R v Griffiths - [2007] SASC 315

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GRIFFITHS
[2007] SASC 315
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Layton)
24 August 2007
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - GENERALLY
Appellant acquitted of aggravated serious criminal trespass in a place of residence - appellant convicted of threatening to cause harm and common assault - appellant alleged to have broken into a house and assaulted complainant with a gun - identification of the appellant and evidence of a gun were main issues of the case - appellant argued verdicts inconsistent - appellant contended reasonable doubt existed as to the presence of a gun - respondent argued that other explanations for reasonable doubt existed and verdicts were not inconsistent.
Held: verdicts not inconsistent - jury had a basis for reasonable doubt other than the issue of a gun.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 39 and s 170(2), referred to.
R v Kirkman (1987) 44 SASR 591, considered.

R v GRIFFITHS
[2007] SASC 315
Court of Criminal Appeal: Doyle CJ, Anderson and Layton JJ

DOYLE CJ: I would dismiss the appeal against conviction, for the reasons given by Anderson J.
As Anderson J explains, the discrepancies between the complainant’s description of Mr Griffiths, and his actual appearance, were matters to be considered by the jury. There is no basis for suggesting that they were such that the jury could not be satisfied of guilt beyond reasonable doubt, when all of the evidence was taken into account.
As to the suggested inconsistency in the verdicts, there were a number of bases upon which the jury might not have been satisfied of Mr Griffiths’ guilt on count 1, but might have been satisfied of his guilt on the other two counts. Anderson J has identified these bases.
I agree with Anderson J that the submission on appeal in effect asks this Court to substitute its view of the facts for that of the jury.
ANDERSON J.
Introduction
The appellant was charged with three offences for which he was tried in the District Court. The first offence was an aggravated serious criminal trespass in a place of residence contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (“the Act”). The particulars of the offence alleged in the information are that the appellant, on the 9^th day of November 2005 at Bute, while in possession of an offensive weapon, namely, a rifle, entered or remained in a place of residence of the complainant as a trespasser, with the intention of committing an offence therein, namely, assault. The appellant was acquitted by the jury on that count.
The second count was threatening to cause harm contrary to s 19(2) of the Act. The particulars of that offence are that the appellant, on the 9^th day of November 2005 at Bute, without lawful excuse, threatened to cause harm to the complainant, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused. The jury convicted the appellant on that count.
The third count was of common assault contrary to s 39 of the Act. The particulars of that offence are that the appellant on the 9^th November 2005 at Bute, assaulted the complainant. The appellant was convicted on this count.
Background
As part of the background of this matter it should be appreciated that the Township of Bute comprises a small, tight-knit South Australian community. Many of the parties involved either knew or knew of each other. For example, both the complainant and her partner knew the accused from several meetings they had with him in the months preceding the night in question. Witnesses at the Bute Hotel who saw the accused there after the incident were his neighbours and the complainant’s mother was familiar with the accused through her relationship with his mother. Furthermore, the complainant’s mother lived approximately 600 metres down the road from the complainant’s house. This aspect of the community was summarised by the witness Gregory O’Connor, a neighbour of the appellant, who said in his testimony that “in a town like Bute you know everybody”.
The appellant is alleged to have broken into the home occupied by the complainant by kicking the back door open and then threatening her with a rifle. It is alleged that he pushed her up against a cupboard and struck her on the head. During this time he was apparently asking, “Where are the guns?”
It was alleged at the trial that the appellant’s motive for the attack was a running dispute with the complainant’s partner over a transaction involving mag wheels for a car. The appellant had complained that on the day before the offence, the complainant’s partner had shot at him up the driveway of the appellant’s mother’s house.
The appellant had met the complainant on four or five occasions prior to the incident. This was not disputed by the complainant. She gave a description of her attacker that was inconsistent with the appellant’s appearance. The key difference was that the complainant described the man who assaulted her as clean shaven. However, at the relevant time, the appellant wore a goatee beard. In her description to the police she also stated he had browny hair but described it as fair hair under cross-examination. The complainant told the police after the incident that her attacker drove a light blue Commodore vehicle. She also pointed him out in court as the person who attacked her.
