R v Lowe

Case [2016] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LOWE

[2016] SASCFC 118

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)

19 October 2016

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - OF EVIDENCE AS TO UNRELIABILITY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - AVAILABILITY AT TRIAL - EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

Application for permission to appeal against conviction.

The appellant was convicted by a jury of attempted murder. The sole contested issue was whether the prosecution had proved beyond reasonable doubt that the assailant was the accused.

The prosecution case relied primarily on high probability DNA matches between various items found at the crime scene (including the weapon) and the appellant, which only emerged years after the attack when the appellant’s DNA profile came to be entered on a police database in relation to an unrelated matter.

The defence case relied on Ms Clarke’s initial statement to police and her evidence in Court that she did not recognise the assailant as the defendant, even though she knew him, and that she assisted in the production of a composite picture which was inconsistent with the appearance of the appellant. In response, the prosecution adduced expert medical evidence to support the prosecution case that Ms Clarke’s belief that the assailant was different to the appellant was a mistaken belief caused by her head injury, and associated retrograde amnesia, arising from the attack.  The defence in turn called a neuro-psychologist to give contrary expert evidence.

On appeal, the appellant asserted that relevant material relating to a miscoding of software used in the DNA testing was not disclosed to the defence by Forensic Science SA. In addition, the appellant made an application to call fresh evidence in the form of a new expert report to contest aspects of the prosecution DNA evidence. 

Per Peek and Doyle JJ (Nicholson J agreeing) (granting permission to appeal on certain grounds and dismissing the appeal):

1.       In the present circumstances, it was open to the prosecution to lead expert evidence as to the mental condition of one of their witnesses to explain her inability to give reliable evidence.

2.       The directions by the trial Judge made the jury well aware of the nature of their task in resolving conflicts in relation to the expert evidence. No miscarriage of justice occurred.

3.       The Judge adequately directed upon…

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Details
AGLC
R v Lowe [2016] SASCFC 118
Case
[2016] SASCFC 118
Decision Date

CaseChat Overview and Summary

The appellant, R, was convicted by a jury of attempted murder. He appealed this conviction to the Supreme Court of South Australia, which comprised Peek, Nicholson and Doyle JJ. The appeal concerned the reasonableness of the jury's verdict and the admission of certain evidence.

The primary legal issues before the Court were whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there had been a miscarriage of justice. This included consideration of fresh evidence relating to DNA results, and complaints about the admission of evidence and the content of the summing up, despite no objections being raised at trial.

The Court considered the evidence presented at trial, including the nature of the attack on Ms Clarke, the crime scene, and the identification evidence. The appellant contended that the jury's verdict was unreasonable, and sought to introduce fresh DNA evidence. The Court noted that the sole issue at trial was the identity of the attacker. The Court ultimately found that, despite the "non-recognition" evidence of Ms Clarke, it was open to the jury to accept the evidence of Professor Vink regarding the unreliability of Ms Clarke's memory due to her injuries, and to reject contrary evidence.

The Court granted permission to appeal on several grounds but ultimately dismissed the appeal, finding no substantial miscarriage of justice. Permission to appeal was refused on other grounds.

Orders

Orders of the court

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Background

Background to the litigation

On 30 July 2015, the appellant was convicted by unanimous jury verdict of the offence of the attempted murder of Ms Clarke. This application for permission to appeal against conviction was referred by a single Judge to this Court which on 20 May 2016 heard full argument on both permission and the argument that would be put on the proposed grounds of appeal and reserved judgment. We would grant permission to appeal on proposed grounds 1, 2, 3, 4, 4B, 5 and 6 but would reject each of those grounds of appeal and dismiss the appeal. We would refuse permission to appeal on the remaining proposed grounds 1A, 3B, 4A and 7. Our reasons follow. The factual background and the course of the trial process As at 19 August 2003, Nanette Clarke was 48 years old and lived at 20 Bay View Road Port Lincoln (Bay View Road) with her partner Neil Evans, her 21 year old son, Damien Clarke and a Cocker Spaniel dog called “Rusty”. Neil Evans worked as a professional fisherman and kept his boat and fishing equipment at a house he owned at 1A Hillside Grove (Hillside Grove), a distance of about 2.3 kilometres from Bay View Road. In 2003, Damien Clarke was leasing Neil Evans’ fishing licence and on most (though not all) occasions when the boat was taken out, both men went fishing together. The appellant had recently completed a cooking apprenticeship and was a chef at the Port Lincoln Hotel. He lived at Hillside Grove in a relationship with Ms Jodi Evans, Neil Evans’ daughter, who worked as a dental nurse. The appellant and Jodi Evans had moved to Port Lincoln together in February 2003. The appellant stood trial before a jury twice and was represented by the same barrister, Ms Stokes, at both trials; they were reasonably short, each lasting nine days. At the first trial, which commenced on Monday 2 June 2014 and concluded with a jury disagreement on Thursday 12 June 2014 (the first trial), the appellant gave evidence in which he denied any connection with the crime. At the re-trial, which commenced on Monday 20 July 2015 and concluded with a unanimous guilty verdict on Thursday 30 July 2015 (the second trial), the prosecution tendered his (edited) evidence from the first trial and he did not give evidence. There was no dispute at trial that the piece of heavy duty aluminium pipe found abandoned outside at the crime scene (exhibit P11) was the weapon used to attack Ms Clarke; that the injuries suffered amounted to grievous bodily harm; and that the attack amounted to an attempted murder. The sole issue at trial was whether the prosecution could prove beyond reasonable doubt that it was the accused who attacked her. The appellant contends that the verdict is unreasonable (ground 6 of appeal) and applies to call fresh evidence concerning the DNA results (ground 7 of appeal). However, there are five further proposed grounds (with numerous sub-grounds and alternatives) which assert miscarriage of justice by reference to complaints concerning admission of evidence and the content of the summing up, with no objection having been taken at trial to any of such matters. No assertion of incompetence of trial counsel has been made.

