R v Forrest - [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 offending during the Valley View Home Invasion could not be used when considering the Woodville Gardens Home Invasion charges. Whether the trial Judge erred by failing to properly direct the jury in accordance with s 34R(1) of the Evidence Act 1929 (SA) (the Act). Whether the trial Judge erred in failing to direct the jury that it could not use the evidence of the Valley View Home Invasion offending as evidence that the appellant had a particular propensity or disposition to commit those types of offences. Whether a miscarriage of justice occurred as a result of the prosecutor inviting the jury to use the evidence of the Valley View Home Invasion for impermissible propensity purposes. Whether a miscarriage of justice occurred as a result of the prosecution’s failure to disclose information relevant to the credibility and reliability of two witnesses. Whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant on Counts 10, 11 and 13 had the evidence of Angus Hume been tendered at trial.
Held per Kourakis CJ (Kelly and Lovell JJ agreeing), allowing the appeal:
1. The evidence relating to the Valley View Home Invasion was admissible to circumstantially prove the identity of the appellant as one of the offenders in the Ottoway and Woodville Gardens Home Invasions. However, the failure of the Judge to explain to the jury its proper use increased the risk of its improper use.
2. To tell the jury merely that the appellant’s admission of the offences at the Valley View Home Invasion could not automatically lead to his guilt of the offences which he denied fails to say anything about the impermissible use of that evidence. The Judge’s directions did not comply with s 34R of the Act. This error affects all of the convictions entered on the guilty verdicts by the jury because the home invasions are linked circumstantially.
3. It is not possible to conclude that there has not been a substantial miscarriage of justice because the prosecutor relied on, as the Judge reminded the jury without disapproval, impermissible reasoning arising from the Valley View Home Invasion.
4. When there is a failure to comply with the prosecutorial duty to disclose material which might reasonably be expected to assist the defence, the question to be determined is whether it has resulted in a miscarriage of justice. The failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice. Beyond cases of that kind, care must be taken before finding that the material could not have changed the result.
5. The loss of the opportunity to conduct the forensic exercise of cross-examination on the freshly disclosed material is in itself indicative of a miscarriage of justice. There may be cases in which it can be shown that the witness’s credibility and reliability would necessarily have been resolved against the defendant, or that the impeached witness’s testimony was for all practical purposes insignificant. It is not possible to reach that conclusion in this case because of the substantial nature of the material and because of the importance of the identification evidence to the prosecution case.
6. The evidence of Angus Hume is not credible, however the evidence given on appeal by William Wilson that he did not recognise the appellant is, in itself, fresh evidence.
7. 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 are set aside.
8. The matter is remitted for retrial.
Evidence Act 1929 (SA) s 34R, s 34P(4); Director of Public Prosecutions Act 1991 (SA) s 10A, s 10(2), referred to.
R v K (1991) 161 LSJS 135, applied.

R v FORREST
[2016] SASCFC 76
Court of Criminal Appeal: Kourakis CJ, Kelly and Lovell JJ
KOURAKIS CJ.
Introduction

The appellant was tried by a jury for offences alleged to have been committed during three home invasions, two of them committed on 8 June 2013 and the third committed on 11 June 2013. The appellant was charged with 13 offences. On the morning of trial the appellant pleaded guilty to one count of Aggravated Serious Criminal Trespass in a Place of Residence and one count of Aggravated Robbery, but did not admit to the aggravating factors of using a firearm in the commission of those two offences. On 12 December 2014 guilty verdicts were returned for the following offences: 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.
The appellant appeals against the convictions based on the jury verdicts on a number of grounds.
Grounds 1 to 3 complain of the learned trial Judge’s directions to the jury regarding the way evidence of discreditable conduct and evidence relating to the offences for which the appellant pleaded guilty could and could not be used. Ground 4 complains that there was a miscarriage of justice as a result of the prosecutor inviting the jury to use evidence relating to the appellant’s admitted offending for impermissible propensity purposes.
Ground 5 complains that there was a miscarriage of justice as a result of the prosecution failing to disclose information relating to two witnesses.
Ground 6 complains that three of the convictions involved a miscarriage of justice in light of the evidence which would have been given by a witness who was not called.
The appellant was granted permission to appeal on grounds 1 and 2 and the application for permission to appeal on grounds 3 to 6 was referred to this Court.
I would allow the appeal on the grounds that the Judge’s failure to warn the jury against reasoning that the appellant was, by reason of his admitted involvement in one of the robberies, the kind of person who would engage in the violence with which the other robberies were committed and was thereby likely to have been one of the offenders who committed them. This was an error of law in that the Judge did not comply with s 34R of the Evidence Act 1929 (SA) (the Act).
I would also allow the appeal on ground 5. The Director of Public Prosecutions (‘the Director’) failed to comply with the prosecution obligation of disclosure by not providing the appellant with police material which showed that the witness who identified the appellant as an offender in the first home invasion was a drug trafficker and had a history of offending.
The appellant lost an opportunity of acquittal which was open on the evidence before the jury, and on the additional evidence given before the Court on appeal by a prosecution witness who saw the offenders who committed the third of the offences but did not recognise the appellant whom he knew from having spent time in prison with him.
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.
The driver’s licence taken by the three men listed Mr Sohkanen’s address as a property he had previously rented at Valley View.
On 8 June 2013, that property was occupied by Mr and Mrs Petracarro, who some years before had rented it to Mr Sohkanen but never had a relationship with him beyond that of landlord and tenant.
At about 5.20 am on 8 June 2013, the Petracarros were woken by three males rattling their front gates. Mr Petracarro began securing the house and realised that someone was in the garage. He also heard the side gate being kicked in. Mrs Petracarro was threatened by a male bashing on the front door of the home saying ‘I will get you bitch’. At the back of the house Mr Petracarro saw two males at the locked rear sliding door. One male, whom Mr Petracarro later described, kicked the glass and then broke it with an oil heater. One of the males was armed with a handgun. The men broke into the house and Mr and Mrs Petracarro escaped through the front door. Mr Petracarro described one of the men as stocky, wearing a beanie and what looked like work boots.