The appellant denied having been at the complainant’s residence at the time of the incidents, and he also denied ever owning a gun. Searches were carried out in various places but no gun was discovered. Some paraphernalia relating to guns, including scopes and ammunition, were found in the appellant’s vehicle but the appellant explained them as belonging to a friend of his with whom he went shooting. He said that he had recently applied for a gun licence so that he could go hunting with that friend.
The appellant was arrested when the police discovered him near the scene. Following the incident at the complainant’s house, police were outside the complainant’s property when they noticed a car being driven towards them with its lights on. It pulled up down the road in front of a house belonging to the complainant’s mother at which point the lights of the car were turned off. Police officers then approached the vehicle (a maroon Commodore) and interviewed the occupants. The person sitting in the driver’s seat was the appellant’s mother, who was in the car with the appellant. A search of the vehicle revealed black gloves and several bullets. At this point police arrested the accused. This led to a search of his property, where a light blue Commodore was then located. This vehicle matched the description the complainant had earlier provided of the car driven from the scene by her attacker. Other items, such as the tyres from the light blue Commodore and footwear worn by the accused, were also linked to the scene.
The issues on appeal
The issues raised by Mr Stokes, counsel for the appellant, during the appeal by way of his detailed written outline and in his oral submissions, were as follows:
1.     The jury verdict of not guilty to count 1 is inconsistent with the verdict of guilty to count 2.
2.     That in order to return a verdict of not guilty on the first count, the jury must have had a reasonable doubt about the presence of a gun. Given that the jury doubted the evidence of the complainant in relation to that aspect, Mr Stokes argument was that she should be doubted generally in relation to her credibility and reliability.
3.     The jury ought to have entertained a reasonable doubt concerning the complainant’s recognition evidence. The jury should not have relied upon the evidence of the complainant in relation to this evidence.
The response from the Director of Public Prosecutions was that if the evidence of the complainant was accepted it demonstrated that the appellant had been to her house on at least four occasions before the occasion in question. On each occasion when he had been there previously the appellant had entered the house through the back door with the consent of the appellant. On this occasion he entered through the back door after he kicked open the door.
Mr Preston for the Director argued that on the first count, because of the directions of the trial judge, it was open to the jury to acquit if they had a reasonable doubt about the appellant entering or remaining on the premises as a trespasser. Likewise he submitted that it was open for the jury to acquit because there was a reasonable doubt as to whether the appellant had the intention to assault the complainant when he entered her premises.
Recognition evidence
In my view, whilst the description given by the complainant did not match that of the appellant, there was ample evidence before the jury to enable the jury to find that it was the appellant who committed the offences. At the time of his arrest the appellant owned a light blue Commodore, which the complainant had described as the type of car driven by her attacker as he left her house. There was also the additional evidence from the complainant’s mother that the appellant went to the complainant’s mother’s house not long after the incident and described an incident in which he said he had assaulted the complainant, although there was no suggestion that there was a gun involved. The complainant’s mother said that the appellant told her, “I tried to work it out with your daughter and Troy and I’m sorry I’ve hit your daughter over the head, you better go down and see her”.
It is my view that there is no basis on which this aspect of the appeal can succeed. There was evidence capable of proving that it was the appellant who committed the offence.
Inconsistent verdicts
In relation to the inconsistent verdicts argument, it is my view that whilst at first instance it may appear that the verdicts are inconsistent, upon a closer examination of the way in which the trial proceeded and the way in which the matter was summed up by the trial judge, there is no room for that view.
The learned trial judge summed up in relation to the elements of the first count by directing the jury that there were five ingredients of the offence. I will summarise His Honour’s summing up on the ingredients.
1.     There must be a place of residence.
2.     The accused entered or remained in that place of residence.
3.     The accused did so intentionally as a trespasser, that is, without the consent of the occupier, knowing that he did not have the consent of the occupier.
4.     At the relevant time of entry into the premises and therefore of the trespass, the accused intended to commit an offence.
