R v KENNEDY

[2014] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v KENNEDY

[2014] SASCFC 24

Judgment of The Honourable Justice David, The Honourable Justice Bampton and The Honourable Justice Parker

26 March 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

Appeal against conviction – appellant found guilty by majority verdicts of a jury of the offences of aggravated serious criminal trespass, aggravated assault and theft – case against appellant based largely 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 — convictions set aside — verdicts 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; Libke v The Queen (2007) 230 CLR 559, applied.

R v KENNEDY
[2014] SASCFC 24

Court of Criminal Appeal:  David, Bampton and Parker JJ

1. DAVID J:              The appellant was found guilty by a majority verdict of a jury of the offences:

   (1)Aggravated serious criminal trespass.

   (2)Aggravated assault.

   (3)Theft.

2. All offences were allegedly committed on 14 September 2012 when, on the prosecution case, in the late evening, the appellant (A) and a Dong Frank Tran (Tran) went to the premises of Brian John Willmott (V) who was aged 68 years and living alone. 

3. On the prosecution case, upon answering the door, V was assaulted by A with a glass bottle.  V then retreated to his laundry and hid from his assailants.  When he emerged from the laundry, A and Tran had left the premises.

4. Police were called to the scene.  Approximately 40 minutes after the incident other police officers searched the area and attended at premises approximately 400 metres from V’s home.  There they located A and Tran and another person.  They found at that premises a phone and a tobacco pouch which belonged to V and which had obviously been stolen from V’s premises.

5. The issue for the jury was whether the prosecution had proved beyond reasonable doubt that the appellant was one of the offenders.  The jury returned majority verdicts of guilty on all counts.

6. The appellant now appeals on the ground that the verdict is unsafe and not supported by the evidence.  There is no challenge to the admissibility of evidence or any aspect of the trial Judge’s summing up to the jury.

   The trial and the evidence

7. The prosecution case was based upon a combination of identification evidence and circumstantial evidence.  However, as the trial developed and the argument in this Court proceeded, it is clear that ultimately no reliance could be placed upon the identification evidence.  The question for this Court comes down to whether the case mounted and evidence presented by the prosecution is capable of justifying the jury’s verdicts of guilty.

8. V gave evidence that after having gone to bed on Friday, 14 September 2012 he was awoken by banging on his door at approximately 11.30 pm.  He opened the door and saw two men.  He was hit by a glass bottle.  He unsuccessfully tried to push the men out and close the door.  V was continually hit with the glass bottle before he escaped into his laundry at the back of the house.  The incident took about three minutes and V stayed in the laundry for five or six minutes coming out once he heard the men depart.  He noticed that his phone was missing.  He also noticed after he was assaulted that there was broken glass, obviously from the cider bottle with which he was struck.  V subsequently rang the police.  In evidence, V described his attackers.  He described the first attacker as being part-Aboriginal, aged 25 to 30 and having a shaven head with no facial hair.  V described the second attacker as being part Chinese, four and a half to five feet tall with warts on his face. 

9. Other than the mobile phone, also missing from V’s house was a pouch of tobacco. V suffered a number of cuts to the side of his head as a result of the assault upon him.

10. V also gave evidence that he had seen the same two men earlier that afternoon at the house of his neighbours.  At that time, V described the part-Aboriginal man as wearing a white T-shirt or a singlet, though he did not see what the Asian man was wearing.  He gave evidence under cross-examination that when observing him that afternoon, the person with the white T-shirt was five feet eleven inches tall, part Aboriginal and had a shaved head with no facial hair.

11. However, when shown packs of photographs of potential perpetrators by the police subsequently, V could not identify either of the two males, even though their photos were present.

12. A prosecution witness, Sergio Luis, gave evidence of being at his father’s house, which is on the same street as V’s house, that afternoon and seeing these two men.  He described seeing the two men have an argument with his father and that V, who is the grandfather of Mr Luis’ partner, was also present.  As a result of having spoken with V, Mr Luis attended the Holden Hill Magistrates Court on 18 September 2012.  While at the Magistrates Court, Mr Luis identified A as one of these men when his photo was put up on a television screen.  At that stage, A was in custody. 

13. In short, the Crown case on identification was that a combination of Mr Luis’ evidence, which identified A on the afternoon of the offence, and the evidence of V that the person who assaulted him was the same person he saw in the presence of Mr Luis that afternoon, even though he could not subsequently identify him and his description of A differed to that of Mr Luis, is enough to produce some evidence of a circumstantial nature towards the identification of A as one of V’s attackers. 

14. Evidence was led that the appellant, on arrest, had thick black hair and a beard, as contrasted to V’s description that he had a shaved head and no facial hair.  Also at his arrest he was wearing a light yellow polo top, compared with a white T-shirt, as described by V.

15. The evidence of strict identification was understandably unsatisfactory and the prosecution case relied upon the circumstantial evidence that was led. 