A blood stain was located on a wall inside the house from which a DNA profile matching the appellant was extracted. The appellant was not known to the Petracarros. A gold chain stolen from the Valley View house was pawned by the appellant’s then girlfriend. The paperwork in relation to the pawning of the chain and other items stolen from the Valley View house were located at the appellant’s brother’s home.
It was to the offending during the Valley View home invasion that the appellant pleaded guilty at the commencement of trial, being one count of Aggravated Serious Criminal Trespass in a Place of Residence[7] (Count 8), and one count of Aggravated Robbery[8] (Count 9). However, the appellant denied the aggravated circumstance of the use of a firearm and the jury were charged with the determination of that issue as well, concurrently with the hearing on the other counts. However during the trial the prosecution amended the Information to remove the aggravating circumstance of use of a firearm.
[7] Contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA).
[8] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The appellant’s DNA profile was located on the steering wheel and gear lever of the Pajero when it was located on 11 June 2013. The appellant told the jury the only time he drove the Pajero was to and from the Valley View house.
The Woodville Gardens Home Invasion: counts 10 to 13
On 11 June 2013 at approximately 3.00 am, Mr Fitzgerald (not Mr Sohkanen’s daughter’s boyfriend) was asleep at his home in Woodville Gardens. Also present were Mr Fitzgerald’s five children and partner. Two males had just broken into the house through the front door when Mr Fitzgerald came to the doorway leading into the lounge room and saw them. One of the men who had a handgun asked Mr Fitzgerald ‘are you Jason’, to which he replied ‘yes’, and told the men that he would give them whatever they wanted. Mr Fitzgerald was shot in the chest. Mr Fitzgerald did not recognise either of the two men.
Mr Fitzgerald escaped from the house through a window in a room adjacent to the lounge room. He went to Mr Wilson’s house (his neighbour) directly opposite. Mr Fitzgerald had been at Mr Wilson’s house earlier that night. Mr Wilson put Mr Fitzgerald into his car and as he did so saw a large man across the road on the corner outside of Mr Fitzgerald’s house. Mr Wilson approached him, and the man told him that he had a gun, and to stay out of it. Mr Wilson did not see a gun, but did see two males coming out of Mr Fitzgerald’s house with a white bag. All three males then got into a four wheel drive. Mr Wilson drove Mr Fitzgerald to the Queen Elizabeth Hospital without waiting for an ambulance.
Mr Fitzgerald had grown, and recently harvested, two cannabis plants, which were drying inside the house. The cannabis was stolen from the Woodville Gardens’ house, along with a plastic bag marked ‘NK Fashions’. A bag marked ‘NK Fashions’ was located in the appellant’s shed on which there was a blood-like stain. The blood, when examined, produced a DNA profile that matched Mr Fitzgerald’s DNA profile.
Cartridges located at Mr Sohkanen’s and Mr Fitzgerald’s homes underwent ballistic examination, which revealed that they were fired by the same 9mm firearm. A holster for a handgun, but no firearm, was located at the appellant’s home.
Telephone records for a mobile phone service in the name of the appellant’s then girlfriend shows it was used almost constantly, but was not used when any of the three home invasions took place. There was evidence at trial that the text messages retrieved from the phone were consistent with the appellant’s girlfriend and another person having used the phone from time to time during the relevant period.

The appellant was convicted of the following offences for the Woodville Gardens home invasion:
·Aggravated Serious Criminal Trespass in a Place of Residence,[9] with the aggravating circumstances of use of a firearm and being in company with others (Count 10), for the trespass into Mr Fitzgerald’s residence;
·Attempted Murder[10] (Count 11), for shooting Mr Fitzgerald in the chest (no verdict was taken for Count 12, Aggravated Causing Serious Harm with Intent to Cause Serious Harm, which was an alternative charge to Count 11); and
·Aggravated Robbery,[11] with the aggravating circumstances of use of a firearm and being in company with others (Count 13), for the theft of a wallet.
The Appeal
[9] Contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA).
[10] Contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA).
[11] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
Grounds 1 to 4 – the Judge’s directions and impermissible propensity reasoning
The first ground of appeal is that the Judge erred by failing to direct the jury that the evidence relating to the offending during the Valley View home invasion, that the appellant had pleaded guilty to, could not be used when considering whether Counts 10-13 (the Woodville Gardens home invasion) had been proven. The appellant argued that the evidence of the Valley View home invasion offending was inadmissible on the trial of those counts, and that the Judge’s directions failed to identify the evidence that the jury could use in determining Counts 10-13. The jury was therefore likely to have understood that they could use all of the evidence presented at trial, including that relating to the Valley View home invasion.
The second ground of appeal complains that the Judge erred by failing to properly direct the jury in accordance with s 34R(1) of the Act. In particular the appellant submitted that the evidence of the appellant’s admissible discreditable conduct could not be used to reason that because he had a criminal propensity, he was more likely to have committed Counts 1-7 (the Ottoway home invasion) and Counts 10-13 (the Woodville Gardens home invasion). It was contended that the jury should have been specifically directed that they could not use the evidence in relation to the Valley View home invasion offending to reason that, because he was the sort of person who had committed those crimes, he was more likely to have committed the other crimes. Further, it was said that the jury should have been directed that they could not use the appellant’s admissions of using and trading in illicit substances and receiving stolen goods to engage in similar ‘bad person’ reasoning.
The third ground of appeal is that the Judge failed to direct the jury that it could not use the evidence of the Valley View home invasion offending as evidence that the appellant had a particular propensity or disposition to commit those types of offences. It was said that notice pursuant to s 34P(4) of the Act was not given by the prosecution and as such the jury should have been directed that the Valley View home invasion evidence could not be used for this purpose. It was contended that without such a direction there was a serious risk that the jury would engage in such impermissible propensity reasoning.
The fourth ground of appeal was that a miscarriage of justice occurred as a result of the prosecutor inviting the jury to use the evidence of the Valley View home invasion for impermissible propensity purposes, namely that the appellant was the sort of person who would commit violent offences and was therefore the sort of person likely to have committed Counts 1-7 and 10-13. The Judge repeated the prosecutor’s submission in the summing up. It was also submitted that the prosecutor made submissions in closing that the appellant’s offending during the Valley View home invasion demonstrated he was the sort of person who would steal cannabis from Mr Fitzgerald and was therefore the sort of person likely to commit Counts 10-13.