5.     The aggravating factor was that the trespass was committed by the appellant who was in possession of an offensive weapon.
Mr Stokes argued that the verdict of not guilty on the first count must mean that the jury had a reasonable doubt about the appellant’s possession of the gun. However it is my view that there are other reasons, unrelated to the gun, upon which the jury may have entertained a reasonable doubt.
The trial judge’s summing up on the necessary ingredients of the first count, in my view, left it open to the jury, in relation to the second, third and fourth ingredients of the offences to acquit if there was a reasonable doubt in relation to those elements.
The fourth ingredient of the first count, as put by the trial judge to the jury, is that at the relevant time of entry into the premises the appellant intended to commit an offence. The jury may well have considered that it had not been proved beyond reasonable doubt that the appellant had any intention to commit an offence when he entered the premises. He may simply have been there to put pressure on the complainant or her boyfriend regarding the running dispute over the mag wheels, or the shooting incident at the accused’s mother’s house the previous day. The jury might have thought that the accused was there because he was looking for guns, which the accused’s friend Mr Bowman said had been stolen from him. Mr Bowman and the accused were friends at the time and had been known to go hunting together using Mr Bowman’s guns.
In summing up to the jury, the trial judge introduced the second ingredient in the correct terms of “entering or remaining” in a place of residence, but then proceeded to use this phrase interchangeably with “entering and remaining” in other parts of the summing up. The latter has a narrower scope than the former.
Given the narrower formulation, the jury may not have appreciated the difference between entering on the one hand and remaining on the other. They may have reached the conclusion that the appellant, at the time of entering the premises, had permission to do so because of his previous visits to the premises. At that point, they might have thought that not all of the relevant elements of the offence could be established beyond reasonable doubt. That may explain the verdict of not guilty on the first count.
Mr Preston for the respondent submitted that it was this narrow summing up by the trial judge of the ingredients of the first count that may have allowed the jury to entertain a reasonable doubt as to whether the accused entered the house as a trespasser. He argued that if they had such a doubt, then that would be consistent with a finding of not guilty on the first count. In my view, this is the answer to Mr Stokes’ submission that the only reason the jury had for entertaining reasonable doubt was the issue of the presence of a gun.
What Mr Stokes is effectively asking the appeal court to do is to go into the jury room and examine what considerations must have taken place to enable the jury to reach the verdicts that they did. As King CJ said in R v Kirkman (1987) 44 SASR 591, even though jury verdicts may be supported by evidence, they will not necessarily follow along strict logical lines. Juries have their own way of dealing with cases. Mr Preston argues that the result was a logical result, and as I have said, when one examines the elements of the offence on which the appellant was acquitted, it is apparent that on the trial judge’s summing up the jury (aside from the question of the possession of the gun) could well have decided there was reasonable doubt in relation to the other ingredients of the first count.
Conclusion
In my view, the verdicts are not inconsistent and I would dismiss the appeal on that ground as well.
Therefore I would dismiss the appeal on both grounds.
LAYTON J: I consider the appeal against conviction should be dismissed and I agree with the reasons of Anderson J.
In addition, I emphasise the following in relation to identification evidence.
It was conceded that this case was essentially a “recognition case”. A major argument on appeal was that, having regard to the description given by the complainant, the jury ought to have entertained a reasonable doubt about the recognition or identification of the appellant as being the alleged offender.
The complainant’s evidence as to the description of the appellant, which was given at trial some 17 months after the alleged offence, was as follows:
Q.Can you describe the man who walked in.
A.Yes.
Q.How tall was he.
A.He was taller than me. I’m not exactly sure how tall, but fairly tall.
Q.How tall are you.
A.I’m only short, about 5 feet.
Q.Approximately how old was the person.
A.He’s around 26, or was.
Q.Can you describe his hair.
A.It was fair.
Q.Was his hair long or short.
A.Short.
Q.Did he have any facial hair.
A.No.
Q.What sort of complexion did he have.
A.White.
Q.What about his build.
A.Slim build.
Q.What about his clothing.
A.He had a white T-shirt on which had writing written on it.
Q.What colour was the writing.
