrument before the appellant fired the pistol at or near Mr Sohkanen, who fell to the ground before being grabbed and again thrown to the floor. Mr Muttock was hit with the pistol on more than one occasion. The appellant asked Mr Muttock ‘Where are the drugs?’, to which he responded that he did not know. The appellant struck Mr Muttock with the pistol on the side of his face, causing loss of vision in his eye. The appellant then shot Mr Sohkanen at close range, and one of the other two males jumped on Mr Sohkanen where he was lying on the floor. Mr Muttock’s face was deliberately burned with the pistol after it was discharged. Mr Muttock was taken to the Pajero outside the property and the appellant told him to get in. The appellant and the two other men also sat inside the Pajero. At that time the appellant was armed with the pistol and the two other men were armed with knives. Mr Muttock was threatened, including by having a knife put to his throat, but he convinced the men that he did not know ‘Jason’. He was released from the car at the suburb of Gillman at about 3.40 am. The three men took the Pajero. Mr Sohkanen described the armed man as a head taller than him, with a stocky build and very fair facial features and no facial hair. He thought the armed man was wearing a hooded jumper, jeans and sandshoes. During a photo pack ID procedure in February 2014, Mr Sohkanen identified the appellant as the male who jumped from the carport with the pistol, and said he was ‘87% sure’ of his identification. Mr Muttock described the pistol as a 9mm Luger. Mr Sohkanen described the pistol as having a sliding motion and appearing to be old. The jury convicted the appellant of the following offences committed in the course of the Ottoway home invasion:·Aggravated Serious Criminal Trespass in a Place of Residence,[1] with the aggravating circumstances of use of a firearm and being in company with others (Count 1), for the trespass into Mr Sohkanen’s residence;·Aggravated Endangering Life,[2] with the aggravating circumstances of use of a firearm and being in company with others (Count 3) (this was an alternative charge to the offence of Attempted Murder, of which the jury found the appellant not guilty), for discharging a firearm at close range at Mr Sohkanen;·Aggravated Robbery,[3] with the aggravating circumstances of the use of a firearm and being in company with others (Count 4), for stealing the Pajero keys, wallet and other possessions from Mr Sohkanen;·Aggravated Causing Serious Harm with Intent to Cause Serious Harm,[4] with the aggravating circumstances of use of a firearm and being in company with others (Count 5), for violence against Mr Muttock;·Aggravated Robbery,[5] with the aggravating circumstances of use of a firearm and being in company with others (Count 6), for stealing a wallet and mobile telephone from Mr Muttock; and·False Imprisonment[6] (Count 7), for detaining Mr Muttock in the Pajero.The Valley View Home Invasion: counts 8 and 9[1] Contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA).[2] Contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA).[3] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).[4] Contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).[5] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).[6] Contrary to the common law offence.

Evidence

Evidence Before The Court

The appeal must be allowed on this ground.Ground 6 – significant possibility of acquittal had the evidence of Mr Hume been tendered at trial The appellant’s last ground of appeal is that his convictions relating to the Woodville Gardens offending involved a miscarriage of justice in light of the evidence of Mr Angus Hume. Mr Hume did not give evidence at trial and the appellant contends that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant on Counts 10, 11 and 13 had his evidence been adduced at trial. Evidence on appeal The appellant, Mr Hume, and others present during the Woodville Gardens home invasion, some of whom had testified at trial, gave evidence at the hearing of this appeal. The appellant gave evidence that he met Mr Hume 10 or 12 years ago when they were both in gaol in South Australia. The appellant saw him again in January 2015 in Yatala Labour Prison after he was convicted for the offending before the Court. Mr Hume was in the appellant’s cell and asked the appellant if he had been convicted of the shooting at Woodville Gardens. When the appellant replied that he had been found guilty, Mr Hume informed him that he was Mr Wilson’s cousin and that he was there that night. The appellant expressed some anger that Mr Wilson had changed his statement a week before the trial to say that he had seen three offenders outside the Woodville Gardens house, when in his original statement he had said there were only two. Mr Hume told the appellant that he saw only two offenders arrive at or leave Mr Fitzgerald’s Woodville Gardens house. One or two days later, after the appellant had moved wings within the prison, Mr Hume spoke to the appellant through cell barriers and said that he wanted to make a statement that he had seen only two offenders, neither of whom were the appellant. The appellant did not see Mr Hume again because he was transferred to a different prison but informed his solicitor about what Mr Hume had told him. In cross-examination, the appellant denied telling Mr Hume to make the statement. On the hearing of the appeal, the Court received affidavit and testimonial evidence from Mr Hume who is also known as ‘Possum’. His evidence was that he saw his cousin, Mr Wilson, quite regularly throughout 2013 and sometimes stayed at his house. At the time of giving evidence, Mr Hume had not seen Mr Wilson since 11 June 2013. Mr Hume also gave evidence that he had met Mr Fitzgerald, who lived directly across the road. Mr Hume testified that Mr Fitzgerald had been at Mr Wilson’s house on 11 June 2013, and that Mr Hume, Mr Fitzgerald and Mr Wilson had been working on cars and smoking together for most of the day. Mr Hume’s evidence was that he stayed at Mr Wilson’s house on the evening of 11 June 2013. He went to sleep on the sofa in the lounge room between 11.00 pm and 11.30 pm. Mr Wilson and his then partner Ms Melanie Weetra, and Mr Wilson’s relative, Ms Karen Johnson, who was living in a caravan on the property, had also retired to bed. Mr Hume testified that he got up when he heard a disturbance and a knock at the front door. Mr Hume gave evidence that he heard someone calling out ‘Angus and William, are you home?’ He opened the door and found Mr Fitzgerald standing there who told him that he had just been shot and that he needed to get to the hospital. Mr Hume called out to Mr Wilson, who was still in his bedroom, and went outside to the front yard. He saw two men there, one on the footpath outside Mr Fitzgerald’s front yard and one leaving the house. Mr Hume asked the man on the footpath what was going on, and the man told him not to worry about it and to go back inside. Mr Hume saw both men’s faces and did not recognise either of them.

Decision

Reasons for decision

KOURAKIS CJ
However, the evidence given on appeal by Mr Wilson that he did not recognise the appellant is, in itself, fresh evidence. His testimony is not strongly exculpatory. The circumstances in which he spoke to the offender, darkness, distance and significant stress, provide a strong explanation for why Mr Wilson may not have recognised the appellant. However the testimony he gave, and which could be adduced on a retrial, is a further reason not to apply the proviso on the grounds on which the appellant has shown error.Conclusion I would order:· Appeal allowed;· Convictions of two counts of Aggravated Serious Criminal Trespass in a Place of Residence, one count of Attempted Murder, one count of Aggravated Endangering Life, three counts of Aggravated Robbery, one count of Aggravated Causing Serious Harm with Intent to Cause Serious Harm, and one count of False Imprisonment set aside;· Remit the matter for retrial. KELLY J: I agree. LOVELL J: I would allow the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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