Under ground 4 the appellant also complains that the prosecutor in his closing address invited the jury to use the evidence of the commission of the offences charged in counts 8 and 9 for propensity purposes.
It is convenient to deal with the first four grounds of the appeal together and to set out the impugned passages of the prosecutor’s address to the jury.
Section 34R(1) of the Act provides:
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
The prosecutor, in the course of his submissions about the Ottoway home invasion and the robbery of Mr Sohkanen and Mr Muttock said:
Roy was cross-examined quite closely about this incident, ladies and gentlemen and you may remember he was adamant this gun didn’t just go off accidentally. You can take into account a man who has been a professional roo shooter knows damn well more about guns than most of us. You may think a man who turned around and said ‘I shot him’ and pointing the barrel in Roy’s face is consistent with the violence meted out by these three men before the gun went off and after the gun went off. These are deliberate actions and statements. This is not an accident. This is not something that got out of hand. This is a violent home invasion from the get-go and whoever was there was prepared to use whatever violence was necessary.
Remember yesterday I asked Mr Forrest what level of violence he was prepared to use at [Valley View] and I think he told you ‘I didn’t think about it’. How could you possibly answer that question ‘Yes, I was prepared to do this, I wasn’t prepared to do that’. Whoever turned up at Kari Sohkanen’s house from the get‑go was there prepared to do whatever violence was necessary. Whoever went to [Valley View], and we know Mr Forrest went to [Valley View], you might think is in the same state of mind. Whoever went to Mr Fitzgerald’s house, without a doubt, was prepared to shoot him in front of his four children’.
You remember I told you, you don’t determine attempted murder by the result. Kari wasn’t shot, he didn’t even hear the gunshot go off but a 9 mm Luger cartridge and pellets were located in that house and the same gun was fired at Mr Fitzgerald’s. Kari, you might think, was involved in the altercation with the short man and then was being assaulted by the taller man by the time the gun was discharged and it was simply fate that was the determining factor that he wasn’t actually shot but, clearly, the armed man, by what he said to Roy, thought he’d shot Kari. He thought he’d shot Kari and didn’t appear to be concerned about it.
[emphasis added]
The underlined passage clearly invited the jury to reason that the appellant had a propensity to act indiscriminately and violently without inhibition by reason of his conduct in the Valley View home invasion and was therefore likely to have had an intention to kill Mr Sohkanen and to have been the assailant of Mr Fitzgerald. In her summing up the Judge reminded the jury of that part of the prosecutor’s address:
Mr Longson referred to Mr Forrest’s evidence about the violence he was asked he was prepared to use at [Valley View]. Mr Forrest said he didn’t think about that. Mr Longson submitted whoever turned up at [Valley View], you might think they were in the same state of mind as the people who attended at Kari Sohkanen’s house and those who attended Mr Fitzgerald’s house and they were prepared to use whatever violence was necessary.
The prosecutor also relied on the appellant’s propensity to use violence, which was manifest in the Valley View home invasion, when addressing the evidence about a piece of wood which Mr Fitzgerald kept at his Woodville Gardens home in case persons came there to steal his cannabis. The prosecutor referred rhetorically to the kind of person who might rob Mr Fitzgerald of his cannabis saying:
Somebody like the accused, ladies and gentlemen. Somebody like the accused who we know did a home invasion on 8 June, on the most spurious of pretexts. A couple of nameless, faceless punters turn up at his house, they don’t know Valley View and off he goes. Well, yes, he did need protection, he needed protection from people like Mr Forrest you might think.
The preparedness and readiness to use violence to which the prosecutor referred would commonly be inferred from the commission of the Valley View home invasion. The prosecutor was giving voice to what the jury may well have been thinking. However such reasoning is propensity reasoning which must be strongly probative if it is to be admitted into evidence and relied upon to prove guilt. The prosecution did not give notice, pursuant to s 34P(4) of the Act, that they pressed for the admission of the evidence of the Valley View home invasion, on the trial of the Woodville Gardens offences, for that purpose. Nor did the Director contend on appeal that the evidence was admissible for that purpose. It follows that the Judge was required to direct the jury pursuant to s 34R of the Act that the evidence could not be used to reason that the appellant had a propensity to commit violent home invasions or robberies in like manner to the Valley View offences. Nor could it be used to find that he was generally prepared to kill, if necessary to do so, in the course of a robbery.
The Judge gave the following directions to the jury on the need to consider each count separately:
I now turn to the topic of separate consideration. In this trial, you have heard evidence that Mr Forrest is alleged to have committed 13 offences, two of which he has pleaded guilty to. Ladies and gentlemen, you must consider each count separately, evaluating the evidence you have heard in this court relating to each of the 11 counts you have to consider to decide whether you are satisfied beyond reasonable doubt the prosecution has proved all of the elements of a particular charge or offence.
What you do not say is having found the accused guilty, for example, of count 1, or not guilty, you must do the same for the next count. You will be asked to return your separate verdicts for each count and will only convict if you are satisfied beyond reasonable doubt that the particular conduct, which is the subject of the relevant count, has occurred.
You also must not reason that because Mr Forrest has pleaded guilty to counts 8 and 9 in respect to the Valley View offending, that he must therefore be guilty of any or some or all of the other offending with which he is charged. To do so would be wrong. Each count must be considered separately by you. You must evaluate the evidence you have heard in this court relating to each count to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved all of the elements of the particular charge or offence you are considering.
Those directions do not touch on the propensity use of the evidence. They cannot readily be understood as directions not to use the propensity reasoning so emphatically pressed by the prosecutor. They certainly do not preclude use of some of the evidence about the commission of one group of offences in aid of proof of another.
Indeed the Judge properly directed the jury that some of the evidence of the offending on each of the incidents could be used circumstantially in aid of proof of the others. The Judge directed the jury:
First, you must decide what facts you accept are established on the evidence. After deciding what facts you accept as established, you then go on to consider what inference, and by inference I just mean what conclusion or conclusions, you are prepared to draw from the facts which you find established. Each item of circumstantial evidence needs to be separately examined. When you are deciding whether you accept that a particular fact has been established, you are entitled to take into account the whole of the evidence that you have heard, not just the particular fact that you are considering in isolation.
