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

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.
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.
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.
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.
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.
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
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.
V gave evidence that after having…

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 KENNEDY

Details

AGLC: R v Kennedy [2014] SASCFC 24
Case: [2014] SASCFC 24
Decision Date: 26 March 2014

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned a conviction against the appellant, R, for aggravated serious criminal trespass, aggravated assault, and theft. The prosecution's case at trial relied significantly on circumstantial evidence, with the central issue being the identity of the perpetrator. The appellant contended that the jury's majority verdicts of guilty were unreasonable and could not be supported by the evidence presented.

The court was required to determine whether the evidence, when viewed objectively, was capable of sustaining the jury's finding of guilt beyond a reasonable doubt. Specifically, the court had to assess whether the identification evidence, which was ultimately not relied upon, and the circumstantial evidence, when considered together, excluded any reasonable hypothesis consistent with the appellant's innocence.

The court reasoned that while the prosecution presented evidence of an assault and theft, the identification evidence was unreliable. Upon an independent assessment of all the evidence, the court concluded that there were competing, plausible, and unexplained hypotheses consistent with the appellant's innocence. Consequently, it was not open for the jury to be satisfied of the appellant's guilt beyond a reasonable doubt. The appeal was allowed, the convictions were set aside, and verdicts of not guilty were entered on all counts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 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. BAMPTON J: For the reasons given by David J, I would allow the appeal. I agree with the orders he proposes. PARKER J: I agree that the appeal should be allowed. I agree with the reasons of David J and I have nothing to add.

Ratio Decidendi

Legal Principle Established

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