R v JONES - [2007] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v JONES
[2007] SASC 233
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice Layton)
25 June 2007
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appeal against conviction - appellant convicted by a jury of robbery following a trial in the District Court - whether the trial Judge adequately directed the jury on circumstantial evidence and expert evidence - whether the conviction was unreasonable and could not be supported by the evidence - Held: there was no error in the trial Judge's directions on circumstantial evidence or expert evidence - the verdict was reasonable and supported by the evidence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137, referred to.
Shepherd v The Queen (1990) 170 CLR 573; Middleton (2001) A Crim R 258, considered.

R v JONES
[2007] SASC 233
Court of Criminal Appeal: Nyland, Anderson and Layton JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Layton J. I have nothing further to add.
ANDERSON J: I agree that the appeal should be dismissed for the reasons expressed by Layton J.
LAYTON J:
Introduction
On 5 December 2006, the appellant was convicted by a jury of the offence of robbery.[1] The appellant now appeals against that conviction on three grounds: First, that the trial Judge failed to adequately direct the jury on the issue of circumstantial evidence; second, that the conviction was unreasonable and cannot be supported having regard to the evidence; and third, that the trial Judge failed to give any or any adequate direction to the jury on the issue of expert evidence.
[1] Criminal Law Consolidation Act 1935 (SA) s 137.
The jury verdict followed a trial in which the evidence included five eye-witnesses, a Forensic Scientist, Dr Both, and Senior Constable Todd.
The Prosecution Case
The prosecution case was that a man had approached the victim in her car at the Ridleyton Shopping Centre car park, and after attempting to remove her from her car, stole her wallet from inside the car. This man then ran out of the car park and down South Road. The victim gave evidence that she chased the man who had robbed her, and when she was chasing him, she saw that the man was not wearing any shoes. When she returned to her car, she saw a pair of thongs or sandals next to her car, which were not there before.
The trial
Identity evidence
The primary issue at trial was identity. The prosecution case was that the man who took the wallet was the appellant, and that he had been wearing the sandals at the time of the robbery. The prosecution relied on the identification evidence of five eye-witnesses, and on the DNA evidence given by Dr Both. The eye-witnesses’ descriptions were very general, and standing alone, were of little assistance. The prosecution relied most heavily on Dr Both’s evidence, which was to the effect that the DNA profile on the sandals matched that of the appellant, and it is greater than a billion times more likely that the appellant was the source of the DNA, than an unrelated male. Dr Both also said that only one DNA profile was recovered from the sandal, and that it would be most unusual in this case not to get a mixture of DNA if someone other than the appellant had worn the sandals.
The appellant gave evidence and admitted that the sandals probably belonged to him, but denied that he was wearing them at the Ridleyton Shopping Centre on the day of the robbery. The appellant said that he had been involved in a car accident in September 2004, at a location close to the shopping centre. He said that following the accident a lot of his personal items were strewn across the road, and that when he got his car back a number of items were missing. The defence suggested that the sandals may have been taken by someone at the time of the accident, and worn by that person or another person at the time of the robbery.
Alibi evidence
The appellant also gave alibi evidence of having been at, or on his way to, the Christies Beach Magistrates Court at the approximate time of the offence. He said he left the house of Ms Raelene May where he had stayed the previous night, at about 10:05am or 10:10am. He said that it took about 15 or 20 minutes to walk to the Court and he was told on his arrival at about 10:30am, that a warrant was going to be issued for his arrest. Ms May also gave evidence that the appellant had stayed overnight at her house sometime between November 2004 and January 2005, and that he left her house for Christie’s Beach at about 10:30am or 11:00am.