The Judge then listed items of circumstantial evidence from the three incidents on which the prosecution relied but did not explain to the jury any connection between those items of evidence and the reasoning by which they tended to show the appellant’s guilt.
The Judge did warn the jury against reasoning that the appellant was guilty of the Ottoway and Woodville Gardens home invasions by reason of his admission of the Valley View offending and his admitted involvement in drug trafficking in these terms:
Ladies and gentlemen, Mr Forrest has admitted committing two serious offences. He has admitted committing aggravated serious criminal trespass and aggravated robbery in company at Valley View. He has also admitted using drugs and exchanging drugs of significant value for items of jewellery. You must not reason that because he has admitted committing the trespass and robbery in company at Valley View, that he is therefore guilty of the offending at Ottoway and Woodville Gardens. That would be wrong of you to reason in that way.
He has also told you about trading in drugs. You must remember that he is not on trial for any drug offending.
You also must not reason, because he is engaged in drug taking and drug trading, that he is therefore guilty of this offending.
Ladies and gentlemen, you must reach your conclusions about each of the facts and circumstances put before you in this trial. If you do not find a fact or circumstance proved after considering all of the evidence, push it away and do not pay it any further attention.
Those warnings were an elaboration of the separate consideration direction to which I earlier referred. The warnings were that the jury could not reason that, by virtue of his admission to trespass and robbery in the Valley View incident, the appellant was ‘therefore’ guilty of the offending at Ottoway and Woodville Gardens, or that because he engaged in drug taking and drug trading he was ‘therefore guilty’ of the offending charged against him. It was a warning against deciding the case only by reference to his commission of other offending by reasoning that being a criminal he was likely to have committed the offences charged. That is to say, the Judge warned the jury not to jump without more to a conclusion of the guilt of the offences which he denied because of his admission to other offending.
The Judge did not warn the jury against reasoning that because the appellant was involved in the second incident at Valley View he had a tendency to commit offences of this kind and that that tendency could be taken into account along with the other evidence to prove his commission of the offences which he denied. The Judge did not warn the jury, for example, that they could not use any tendency disclosed by the offending during the Valley View home invasion, together with the other circumstantial evidence of identity, to find the appellant guilty of all or any of the offences committed in the Ottoway and Woodville Gardens home invasions. To tell the jury merely that his admission of the offences committed in the Valley View home invasion could not automatically lead to his guilt of the offences which he denied fails to say anything about the impermissible use of that evidence.
I conclude that the Judge’s directions did not comply with s 34R of the Act. The risk of improper use was great because the prosecutor had urged the jury to reason that the offending in the Valley View home invasion showed that the appellant was the kind of person who would act in the violent way in which the Ottoway and Woodville Gardens home invasion offenders acted.
The failure of the Judge to warn the jury against the impermissible use of the evidence was compounded in this case by the Judge’s failure to comply with the obligation imposed by s 34R of the Act to explain to the jury how the evidence could be used. The appellant did not expressly complain of that failure because he contended that the evidence was inadmissible. Contrary to the appellant’s submission on ground one of the appeal, the evidence was admissible, but the failure to explain to the jury its proper use increased the risk of its improper use. The proper use for which the evidence was admissible was to circumstantially prove the identity of the appellant as one of the offenders in the Ottoway and Woodville Gardens home invasions. The evidence that the appellant committed the offences at Valley View circumstantially proved his involvement in the offences in the Ottoway home invasion because the Valley View address appeared on the licence stolen in the Ottoway home invasion and was committed just one hour and forty minutes later. That same evidence tended to prove the appellant’s involvement in the Woodville Gardens home invasion, because the same gun and a similar four wheel drive vehicle were used in the Ottoway and Woodville Gardens home invasions. Finally, the appellant was connected in one way or another to items stolen from all three home invasions. If the jury had been directed that the only permissible use of the other offending was to circumstantially prove the identity of the appellant as one of the offenders in those incidents, the jury would have been less likely to have misused the evidence for propensity purposes.
It follows that the first ground of appeal must be dismissed. However, the appellant has established an error of law on grounds 2 and 3 which, because the home invasions are linked circumstantially, affects all of the convictions entered on the guilty verdicts returned by the jury. Moreover it is not possible to conclude that there has not been a substantial miscarriage of justice because the prosecutor relied on, as the Judge reminded the jury without disapproval, that impermissible reasoning. For the same reasons, the endorsement of the prosecutor’s propensity based arguments have resulted in a miscarriage of justice. Grounds 2, 3 and 4 must be allowed.
Ground 5 – duty of disclosure
Ground 5 of the appeal argues that a miscarriage of justice arose on Counts 1 and 3-7 (the Ottoway home invasion offences) as a result of the prosecution’s failure to disclose information relevant to the credibility and reliability of two witnesses, Mr Sohkanen and Mr Muttock, contrary to the Director’s common law duty of disclosure. No information about Mr Sohkanen or Mr Muttock’s previous criminal offending (including their antecedent reports) were disclosed before trial. At trial the prosecution presented them as witnesses of apparently good character. Material produced to this Court by the Commissioner of Police in answer to a subpoena issued by the appellant shows that before the commencement of the trial, South Australian Police (SA Police) had in its possession information which called into question the credibility and character of both witnesses. The appellant contended that this failure was itself sufficient to require quashing of the convictions and that it was not necessary for the appellant to demonstrate that the jury’s verdict would have been different but for the failure to disclose.
The Director was aware that Mr Sohkanen and Mr Muttock had connections with outlaw motorcycle gangs. So much was disclosed on the notes of several police officers who investigated the Ottoway home invasion provided by SA Police to the Director who in turn provided them to the appellant’s solicitor and counsel during the course of the committal proceedings before trial. Importantly, the notes disclosed that police had discovered a gun at Mr Sohkanen’s Ottoway premises in the course of investigating the Ottoway home invasion.
In an affidavit received on the appeal the appellant’s counsel at trial deposes that he did not notice the references to the guns and Mr Sohkanen’s gang associations in those notes. That is as unfortunate as it is surprising. However it is not contended by the Director that the trial counsel adopted a deliberate strategy of not making further enquiries about Mr Sohkanen’s antecedents.

