R v Fowler - [2019] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOWLER
Criminal Trial by Judge Alone
[2019] SADC 100
Reasons for the Verdicts of Her Honour Judge Schammer
31 July 2019
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - MOTIVE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT IN COMPANY
The accused is charged with four counts; Aggravated Serious Criminal Trespass in a Place of Residence, Aggravated Causing Harm with Intent to Cause Harm, Aggravated Assault and Theft.
During the early hours of 22 March 2017 two masked men, apparently carrying rifles, gained entry to the first complainant’s Highbury home, while he and his son, the second complainant, were asleep (the incident).
One of the men repeatedly struck the first complainant in the head using the butt of his rifle, while the other man stood at the end of the first complainant’s bed, pointing a rifle at him.
After the second complainant entered the first complainant’s bedroom, he was forced to lie on the floor and was later kicked in the face by one of the men. During the incident one of the men said words to the effect that the first complainant had molested a young girl. The man may have described this girl as his niece.
The Highbury home was ransacked. After the incident the complainants reported certain items missing from the home, including a Kawasaki motorcycle and a distinctive engraved ring.
On 24 March 2017, Officers Donaldson and White drove past a property associated with suspected drug dealing at Salisbury North. They observed the accused alone in the front yard of the property, on the driveway, next to a motorcycle. As they arrived, Officer White received a personal phone call with respect to a family emergency and claims to have been distracted by that emergency during his attendance. Officer Donaldson claims the accused told him the motorcycle was his. Officer White identified the motorcycle as the Kawasaki which had been reported as having been stolen from the Highbury home on 22 March 2017. Officer Donaldson claims the accused then attempted to explain the circumstances in which he came to be in possession of the motorcycle. Officer White did not hear either of the alleged admissions made by the accused to Officer Donaldson with respect to his possession of the motorcycle.
The accused was arrested for the illegal use of the Kawasaki. At or about this time, in response to something said by the accused, the accused’s partner came from the Salisbury North house, into the front yard, carrying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fowler

Details

AGLC: R v Fowler [2019] SADC 100
Case: [2019] SADC 100
Decision Date: 31 July 2019

CaseChat Overview and Summary

The appellant, Fowler, was charged with multiple offences including burglary, assault, and aggravated assault. The matter came before the court for appeal regarding the admissibility of certain evidence and the sufficiency of the evidence to support the convictions. The court was required to decide if the evidence was voluntary and reliable, and if it was sufficient to establish the appellant's guilt beyond reasonable doubt.

The court examined the admissibility of statements made by the appellant during police interviews and determined they were voluntary and could be used as evidence. The court also considered the reliability of identification evidence and circumstantial evidence, including motive, to determine if it was sufficient to support the convictions. The court held that the evidence was reliable and sufficient to establish the appellant's guilt beyond reasonable doubt.

The court found that the evidence established the appellant was part of a group that entered a property with intent to commit an offence and that the appellant committed assault and aggravated assault during the course of the burglary. The court rejected the appellant's argument that the evidence was insufficient to support the convictions. The appeal was dismissed.

No further orders were made.

Orders