The prosecution called evidence to rebut the alibi. Evidence was given by Senior Constable Todd, the prosecutor managing the General List at the Christies Beach Magistrates Court on the relevant morning. In summary, Senior Constable Todd gave evidence of the usual practice of the Court concerning the listing of matters and the practice of dealing with non-attendance of defendants. He said that if the appellant had attended between 10:00am and 11:15am, he would not have made an endorsement on the file stating that a warrant was to issue for the appellant’s arrest as a result of his non-attendance. I will refer to the Senior Constable’s evidence again in more detail, later in these reasons.
Prosecution witnesses gave differing evidence about when the robbery took place. The victim, Ms Anh Phan, said about 7:15am; her brother Anthony said after about 9:45am; Ms Agius said about 8:30am; and Mr Bui said sometime after his arrival at the shopping centre, which was between about 9:30am and 10:00am. Constable Kummeron said he received a call to attend the shopping centre at about 10:00am.
The trial Judge in his summing up suggested to the jury that they may think that Ms Anh Phan was mistaken and that the other witnesses put the time between 9:30am and 10:00am. The appellant did not dispute this as an accurate summing up to the jury.
Circumstantial Evidence
The prosecution relied entirely upon circumstantial evidence in proving that the identity of the offender was the appellant. This consisted of the eye-witnesses’ descriptions; the evidence of one witness that the offender had been wearing sandals; the evidence of other witnesses that the offender was barefoot when he escaped; the finding of sandals at the scene; and DNA evidence as to the likelihood of those sandals having been worn by the appellant and not by somebody else at the time of the offence.
The trial Judge identified each of the items of circumstantial evidence, and gave the following directions:
Where the Crown depends upon circumstantial evidence in a Trial, then the circumstantial evidence is sometimes likened to a rope. A rope has the combined strength of all of its strands. Some of the strands may be strong and some may be weak. When they are all twined together, they produce the total effect and strength which is greater than the strength of any one of its strands. The weight of the Crown case on identity depends upon the combined strength of all of the facts that are proved to you.
You need to understand that before you can convict the Accused you need to be satisfied beyond reasonable doubt, on the circumstantial evidence as presented to you by the Crown, that the man in the car park who took the wallet was the Accused.
It is important to understand that your approach to circumstantial evidence in this case requires two steps.
First, you must look at the facts upon which the Prosecution relies as circumstantial evidence and decide which facts you accept as established on the evidence. Then, you must consider what inference or inferences you are prepared to draw from those facts. This step requires you to consider the combined strength of the established facts. To return to the analogy of the rope, when all the established strands are twined together, they produce a strength which is the combination of the individual strands.
Remember, the inferences drawn must be the only rational inference or inferences which the established facts enable you to draw. You cannot find the Accused guilty unless the facts exclude any reasonable explanation consistent with innocence. In other words, if you find there is a reasonable hypothesis consistent with innocence it would be your duty to acquit the Accused.
Counsel for the appellant, Miss Davey, submitted that this direction was inadequate in the circumstances of the case, for two reasons: First, because the metaphor of “strands in the rope” was inappropriate, as it was instead a case of “links in a chain”, each link being indispensable. Second, it was submitted that the directions did not specifically identify the intermediate fact, which constituted an indispensable link in the chain of reasoning towards an inference of guilt. That intermediate fact was identified as: “that the accused was the wearer of the sandal at the time of the offence”. It was submitted that proof of this fact beyond reasonable doubt was essential to an inference of guilt, and that this could only be proved by an inference arising from the DNA evidence. It was submitted that this should have been pointed out in a direction to the jury.
DNA Evidence
Miss Davey argued that the “strands in the rope” metaphor used by the trial Judge was inappropriate in this case, as the DNA evidence was in fact the only evidence from which such an inference could be drawn. Miss Davey argued that instead the jury should have been directed that they had to be satisfied beyond reasonable doubt that the appellant was the wearer of the sandals, and that this was the only rational inference to be drawn from the DNA evidence. Miss Davey referred to the judgment of Dawson J in Shepherd v The Queen (1990) 170 CLR 573, where his Honour said at 585:
Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt….
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in the chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.