Mr Sohkanen’s identification of the appellant was a major part of the prosecution case on the counts relating to the Ottoway home invasion. The appellant’s denial of those counts therefore necessarily raised as an issue the reliability and/or credibility of Mr Sohkanen’s identification of the appellant. The evidence of the Ottoway home invasion strongly suggests that it arose out of Mr Sohkanen’s and Mr Muttock’s involvement in drug trafficking. Other evidence that Mr Sohkanen and Mr Muttock were criminally involved in the drug trade was therefore capable of materially affecting their credibility and reliability.
I turn then in greater detail to the further material received by this Court.
The antecedent report of Mr Muttock disclosed that he had a history of drug offending (cannabis and amphetamine) and firearms offences. He was convicted on 6 February 1989 of cultivating marijuana and a $300 fine was imposed. On 9 December 2003 he was convicted of trafficking in cannabis and a suspended sentence of six months imprisonment was imposed. He was fined $1,800 for a conviction of possess amphetamine on 13 September 2012. On 19 March 2014 he was convicted of possess cartridge ammunition without licence and a suspended sentence of eight months imprisonment was fixed.
The antecedent report of Mr Sohkanen revealed offending which, even though not serious, suggested a long-standing association with the illegal drug trade.
The material included detailed information about police searches of Mr Sohkanen’s premises on 8 November 2012 and 28 March 2013. It is not known whether the search on 8 November 2012 resulted in Mr Sohkanen’s conviction of any offences. During the 28 March 2013 search, he was found in possession of items indicative of substantial involvement in the drug trade. Also found during the search was a sawn-off shotgun. As a result of the search on 28 March 2013, he was charged with offences of Interfere with Electricity Meter, Carry Offensive Weapon and Possess Firearm without Licence. He pleaded guilty to the first two offences and was placed on a good behaviour bond on 18 August 2014 before he gave evidence. He was convicted of the firearms offence on 9 February 2015 and placed on a suspended sentence. In April 2013 Mr Sohkanen twice failed to comply with conditions of a bail agreement probably related to his apprehension for those offences. Mr Sohkanen had prior convictions for divert electricity and assault in 1998 and 1999 respectively.
If in possession of that material, counsel for the appellant would have had a reasonable basis on which to put to Mr Sohkanen that he was heavily involved in the drug trade. If denied, evidence to the contrary was available and would have been admissible because his involvement in drug cultivation may have given him a motive to lie about the identity of his attackers. In the search conducted on 28 March 2013 other persons were present whom police identified as members of an outlaw motorcycle gang. Counsel for the appellant could therefore properly have put to Mr Sohkanen that he associated with members of an outlaw motorcycle gang. That denial too may have been capable of contradiction by calling evidence to the contrary for similar reasons.
Possession of the material produced on subpoena would also have allowed counsel to put to Mr Sohkanen that he was involved in a $1.4 million fraud of the Department for Communities and Social Inclusion. The material also contained information that Mr Muttock was an amphetamine dealer.
Importantly, police intelligence circulars issued three days after the Ottoway home invasion described Mr Sohkanen as a former Gypsy Joker. Reports about Mr Sohkanen in the preceding months had referred to his arrest after the search on 28 March 2013 for being in possession of a shotgun, an ice pipe and a baton. The circulars also reported on his offence for breaching bail and to the theft of electricity at his Ottoway premises. Earlier reports again refer to his arrest for operating an amphetamine laboratory and to his extensive criminal history. The antecedent report did not disclose a conviction for amphetamine manufacture. A circular in December 2013 reports that Mr Sohkanen is ‘well recorded on SAPOL holdings’. Another circular dated 19 June 2013 headed ‘The Games We Play’ also reports on the Ottoway home invasion. It refers to Mr Sohkanen and Mr Muttock’s criminal connections.
The officer in charge of the investigation of the Ottoway home invasion must either have known or ought to have known of the existence of the material which was produced to this Court.
In an affidavit sworn 8 September 2015, a solicitor in the Office of the Director deposed that the material subpoenaed by the appellant on the appeal was not in possession of the Office of the Director prior to or during Mr Forrest’s trial.
The primary determinant of the extent of the prosecution duty to disclose will be the circumstances known, actually or constructively, by the Office of the Director. A breach of the duty will not easily be justified or excused by a failure on the part of the accused or his or her counsel to request material which should have been disclosed. The standard of legal representation affordable by accused persons will vary and it cannot be the case that the standards of justice will vary accordingly. In this case, the same material which it is claimed should have put the defence on notice should also have put the Director’s Office on notice.
More fundamentally, the Director cannot, as a general proposition rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.
It is to that matter which s 10A of the Director of Public Prosecutions Act 1991 (SA) (the DPP Act) is directed:
10A—Disclosure of information to Director
(1)A police officer in charge of the investigation of an indictable offence (the chief investigator) has a duty to disclose to the Director all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence.
(2)The chief investigator must, when so required by the Director, provide the Director with—
(a)     a list, certified by the chief investigator, of all documentary material so far collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence; and
(b)     copies of documentary material referred to in the list.
(3)The duty of disclosure under subsection (1)—
(a)     extends to material that would be exempt from production in court because it is protected by privilege or for any other reason; and
(b)     continues until the termination date.
(4)The chief investigator must ensure that all material disclosed, or liable to disclosure, under subsection (1), is retained until the termination date.
(5)The chief investigator must, at the request of the Director, provide the Director with copies of specified documentary material collected or created in the course of the investigation that is not liable to disclosure under subsection (1).
(6)Copies of documentary material to be provided under this section may be provided in electronic form.
(7)A police officer must not, without good and sufficient cause, fail to carry out a duty under this section promptly and diligently.
(8)The police officer in charge of the investigation of an indictable offence will, for the purposes of this section, be the police officer appointed by the Commissioner for that purpose.
(9)In this section—
termination date means the date when—
(a)     the Director decides that the person suspected of having committed the alleged offence not be prosecuted for the offence; or
(b)     the prosecution is terminated; or
(c)     the accused person is convicted or acquitted, and all rights of appeal have expired or been exhausted.
