R v Glastonbury - [2014] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GLASTONBURY
[2014] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice David and The Honourable Justice Parker)
29 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
The appellant was convicted, following a trial by jury, of two counts of aggravated robbery and one count of attempted aggravated robbery, and acquitted on the third count of aggravated robbery.
The appellant appeals against his conviction on the grounds that: the Judge erred in providing the jury with the typed addresses of counsel; the Judge failed to correct certain submissions made by the prosecutor on the credibility of an accomplice who gave evidence against the appellant after being sentenced for his offending; and that the verdicts were manifestly unreasonable.
Held (Kourakis CJ, David and Parker JJ agreeing):
There is no doubting that the jury would have understood the prosecutor’s argument to be that the accomplice Howell could not have expected to get away with giving a false account of the appellants involvement and thereby win a reduction in his sentence (Kourakis CJ at [28]). The prosecutor’s address could only have been understood as an argument in favour of the jury accepting Howell’s evidence in their role as the sole arbiters of facts in the case (Kourakis CJ at [29]).
Having regard to the onerous nature of a jury’s duties, if they request the transcript of counsel’s addresses in a long or complex trial, speaking generally and subject to any countervailing factors arising in the particular case, it should be provided (Kourakis CJ at [41]). However, before providing the transcript consideration should be given to alternative ways to assist the jury with its particular concern (Kourakis CJ at [42]). The provision of the transcript of counsel’s addresses to the jury did not cause a miscarriage of justice (Kourakis CJ at [47]).
With respect to count 3 the jury may well have entertained a reasonable doubt given the absence of any objective evidence of the appearance of the offender (Kourakis CJ at [50]).Upon reviewing the evidence as a whole, it cannot be doubted that the appellant was properly convicted on count 4 (Kourakis CJ at [52]).
Appeal against conviction dismissed.
Evidence Act 1977 (Qld) s 21AK, referred to.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Gately v The Queen (2007) 232 CLR 208; R v Taousanis (1999) 146 A Crim R 303; R v Bartle (2003) 181 FLR 1, discussed.
R v Sukkar [2005] NSWCCA 54, considered.

R v GLASTONBURY
[2014] SASCFC 44
Court of Criminal Appeal: Kourakis CJ, David and Parker JJ

KOURAKIS CJ: The appellant, Glastonbury, was charged with three counts of aggravated robbery and one count of attempted aggravated robbery. He…

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 Glastonbury

Details

AGLC: R v Glastonbury [2014] SASCFC 44
Case: [2014] SASCFC 44
Decision Date: 29 April 2014

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Glastonbury, on a charge of aggravated robbery of the Greenwith Post Office. The prosecution alleged that the robbery occurred on 10 November 2010, with the appellant being armed with a firearm. The appellant was convicted by a unanimous jury verdict.

The central legal issue before the court was whether the appellant's conviction on the aggravated robbery charge constituted a miscarriage of justice. This involved a review of the evidence presented at trial, particularly the testimony of accomplices and the directions given to the jury regarding such evidence.

The Chief Justice, Kourakis CJ, after reviewing the entirety of the evidence, expressed no doubt that the appellant had been properly convicted on the fourth count. The court noted that the trial judge had correctly warned the jury about the dangers of convicting on the uncorroborated evidence of accomplices, and that one accomplice's testimony could not corroborate another's. The Chief Justice's reasoning, which was adopted by David J and Parker J, led to the conclusion that no substantial miscarriage of justice had occurred.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The fourth count alleged the aggravated robbery of the Greenwith Post Office on 10 November 2010 on which occasion it was alleged that $1,700 was stolen. The circumstance of aggravation was that Glastonbury committed the offence whilst armed with an offensive weapon, namely a firearm. The appellant was convicted by a unanimous verdict of the jury.The evidence The appellant’s alleged accomplice in the first two counts, Howell, gave evidence for the prosecution that he committed the first two offences with Glastonbury. Howell denied that he had any involvement in the offences charged in the third and fourth counts. The prosecution also relied on the evidence of another witness, Sarah Evans. Evans was Howell’s girlfriend. She testified of conversations she heard between Glastonbury and his girlfriend Yeates, in a flat on Wilkins Road which she shared with Yeates, in which they discussed robbing the Blockbuster video store. Evans gave evidence that they left the flat and later returned with the proceeds of a robbery. The Judge directed the jury that both Howell and Evans should be regarded as accomplices. The Judge warned the jury that it is dangerous to convict on the evidence of an accomplice unless it is corroborated and that one accomplice cannot corroborate the testimony of another. The Judge also warned the jury that even if they found that there was corroborative evidence it remained necessary for them to examine the evidence of Howell and Evans with care. There is no complaint about the accomplice warning. It is necessary to set out the prosecution evidence on each count in some detail. The prosecution adduced both real evidence in the form of CCTV footage and testimonial accounts of the robbery of the Elizabeth Vale Post Office on 8 November 2010. One of the offenders wore a light coloured hooded top and baseball cap and was holding a crossbow. The prosecution case was that that was Glastonbury. The other offender was wearing a green top, had a ski mask over his face and was holding a sawn off rifle. Howell testified that he was that offender. The robbers escaped in a silver Holden commodore sedan with registration plates that started with the letters “BB”. Howell’s evidence was that he went to the Wilkins Road flat on the morning of the robbery after receiving a call from Yeates. He was there introduced to Glastonbury by Yeates. It was the first time they had met. He testified that he joined in a plan to rob the Elizabeth Vale Post Office that morning. They each took a shopping bag from the Wilkins Road flat and then drove to Howell’s residence at Mainwaring Crescent where he collected a green jumper, a balaclava, a glove and a firearm. Howell said that they used his car for the robbery. Howell testified that after the robbery they returned to the Wilkins Road flat where the money was counted and divided. Howell said that he sold the firearm used in the Elizabeth Vale robbery to Glastonbury on that morning for $300. Howell gave evidence that Glastonbury took the firearm and crossbow into Yeates’ bedroom. Howell returned to Mainwaring Crescent and used his share of the proceeds to buy food and drugs.

Decision

Reasons for decision

On a review of the evidence as a whole, I do not doubt that the appellant was properly convicted on count 4.Conclusion I would dismiss the appeal. DAVID J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ. PARKER J: I would dismiss the appeal. I have nothing to add to the reasons of Kourakis CJ.

Ratio Decidendi

Legal Principle Established

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