R v Hards; R v Hards; R v Wilckens - [2018] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARDS; R v HARDS; R v WILCKENS
[2018] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
13 December 2018
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeals against conviction – appellants charged with aggravated causing harm – one appellant further charged with property damage – where the three appellants were father, son, and a friend of the son – appellants contended that this was a case of mistaken identity – where complainant recognised one of the appellants from having seen photos of him previously on Facebook and Instagram and at a party, and positively identified the other two appellants from photo identification packs – where independent witnesses positively identified one of the appellants from photo identification packs with varying degrees of certainty – where the photo identification packs were edited to include tattoos – whether the Judge erred in admitting identification and recognition evidence – whether the Judge failed to direct the jury properly – whether the verdicts were unsafe and unsatisfactory.
Held, per Bampton J (Kourakis CJ and Stanley J agreeing) dismissing the appeal:
1. The Judge did not err in admitting the identification and recognition evidence (Strauss v Police and R v Crawford distinguished);
2. The Judge’s directions were sound;
3. It was open to the jury to convict each of the three appellants.
Per Kourakis CJ (Stanley J agreeing):
1. The evidence of identification given against each appellant was cross-admissible against the others because of their relationship to each other.
R v Deering (1986) 43 SASR 252; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487, applied.
R v Crawford (2015) 123 SASR 353; Strauss v Police (2013) 115 SASR 90, distinguished.
Alexander v The Queen (1981) 145 CLR 395; Festa v The Queen (2001) 208 CLR 593; Domican v The Queen (1992) 173 CLR 555; R v Dickman (2017) 261 CLR 601; R v Kearney [2013] SASCFC 148; R v Sparrow (2009) 104 SASR 320, considered.

R v HARDS; R v HARDS; R v WILCKENS
[2018] SASCFC 132
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: I would dismiss the appeal. I agree with the reasons given by Bampton J. I gratefully adopt the summary of the evidence in her Honour’s judgment.
I add the following.
Appeal by Dylan Hards
The steps in Mr Oakes’ identification evidence of Dylan Hards as the man who attacked him with a machete were as follows:
·the man…

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 Hards; R v Hards; R v Wilckens

Details

AGLC: R v Hards; R v Hards; R v Wilckens [2018] SASCFC 132
Case: [2018] SASCFC 132
Decision Date: 13 December 2018

CaseChat Overview and Summary

The appeals concerned convictions for aggravated causing harm, with one appellant also convicted of property damage. The three appellants, David Hards (father), Dylan Hards (son), and Billy Wilckens (son's friend), contended that the case was one of mistaken identity. The complainant recognised Dylan Hards from social media and a party, and identified David Hards and Billy Wilckens from photo identification packs. Other witnesses also identified David Hards from photo identification packs with varying degrees of certainty. The appeals were heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Bampton JJ.

The central legal issues before the court were whether the trial judge erred in admitting the identification and recognition evidence, whether the judge failed to adequately direct the jury on the relevant legal principles, and consequently, whether the verdicts reached by the jury were unsafe and unsatisfactory. The court was required to consider the reliability of the identification evidence, particularly in light of discrepancies in witness descriptions and the editing of photo identification packs to include tattoos.

The court dismissed the appeals, finding that the verdicts were not unsafe or unsatisfactory. The reasoning involved an assessment of the totality of the evidence, which included not only the identification evidence but also evidence of motive, words spoken by an assailant, the familial and friendship relationships between the appellants, the presence of Dylan Hards' vehicle at the scene, and the discovery of weapons consistent with witness descriptions in Billy Wilckens' car. The court implicitly found that the trial judge's directions to the jury were sufficient, and that the jury was entitled to accept the identification and recognition evidence presented by the prosecution, despite the acknowledged differences in descriptions and the editing of the photo packs. The court concluded that the grounds of appeal lacked merit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Oakes believed that he may have been attacked by four assailants but he could not be sure. Other witnesses only referred to three. On appeal, the Director acknowledged that there were differences in the descriptions given by the various witnesses of the three men and aspects which were not correct. It was submitted that the three men were, however, generally described in terms consistent with the appellants’ appearances and, in particular, witnesses spoke of one of the appellants being older than the other two. David Hards is older than Dylan Hards and Billy Wilckens.The evidence relied on by the prosecution The evidence relied on by the prosecution included:1Evidence of motive on the part of Dylan Hards (and indirectly his father and friend to support him). It was alleged that the attack was in retribution for Mr Oakes having had a sexual relationship with Dylan Hards’ girlfriend.2The words spoken by the man with the machete which tended to identify the attacker. Mr Oakes gave evidence that the man who struck him with the machete said, “you want to fuck my missus” immediately before striking him.3The fact that David Hards and Dylan Hards were father and son.4The fact that Dylan Hards and Billy Wilckens were friends.5Mr Oakes’ recognition of Dylan Hards as a person he had previously seen on Facebook and Instagram and at his cousin’s 21st birthday party.6Mr Oakes’ selection of photos of David Hards and Billy Wilckens from photo identification packs.7The selection by witnesses to the attack and its aftermath of photos of David Hards from photo identification packs.8Evidence that Dylan Hards’ vehicle was at the scene.9Evidence that Billy Wilckens had been in Dylan Hards’ vehicle.10Evidence of a baseball bat and a metal pole located in Billy Wilckens’ car on 9 March 2016 which were consistent with some of the descriptions given by witnesses of the weapons.11Evidence that Billy Wilckens and Dylan Hards had been in contact by phone earlier during the day of the attack and then not at all during the timeframe in which the offence was committed. I now turn to consider each of appealsThe case against David Hards Mr Oakes described the man alleged to be David Hards as older, with a long mullet, a long, grey goatee, and a few tattoos around his face and arms. He had a bit of a beer gut and “would have been no taller” than Mr Oakes.[15] He later identified him as David Hards. It was not disputed that David Hards has tattoos on his face and is shorter than Mr Oakes.[15] Mr Oakes is 173 cm tall. Mr Oakes was assaulted in daylight. He saw his attackers as he stepped out of his car. He could not observe them while he was on the ground, as he was covering his face. He observed them as they chased him down the street, and from the roof of the unit for one to one and a half minutes. Mr Oakes described one of the offenders as “Caucasian, late 30s early 40s … about 175 centimetres tall, he had a beard with a mullet, his hair colour was brown with a bit of grey”.

Decision

Reasons for decision

I would dismiss ground 3.Conclusion I would dismiss all grounds of appeal.

Ratio Decidendi

Legal Principle Established

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