Even though the judicial enforcement of the obligation imposed by s 10A(2) of the DPP Act on the chief investigator may be problematic, it does provide a statutory foundation for extending the prosecutorial obligation to disclose material which might reasonably be expected to assist the case for the defence beyond material which is in the actual possession of the Director’s office to material which the chief investigator was duty bound to disclose to the Director pursuant to s 10A of the DPP Act. As a general proposition the Director’s duty to disclose cannot be excused on the ground that the chief investigator did not discharge his or her s 10A duty, because s 10A(2) of the DPP Act provides the Director with a mechanism to enforce that duty.
In this case, the identification evidence of Mr Sohkanen was the critical evidence on which the Director relied to rebut the appellant’s innocent explanation for the presence of material with his DNA profile on the inside of the Pajero. The combination of the police intelligence material and Mr Sohkanen’s prior convictions provided a strong foundation on which to challenge his credibility and reliability.[12]
[12] R v K (1991) 161 LSJS 135 at 140 (King CJ).
When there is a failure to comply with the prosecutorial duty to disclose material which might reasonably be expected to assist the defence, the question to be determined is whether it has resulted in a miscarriage of justice. Plainly the failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice. Beyond cases of that kind, care must be taken before finding that the material could not have changed the result. The reasoning of the jury is inscrutable. Many factors individually or in combination may leave a jury in doubt about a witness’s testimony. A substantial long standing involvement in criminal activity may quite properly be viewed by a jury as a reason to reject or at least cast doubt on a witness’s testimony. Moreover it does not lie comfortably in the mouth of a prosecuting authority, who has breached a duty calculated to avoid a miscarriage of justice, to contend that the withholding of the material was of no consequence.
Cross-examination of Mr Sohkanen on the freshly disclosed material was capable of raising a real question about his credibility and reliability. The loss of the opportunity to conduct that forensic exercise is in itself indicative of a miscarriage of justice. There may be cases in which it can be shown that the question of a witness’s credibility and reliability would necessarily have been resolved against the defendant, or that the impeached witness’s testimony was for all practical purposes insignificant. If that finding can be made, the appellant may ultimately fail to establish that there has been a miscarriage of justice. It is not possible to reach that conclusion in this case because of the substantial nature of the material and because of the importance of the identification evidence to the prosecution case.
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.
Mr Hume testified that he had first met the appellant in Yatala Labour Prison approximately eight years prior to the Woodville Gardens incident, and had seen him three or four times since then. His evidence was that the appellant was not one of the two men outside Mr Fitzgerald’s house.
Mr Hume then went back inside the house, leaving Mr Fitzgerald out the front of the house, and ‘sat down and freaked out’. He did not know where Mr Wilson was and he did not see Ms Weetra. Mr Hume next saw Mr Wilson after he returned from taking Mr Fitzgerald to the hospital. Mr Hume testified that Mr Wilson told him that he had also seen two men, and that one of them had a firearm. Mr Hume left the house early the next morning. Mr Hume walked around the corner to Cyril Lindsay House, where he met with Mr Ian Sansbury, the then manager of the hostel. Mr Hume gave evidence that he had a discussion with Mr Sansbury about what had happened the previous night.
Mr Hume testified he saw the appellant in prison early in 2015 after he had learnt that the appellant had been convicted of the offences. He offered to make a statement recording what he had seen. No one asked him to make a statement and the appellant did not offer him anything in return for doing so.
Mr Hume was cross-examined extensively. He testified that he recalled seeing blood on Mr Fitzgerald’s chest and hands, on the doorstep and in the driveway when he opened the door. He could not recall whether Mr Fitzgerald was wearing any clothing on his upper body but claimed that he was holding the right side of his chest. When questioned why he did not assist him, Mr Hume explained that he had yelled out to Mr Wilson to come and that he wanted to see what was happening outside. Mr Hume said he was not able to drive Mr Fitzgerald to hospital because he did not have a driver’s licence.
Mr Hume testified that the man he saw leaving Mr Fitzgerald’s house exited through a window less than a minute after he answered the door but he could not recall in what manner he did so. Mr Hume was unable to recall whether either man had anything in his hand. He denied that he had been told that someone came out of the window that evening and that he was simply incorporating that information into his account.
Mr Hume testified that he only went outside Mr Wilson’s house again after the police had arrived. He was not sure whether Mr Wilson had returned from the hospital by that time. He spoke to a police officer but could not recall whether the officer was male or female, in uniform or plain clothes. Mr Hume gave the police officer his name and date of birth. The police officer asked him if he wanted to give a statement but he declined. Mr Hume denied that he slept through the events of that night.
Mr Hume said that he had seen the appellant while in custody as prisoners were moved around, but did not speak to him before the conversation in his cell. Another prisoner told Mr Hume that the appellant had been convicted of the Woodville Gardens home invasion offending after it came up in conversation. He testified that he asked the appellant if he was convicted of shooting Mr Fitzgerald, and the appellant replied that he was. They then had a brief conversation about it. The appellant complained to him that Mr Wilson had changed his statement. Mr Hume disclosed that Mr Wilson was his cousin and that he ‘couldn’t see [Mr Wilson] doing something’ like changing his statement to say that three people were present. Mr Hume also told the appellant that he was at Mr Wilson’s house that night, but did not tell the appellant that he did not see him there. Later in cross‑examination, Mr Hume added the detail that he had also informed the appellant that he was there on the night and that he had only seen two offenders. Mr Hume testified that the appellant seemed ‘a little shocked’ by his disclosures and collected his things and went to take a shower.
It was Mr Hume’s evidence that he did not have any further conversation with the appellant about it. He denied that he and the appellant had colluded in their evidence regarding their conversation in the appellant’s cell, and disagreed when it was specifically put to him that the conversation never took place. Mr Hume conceded that he was ‘a little concerned’ that he could be harmed because people related to those who give evidence for the prosecution in criminal trials are sometimes thought of badly in gaol but denied that this had motivated him to come forward to assist the appellant. Nor did he expect any advantage to come to him as a result of his giving evidence. Mr Hume maintained that he was giving evidence because he was at Mr Wilson’s house that night and saw what happened, and had given his word to the appellant that he would go to court for him. He thought it unfair that the appellant had been convicted of something that he had not done.

Mr Hume agreed under cross-examination that he had been convicted of a number of dishonesty offences, stealing, and breaking into people’s homes, and that he had also breached bail, bonds and parole.
