R v Harding - [2012] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARDING
[2012] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
2 August 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
Appeal against conviction – appellant found guilty by a Judge sitting alone of one count of robbery contrary to s 137(1) Criminal Law Consolidation Act 1935 (SA) – case against appellant based on circumstantial evidence – central issue at trial was one of identity – whether the verdict was unreasonable and could not be supported having regard to the evidence.
Held: appeal allowed – conviction set aside – verdict of not guilty entered – on the objective evidence as presented, a trier of fact must have entertained a reasonable doubt as to the appellant’s guilt.
M v The Queen (1994) 181 CLR 487, applied.

R v HARDING
[2012] SASCFC 91
Court of Criminal Appeal: Nyland, Anderson and David JJ

NYLAND J: I agree with the reasons of David J and would set aside the verdict and enter a verdict of not guilty.
Having compared the CCTV footage of the person who was agreed to be the robber with the photographs of the appellant, I am left with a reasonable doubt that they are of the same person. I also consider that the footage on the CCTV which shows the robber swinging his bag backwards and forwards is inconsistent with being the appellant who had suffered an undisputed and serious fracture to his hand and which required surgical intervention the day following the robbery.
Although there are aspects of the evidence which raise a suspicion of guilt, in my opinion they are insufficient to establish proof beyond reasonable doubt.
ANDERSON J: In this matter I agree with David J and I would set aside the verdict and enter a verdict of not guilty.
Since viewing the CCTV footages in court I have reviewed some of that footage and also considered the still photographs taken from that footage.
I agree with David J that it is impossible to say whether the person depicted in the respective footages is the same person. That being the case there is in my view a reasonable doubt on the evidence. There is in my view a reasonable possibility that the footages are of two different people.
DAVID J: After a trial by Judge alone the appellant was convicted of the offence of robbery. He now appeals against that conviction on the ground that the verdict was unreasonable and could not be supported having regard to the evidence.
At his trial there was no dispute that the victim was robbed. The issue was whether it had been proved beyond reasonable doubt that it was the appellant who was the robber. The…

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 Harding

Details

AGLC: R v Harding [2012] SASCFC 91
Case: [2012] SASCFC 91
Decision Date: 2 August 2012

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant, Harding, against his conviction by a judge sitting alone for one count of robbery under section 137(1) of the *Criminal Law Consolidation Act 1935* (SA). The prosecution's case was based entirely on circumstantial evidence, with the central issue at trial being the identity of the offender.

The primary legal issue before the Full Court was whether the verdict of guilty was unreasonable and could not be supported having regard to the evidence presented at trial.

The Court reasoned that the prosecution's case relied on the appellant being in the vicinity of the city on the morning of the offence, walking his dog off-leash, and having a similar appearance to the robber. While these facts might have raised a suspicion of guilt, the Court concluded that, on the objective evidence presented, a trier of fact must have entertained a reasonable doubt as to the appellant's guilt. Consequently, the appeal was allowed, the conviction was set aside, and a verdict of not guilty was entered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This left the prosecution case really relying upon the fact that the appellant was in the vicinity of the city on the morning in question, he does walk around with his dog not on a leash, and he is of similar appearance to the robber. This leads me to a deep suspicion that he may be guilty of this offence. However, on the objective evidence as presented, a trier of fact must have entertained a reasonable doubt as to the appellant’s guilt.Conclusion I would set aside the verdict and enter a verdict of not guilty.

Ratio Decidendi

Legal Principle Established

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