A.Black writing. He had jeans and sneakers.
Q.And he was carrying something.
A.Yes, he was carrying a rifle.
Q.Was this a person that you recognise.
A.Yes.
Q.What, back then, did you know his name to be.
A.Jarrod.
Q.How did you know it was Jarrod.
A.I’d seen him before.
Q.How many times have you seen him before.
A.Probably about four or five times.
Q.Had you spoken to him on those previous occasions.
A.Yes.
Q.Where was it that you saw him.
A.I’d seen him at my property and at my mum’s.
Q.How many times had you seen him at your property.
A.Be about four times.
Q.And had he been inside the house on your property previously.
A.Yes.
Q.About how many times.
A. Probably the same.
This evidence was again read out by the trial Judge in his summing up.
The trial Judge also reminded the jury of the following evidence given by the complainant during cross-examination on the appellant’s description:
Q.Can I turn to another matter, your description of Mr Griffiths. You said he was around 26; is that right.
A.26 years, yes.
Q.And you describe his hair as fair.
A.Yes.
Q.Is that right.
A.He had blond tinges through it at the time, yes.
Q.Blond tinges are blond tinges but what -
A.Fair hair, fair-looking hair.
Q.Anything like the colour he has now.
A.No, he has a lot darker hair now.
Q.So it was fair not brown, I mean, is that right.
A.Yes.
Q.You see, you described it to the police, didn’t you, as browny hair.
A.He has got browny coloured hair but he had blond tinges throughout the top of it at the time, fair looking.
Q.How does his hair length now compare to the hair length when he turned up on your doorstep in November 2005.
A.Not much difference.
Q.Not much difference.
A.He had short hair back then, too.
Q.And clean-shaven.
A.Clean-shaven.
Q.Your description of him to the police I think was that he was about 24; is that right.
A.He may have been, yes. I’m not exact on his age. I have actually gone by what they have told me.
Q.Are you saying the police gave you some help with the description, did they.
A. At the time when at the - when they arrested him, he told me the age.
The Judge in his summing up adverted to the problems of identification evidence. He also indicated that mistakes in recognition are sometimes made, and that the jury should closely examine the complainant’s evidence.
It is evident from the above excerpts that there were a number of identifying features given by the complainant in her evidence as to the appearance of the intruder whom she identified as the appellant. She gave a broad description of his height, approximate age, that his hair was short, he had a white complexion, of slim build, he was wearing a white t‑shirt with writing on it, and jeans and sneakers. In addition, she gave evidence about his hair colour which at the trial she said was fair and that he did not have facial hair. It is these two aspects which are singled out as indicating such unreliability of identification that there should be a reasonable doubt about the complainant’s recognition of the appellant.

Photographs were taken of the appellant on the night of the offence, being Exhibits D4 and D8. These photographs depict the appellant as having dark coloured hair and a goatee beard. Otherwise the other descriptions are not challenged as being contradictory with the appearance of the appellant on the night.
The complainant’s initial description to the police was that the appellant had browny hair, which is consistent with the photographs of him in Exhibits D4 and D8. It is only her evidence at trial of his hair being “fair” or “fairish or with blond tinges”, which appears to contradict the photographs. There was no cross-examination as to what she said, if anything, to the police on the topic of whether the intruder had facial hair. Therefore her remembrance of the intruder being clean-shaven is her recent evidence at trial, 17 months after the event.
Bearing in mind that the complainant’s evidence, if accepted, was that she had seen the appellant on about eight previous occasions, these recent different remembrances of two specific features do not have the same significance as if she had never seen the appellant before.
All of these identification matters were plainly before the jury. In relation to the goatee beard, the trial Judge reminded the jury of the complainant’s evidence that she may not have seen the goatee as she was under a lot of stress at the time. Further, the complainant’s evidence was not the only evidence which implicated the appellant as being the intruder. There was the important additional element set out by Anderson J in his reasons, being a telling conversation between the appellant and the complainant’s mother.
I agree with Anderson J’s conclusion that there was admissible evidence which was capable of proving that the appellant was the person who committed the offence.