An affidavit of Mr Sansbury was received by way of evidence in chief to rebut the suggestion that Mr Hume’s claim that he was at the house on the night was a recent invention. In that affidavit, he described working at Cyril Lindsay House in Woodville Gardens in about 2013 and having a conversation with Mr Hume, who was walking past sometime between 7.20 am and 8.00 am one morning. Mr Sansbury had known Mr Hume from about 2005. Mr Sansbury’s evidence was that Mr Hume said that he had just witnessed a home invasion or shooting, or something similar. It was Mr Sansbury’s impression that it had occurred in the Woodville Gardens area. During the conversation, Mr Hume appeared ‘pretty freaked out, pretty agitated ... trembling and talking quickly’. Mr Sansbury also had the impression that Mr Hume did not want to stay in the area. He did not mention the names of anyone involved. Later that day, Mr Sansbury heard from other people, or on television, that there had been a shooting at Woodville Gardens the previous night, and he took this to be the event that Mr Hume had spoken about.
In cross-examination Mr Sansbury admitted that he could not now recall whether he had seen the news reports or spoken to Mr Hume first. He could not remember the exact words Mr Hume used, and that it was simply something to the effect that he saw a home invasion and possibly a murder. He agreed that Mr Hume did not provide any details of what he knew about the home invasion and murder. Mr Sansbury’s view was that Mr Hume was more scared than affected by drugs or alcohol during the conversation, but did not know whether Mr Hume was affected by drugs or not.
Ms Sarah Newcombe, Mr Fitzgerald’s partner also gave evidence on the appeal. She lived with Mr Fitzgerald on 11 June 2013. Mr Fitzgerald had been at Mr Wilson’s house for most of the day. She recalled that sometime after 2.00 am Mr Fitzgerald came home. After she had fallen asleep she was woken by a loud banging, like the door being kicked in. She and Mr Fitzgerald both got up and Ms Newcombe walked behind Mr Fitzgerald into the lounge room. As they reached the lounge room doorway, two men entered the house. One of them called out Mr Fitzgerald’s full name and then shot him. Ms Newcombe moved under the table in the kitchen, and she saw one man with a gun. Before she moved from under the table she saw Mr Fitzgerald crawl through the front bedroom, but did not see whether he left the house through the window. Ms Newcombe stumbled over into the laundry on the floor and one of the men came over to her and said ‘where’s your fucking man?’. Ms Newcombe did not respond or look up at the man but got up and ran. Ms Newcombe escaped the house through the backyard and jumped over the side fence. She hid in the rear yard behind her house. She heard, but did not see, the men leave the house. She heard two car doors close and saw a silver four-wheel drive leave.
Ms Newcombe then ran to Mr Wilson’s house, at which time he had already taken Mr Fitzgerald to the hospital. Mr Wilson’s partner, Ms Weetra opened the door when she knocked. Ms Newcombe testified that she took a few steps into the lounge room of the house and from that vantage point could see Ms Weetra and a Caucasian female who she did not recognise. She did not see a man in the lounge room. She said she could easily see around the lounge room including the sofa because it was a small room. She denied that she stood in the doorway and did not move into the lounge room. Ms Newcombe denied under cross-examination that she was so shocked that she may not have noticed someone else in the lounge room or that she may have forgotten seeing someone else. Ms Newcombe spoke to Ms Weetra for 30 seconds to a minute.
Ms Newcombe then returned home to check on her children and then went back to Mr Wilson’s house after the police had arrived. She and her children stayed the night there. A number of men were there, some of whom she knew, and some of whom she only recognised. Ms Newcombe was shown a photograph of Mr Hume and stated that she had never seen him before. She testified that prior to the appeal, she had never heard of the name Angus Hume or heard the nickname Possum.
Mr Fitzgerald’s evidence was that he spent most of the day at Mr Wilson’s house working on his cars. Mr Fitzgerald testified that it was only himself and Mr Wilson working on the cars, and no one else came to the house while he was there. He denied that there was another man at Mr Wilson’s house when they had dinner. They smoked some marijuana during the day. Mr Fitzgerald left at about midnight and went to a service station to get drinks. He intended to return to Mr Wilson’s house but instead went home at about 1.00 am or 1.30 am. He smoked two cones of marijuana and fell asleep. Mr Fitzgerald was woken by Ms Newcombe and heard doors being crashed in. He went into the lounge room and saw someone standing there with a gun who asked for money and drugs. Before he could respond, he was shot on the left-hand side of his chest. He saw two people in his house. He was wearing only board shorts but no shirt or shoes.
After Mr Fitzgerald was shot, he went into the spare bedroom, climbed out the window and went to Mr Wilson’s house. He bashed on Mr Wilson’s window and called out to him saying ‘Will, Will’. Mr Wilson came to the door and Mr Fitzgerald told him he had been shot. Mr Wilson came outside and Ms Weetra remained at the door. Mr Wilson had a look at Mr Fitzgerald and asked Ms Weetra to get something to cover up the wound. There was no one with Mr Wilson. Mr Fitzgerald and Mr Wilson stayed outside the front door while Ms Weetra retrieved a cloth, which she gave to Mr Wilson. Mr Wilson put the cloth on Mr Fitzgerald’s chest before putting him in a car and driving him to the hospital.
Mr Fitzgerald testified that he did not know anyone by the name Angus Hume, or any person known as Possum. He did not recognise Mr Hume when shown a photograph of him. He also denied calling out to ‘Angus’ when he went to Mr Wilson’s house for assistance.
Mr Fitzgerald was cross-examined about his significant criminal history including convictions for serious criminal trespass, rape, breaking and entering a building, larceny and failing to truly answer questions from the police. A copy of his antecedent report was tendered. He denied that his marijuana use had affected his memory of the events. He admitted that he had lost consciousness in the car on the way to the hospital but denied that he had reconstructed what had happened earlier at Mr Wilson’s house.