16. Approximately 40 minutes after the incident, police officers searched the area and attended premises 400 metres from V’s house where they located A, Tran and another Aboriginal person.   On attending that premises the police spoke to all three.  A was described by police as being aggressive and appeared intoxicated.   A search of the premises located a purple mobile phone and a tobacco pouch taken from V’s premises.  Also found at the premises were several Bulmers cider bottles.  The bottle which was used to assault V was a bottle of Bulmers cider, similar to those located at A’s house.  Fragments of the broken bottle which were found at V’s house were analysed for DNA.  Two contributors were identified, namely A, who was 130 times more likely to be a contributor to the DNA profile, and Tran, who was 83 billion times in favour of having contributed to the profile.

17. The prosecution case therefore relied upon the following items of circumstantial evidence over and above the unsatisfactory identification evidence.  Namely:

    (1)A and Tran  were together during the day of the offence;

    (2)40 minutes after the incident, both were located at a premises approximately 400 metres or, otherwise described as a short, five minute walk from V’s residence;

    (3)When located, A was wearing a pale yellow shirt similar to the white shirt described by V;

    (4)Property stolen from V’s premises was located at A’s premises;

    (5)Bottles of Bulmers cider, similar to the bottle used in the assault, were discovered at V’s premises, and

    (6)DNA of the accused was identified on fragments of the smashed Bulmers cider bottle left at V’s house.

18. A elected not to give or call evidence at the trial.

    Appeal

19. As I have indicated, there is one ground of appeal, namely that the verdict was unsafe and unsatisfactory.  The law in relation to whether a verdict is unsafe or unsatisfactory is now well settled.  The majority in M v The Queen[1] stated at 492:

    Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.  Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”.  In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.

    ...

    The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence on which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

    [1] (1994) 181 CLR 487 at p 492.

20. The majority further stated at 493:

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

21. In Libke v The Queen[2] the majority said:

    ... the question for an Appellate Court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the Appellant’s guilt.  It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

    [2] (2007) 230 CLR 559 at p 596.

22. The respondent in this case argues that a combination of the circumstances established by the prosecution at trial  are sufficient to implicate A, such that an Appellate Court could not say that a jury must have entertained doubt about A’s guilt.  The respondent argues that a combination of events, all of which were undisputed at trial, point to A as being one of V’s attackers, with no other reasonable explanation consistent with innocence. 

23. Ms Demertzis for A argues that the evidence is dangerously weak as there exist a number of hypotheses consistent with innocence which a jury could not reject beyond reasonable doubt.

24. Ms Demertzis argues that the identification evidence of V and Mr Luis should play no part in the reasoning for this matter.  I agree with her.  I am of the view that the evidence of identification did not further the Crown case.  In the circumstances of this case, what I would loosely term the ‘joint identification’ evidence of V and Mr Luis, is simply too unreliable to support, or even contribute, towards a guilty verdict.  The Crown case could only rely upon other circumstantial evidence.

25. Ms Demertzis further argues that there is no evidence as to who had use of the house in which A was located by the police.  There is no evidence of who normally occupied it and how many people had access to it.  The hypothesis that someone else who had access to that house may have taken one of those bottles which had been handled at an earlier stage by A, and used it to assault V has, according to Ms Demertzis, not been rejected.  The hypotheses that some other person who, perhaps, but not necessarily, matches V’s description of his attacker, may have taken a bottle from that house, assaulted V and brought the mobile telephone and tobacco pouch back to that house is, to say the least, a distinct possibility on the evidence.  Added to that, Ms Demertzis argues that there is further doubt created by the discrepancy in the description of the Aboriginal attacker, who the prosecution says must be A.  In particular, she referred to V’s description of his attacker’s height, hair and facial hair.  These arguments cause me great concern.

26. I also note that a jury has less of an advantage over an appeal Court in circumstances where there is no issue of the credibility of witnesses, but rather the appeal Court is required to make an assessment of objective and undisputed evidence.  In that regard, the High Court in M v The Queen[3] stated that:

    If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to set aside a verdict based on that evidence.

    [3] (1994) 181 CLR 487 at 494.

27. Looking at all of the evidence and applying the principles set out above, that is, by making my own independent assessment of the evidence, I am of the view that in all of the circumstances it was not open to the jury to be satisfied of A’s guilt beyond reasonable doubt because of the existence of competing, plausible and unexplained hypotheses consistent with innocence.

    Conclusion

28. I would allow the appeal and set aside the convictions on the ground that they cannot be supported having regard to the evidence.  I would substitute a verdict of not guilty on all counts.

29. BAMPTON J:       For the reasons given by David J, I would allow the appeal.  I agree with the orders he proposes.

30. PARKER J:          I agree that the appeal should be allowed. I agree with the reasons of David J and I have nothing to add.