Miss Davey contended that this was a case in which there was an indispensable, intermediate step in the reasoning process towards an inference of guilt, and that this fact should have been identified by the trial Judge.
Further, Miss Davey submitted that the directions on the DNA evidence were inadequate in that the trial Judge did not repeat the evidence of Dr Both as to the factors which influenced whether DNA would be recovered from the sandals. These factors included whether the wearer is a non-shedder or an excess shedder, how long and how tightly the sandals were worn, whether the wearer was wearing socks, and whether he or she was sweaty. Miss Davey argued that this evidence should have been included in the trial Judge’s summing up, to put into context Dr Both’s evidence about the likelihood of another wearer of the sandals. Miss Davey went as far as to say that two whole pages of Dr Both’s evidence should have been read to the jury.
Mr Hinton QC, who appeared for the respondent, submitted that it was not for the Judge to identify a “stand out item” requiring particular direction, but rather this was a matter which should be left to the jury as to the weight of a particular piece of circumstantial evidence. Mr Hinton argued that to give the directions suggested by Miss Davey, the Judge would have essentially engaged in a “Wigmorian” analysis of the possible inferences that could be drawn from particular facts. Mr Hinton suggested that to do so would encroach too far into the role of the jury. It was argued that in this case there was a combination of evidence before the jury, and that it was for the jury to decide what weight it should give to each piece of evidence, and what inferences may be drawn from any findings of fact.
Further, there is some strength in Mr Hinton’s argument that the issue was not whether the appellant was wearing the sandals. Since the appellant admitted that the sandals belonged to him, the issue was not whether or not the plaintiff’s DNA was on the sandals, but rather whether the absence of any other DNA excluded another wearer of the sandals at the time of the robbery. The DNA evidence therefore needed to be looked at in a context, including the combination of evidence as identified by the trial Judge. Firstly, the descriptions given by the eye-witnesses, albeit varied and general in nature, were largely consistent with the appellant’s appearance. Then, there is the fact that a robber left sandals at the scene, and that those sandals were the sandals which the appellant said he had potentially lost some four months earlier in that same area. Finally, the DNA evidence as to the likelihood of the appellant, or any other person, having worn the sandals.
This is the evidence, the combination of which was specifically directed to the issue of whether or not the appellant was the robber. I agree with Mr Hinton’s conclusion that it was for the jury to consider what weight to give to the various aspects of the evidence, and to decide what inferences could be drawn from the facts they found proved beyond reasonable doubt.
There may be occasions when an item of circumstantial evidence of itself is so significant that it might warrant a particular direction. However, in this case I consider that the trial Judge accurately and appropriately summarised the effect of Dr Both’s evidence. In particular, his Honour said:
The final item of circumstantial evidence relied upon by the Crown is the evidence of Dr Both that it would be most unusual in this case not to get a mixture of DNA if someone other than the Accused had worn the sandals. It was Dr Both’s evidence that the only DNA profile located on the tape lift matches the DNA profile of the Accused on the reference sample taken from the buccal swab.
Dr Both’s evidence did not go so far as to exclude the possibility that if another person wore the sandals, that person may have not left any DNA on the sandal. Her evidence was it would be most unusual in the circumstances in this case that if someone else had worn the sandals, for that person not to have left some DNA on the sandal.
It was not necessary in my view to go further and go through the particular evidence of Dr Both as Miss Davey suggested.
In summary on this point, I consider that the trial Judge in his summing up, appropriately directed the jury as to the use of inferences, and made it clear that any inference of guilt must be the only reasonable inference to be derived from the particular facts. I do not consider that it was necessary or appropriate for the Judge to specifically identify the inferences which could be drawn from the DNA evidence standing alone. There was no error in the direction on circumstantial evidence.
Unreasonable Verdict
The second ground of appeal was that the errors in relation to circumstantial evidence, combined with the inadequacy of directions in relation to Senior Constable Todd’s evidence, meant that the verdict was unreasonable. It was argued that, when viewed in light of the directions which the appellant submitted should have been given, the verdict could not be sustained.