Mr Wilson testified that Mr Fitzgerald was at his house helping him with his cars nearly all day on 11 June 2013 and that no one else was there. Mr Fitzgerald left at around 11.00 pm to go to the service station, while Mr Wilson stayed in the living room and smoked some marijuana. No one else was in the lounge room with him. The next thing Mr Wilson recalls was a ‘big bang’ outside of his bedroom window, and opening the door to see Mr Fitzgerald standing with blood all over him. Mr Fitzgerald had been calling out saying he had been shot, but had not called anyone by name. Mr Wilson recalled that Mr Fitzgerald was only wearing shorts. Mr Wilson asked Ms Weetra to get a towel for the wound on the left side of his chest. When she returned, Mr Wilson asked her to call an ambulance. From the light on the verandah, Mr Wilson could see that the bullet went straight through his back, so he decided to drive him to the hospital rather than wait for the ambulance.
Mr Wilson testified that after he put Mr Fitzgerald in the car, he saw another man standing across the road on the street corner. He asked the man ‘What did you do? What did you do that for?’ The man told Mr Wilson that he had a gun, to stay out of it, and that he had to go. Mr Wilson was standing at the back of his car, which was parked on the road between Mr Wilson’s and Mr Fitzgerald’s houses. Mr Wilson then moved towards the driver’s side door when he saw two men run out of the front door of Mr Fitzgerald’s house. One had a white bag in his hand.
Mr Wilson testified that he was about 25 metres from the man to whom he spoke. Whilst he said he could not really see the face of that man or the other two men, he testified that he did not recognise the man who told him to stay out of it as the appellant. Mr Wilson gave evidence that he had seen the appellant when he spent some time at Yatala Labour Prison and was able to recognise him. Mr Wilson said he did not see the faces of any of the men he saw or spoke to that night because they were too far away.
Mr Wilson agreed that he knew Mr Hume but that he had never referred to him as his cousin. He gave evidence that Mr Hume was not at his house during the day or when Mr Fitzgerald came to the front door after being shot. Mr Hume also did not arrive at the house at any time later that night or the next day. In cross-examination, Mr Wilson denied that Mr Hume ever slept at his house on the lounge, including on 11 June 2013. He said the only people staying at his house that evening were Ms Weetra, Ms Johnson, also known as Aunty Karen, Mr Wilson’s children and himself.
It was put to Mr Wilson that when he provided a statement to the police early in the morning of 11 June 2013, he had said that in addition to the large man he spoke to, he only saw one other man leave Mr Fitzgerald’s house. Mr Wilson claimed that the police officer who took his statement had made a mistake and that he had seen two other men. It was an agreed fact at trial that when Mr Wilson’s statement was read to him during proofing, he said that there were three men at the house.
Ms Johnson was living in a caravan at the back of Mr Wilson’s house on 11 June 2013. She frequently used methamphetamines, and was taking the drug on 11 June 2013. She admitted that her drug use has affected her short-term and long-term memory. She gave evidence however that she recalled a few things from 11 June 2013, including that she did not see Mr Hume, whom she knew, that night. Ms Johnson agreed in cross-examination that she had spoken to a private investigator in May 2015, but did not agree that she had told him that she was unsure whether Mr Hume was at the house on 11 June 2013.
Ms Weetra was Mr Wilson’s de facto partner in June 2013. She testified that Mr Hume was a friend of Mr Wilson’s family and that he would ‘pop in every now and again’. Her evidence was that Mr Hume was present on the night that Mr Fitzgerald was shot. She heard Mr Fitzgerald banging at her window and calling Mr Wilson’s name. When she went to the front door Mr Wilson was already there, but that he had been sitting on a recliner in the lounge room. She recalled that Mr Hume was passed out on the three seater couch in the lounge room when she went to the front door, and that he did not get up. She saw people out on the street, but could not make out who they were. She heard a man standing at Mr Fitzgerald’s front gate across the road tell Mr Wilson to ‘stay out of it’. He looked really big and tall but she couldn’t describe him. After seeing Mr Wilson drive away to take Mr Fitzgerald to hospital, Ms Weetra went back inside and woke Mr Hume up to tell him what was happening. Mr Hume got up but Ms Weetra did not recall him going out the front of the house. She was not sure if he opened the front door to look outside.
Ms Weetra recalled that Ms Newcombe came over to the house while Mr Wilson was driving Mr Fitzgerald to the hospital. According to Ms Weetra, Ms Newcombe came far enough into the lounge for her to lock the door behind her. While Ms Newcombe was in the living room Mr Hume was not there. The only other person there was her sister-in-law Melissa, who she described as fair with blonde hair. Ms Weetra testified that Ms Johnson was not in the house and that she only returned later that night. Ms Newcombe left the house and then returned with her children. Ms Weetra could not recall Mr Hume’s movements that evening, but remembers that the last time she saw him was that night. She testified that Mr Hume had been in and out during the day.
Detective Charlton, the SAPOL investigating officer, gave evidence that no SAPOL documents indicate that Mr Hume was spoken to after the shooting, nor were his details provided. He did however agree that there was some possibility that those records could be incomplete.
Findings of fact on the further evidence
Ms Weetra’s testimony was convincing. She was attentive to the questions and answered in a way which displayed an awareness of the seriousness of the occasion and a desire to assist the Court. It is likely that her separation from Mr Wilson has freed her from the partisanship other witnesses may have shared.
I accept her evidence that Mr Hume was at Mr Wilson’s house at the time of the Woodville Gardens home invasion. Even though Mr Hume was not an impressive witness his testimony that he was there is strongly supported by the prior consistent statement of presence at the scene which he made to Mr Sansbury.
I also accept Ms Weetra’s evidence that Mr Hume did not answer the door. Indeed these two interrelated aspects of Ms Weetra’s testimony give me much confidence in the reliability and credibility of her evidence. There could be no reason for her to falsely claim Mr Hume was present but to then give evidence that he was not in a position to see anything. Conversely, there could be no reason for her to give evidence he was there and then falsely claim that he could not have seen anything. Moreover Mr Hume’s evidence that he saw Mr Fitzgerald at the door is unreliable on its face. He could not describe Mr Fitzgerald’s state of dress and was mistaken as to the side of the body on which he was wounded. His explanation for not immediately going to Mr Fitzgerald’s assistance is implausible.
Finally Mr Hume’s evidence that he saw two offenders climb out the window of Mr Fitzgerald’s house cannot possibly be right. He is likely to have fabricated that account on a mistaken understanding of accounts of Mr Fitzgerald escaping through a window. The evidence of Mr Hume is not credible.
The appeal ground based on the further evidence that Mr Hume could give must be dismissed.
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.