Evidence of Senior Constable Todd
In particular, it was argued that the trial Judge should have more aptly brought to the jury’s attention certain inadequacies about Senior Constable Todd’s evidence.
As I mentioned earlier, Senior Constable Todd gave evidence of endorsements made on files relating to the appellant, regarding his attendance at the Christies Beach Magistrates Court on 11 January 2005. He stated that he made endorsements noting the non-appearance of the appellant, and that a warrant was to issue for his non-appearance. He said that the issue of warrants for non-attendance would normally be dealt with at the end of the morning session, which commenced at 11:15am. The effect of his evidence was therefore that if the appellant had appeared before 11:15am, he would not have made the endorsement regarding the warrant to issue. However, he could not exclude the possibility of the endorsement having been made before the 11:15am list commenced.
Senior Constable Todd had no specific memory of the events of that day involving the appellant at all. He gave evidence as to what generally occurs in court, and as to what was noted on his files. He admitted that the times when warrants were dealt with could vary, and admitted that he could not say with any certainty when the order concerning the warrant to issue was made. It was argued that the limitations inherent in Senior Constable Todd’s evidence, were not adequately brought to the jury’s attention in the Judge’s summing up.
The trial Judge drew the jury’s attention to the fact that the Senior Constable did not have an independent recollection of the events that day. His Honour said:
…his evidence was based on the practice which takes place in the Court on such occasions. I need to say to you that where a person does not have a recall of events but can give evidence of a practice, Courts consider that evidence as admissible and relevant
The trial Judge then gave a detailed summary of the Senior Constable’s evidence as to his usual practice and the practice of the courts. The trial Judge also referred to the Certificate of Record, which, contrary to Senior Constable Todd’s endorsements, had no reference to an order having been made for a warrant for arrest to issue. The trial Judge also repeated the Senior Constable’s acknowledgment that he could not exclude the possibility of the non-attendance having been dealt with prior to the 11:15am list commencing.
I consider that the limitations in Senior Constable Todd’s evidence were made sufficiently apparent to the jury, both in the trial Judge’s summing up and in Senior Constable Todd’s evidence itself. The jury were entitled to make their own assessment of that evidence. The verdict of guilty was open on the evidence, and the directions of the trial Judge were adequate in the circumstances.
Expert Evidence
The appellant’s final argument was that the trial Judge failed to properly direct the jury as to the manner in which to treat expert evidence. It was argued that a direction as to the scope and limitations of expert evidence was required in relation to the evidence of Dr Both and Senior Constable Todd. In the absence of such a direction, it was submitted that Senior Constable Todd’s evidence had the potential to carry greater weight than it deserved. Further, it was submitted that the jury needed to be reminded of their role as the triers of fact, and to understand that they were not bound to accept Dr Both’s opinions simply because she was an expert.

In the circumstances of this case, I do not consider that a direction as to the scope and limitations of expert evidence was required, and I do not consider that a failure to so direct would amount to error. While such directions are often given, there is no requirement that a direction on expert opinion evidence must be given in every case in which such evidence is adduced.[2] In this case, Dr Both’s evidence was not contradicted or disputed. More importantly, the limitations of Dr Both’s opinions were conceded by her and were made clear to the jury throughout her evidence.
[2] Middleton (2001) 114 A Crim R 258, 270.
Similarly, Senior Constable Todd admitted in his evidence that he had no independent recollection of court proceedings relating to the appellant on the relevant day, and conceded that events may have taken place outside their usual order.
Therefore, in both cases the issue was purely the weight which could be given to the evidence of these witnesses, having regard to all of the evidence. This was a matter for the jury, and did not require a specific direction.
Conclusion
Having regard to all of the above matters, I consider that the appeal should be dismissed on all grounds.