Evidence

Evidence Before The Court

Neil Evans and Damien Clarke said that both the inside and outside lights of the house were on, which was again unusual. Ms Clarke’s car was parked in the carport/garage with the vehicle hazard lights on and the car doors (including the front driver’s side door) open. They found Ms Clarke lying face first in the front passenger foot well of her car, unconscious, bleeding from the head, with her night shirt up around her chest. Mr Evans stayed with Ms Clarke while Damien Clarke went inside the house and called 000, a call which was made at 10:46pm. We return to Ms Clarke’s medical condition and treatment below.The crime scene evidence There was uncontested evidence given by both Neil Evans and Ms Clarke that she kept a very tidy, organised and clean house. A crime scene investigator stated that there was no evidence of forced entry at the Bay View Road address; that the house was neatly presented and appeared to be kept in a very neat, clean and orderly condition; and that nothing appeared out of place other than what was significant to the event. The crime scene evidence indicated that Ms Clarke was attacked in the dining room area of her house where there was a large amount of blood on the floor. There were signs of disturbance in the adjacent lounge room. There was a hole in the wall behind the pot plant (photographs 26, 43 and 44 of exhibit P7) which appeared to be recent given the debris on the floor below the hole. Blood spatter analysis suggested that Ms Clarke had been struck repeatedly whilst on the floor. Blood stains indicated that she was then dragged a short distance where further blows were struck as she lay on the floor. There was then another drag mark approximately 200 millimetres wide through the blood that ran from an area near the dining room table for three and a half metres toward the garage door. The evidence indicated it was likely that first, she was unconscious as she was dragged along the floor towards the garage door and then placed into her car; and second, that the assailant was disturbed by the return of Mr Evans and Mr Clarke, and made his escape via the glass sliding door in the lounge room that leads to the rear or northern side of the house which was found to be open. Blood smears were located on a down pipe on the north western side of the house and on aluminium capping which sits atop a brush fence bordering the front western side of the house and suggested that an escape was made by that route.Items located outside the house On the far side of that brush fence, police located the weapon, a length of heavy aluminium pipe two inches in diameter, covered in blood. One half of it was covered with foam and grey duct tape, suggesting that it had been deliberately fashioned into some form of cosh. On the ground nearby was a black plastic garbage bag with blood-like staining; it had holes in the middle and side, and could be worn as a smock. Also located in that area was a green plastic shopping bag which contained a number of pieces of cord and pieces of foam joined together with grey duct tape. Further along the road, police also found a number of disposable gloves.Items located inside the house

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Rather than objecting to the admissibility of the evidence of Professor Vink, or vigorously contesting it in cross-examination, Ms Stokes called a neuro-psychologist, Mr Reid, as a defence witness to give evidence concerning retrograde amnesia and the likelihood of the victim’s description of a person other than the appellant being correct. That evidence may be conveniently outlined by reproducing the Judge’s summary in his summing up:[15]Mark Reid gave evidence. He is a neuropsychologist. He has a Masters degree in Clinical Psychology. He is a member of the College of Forensic Psychology and has practised for 35 years in clinical psychology.Mr Reid said there is a degree of correlation between severity of a head injury and the likelihood of retrograde amnesia, but not a direct correlation. He said that patients with retrograde amnesia more often than not have no memory at all during the period of amnesia, but sometimes they have patchy memories.Mr Reid said that he had read Dr Scamps’ report and the progress notes she made in the hospital records, but had not spoken to her. He said he did not know how she made her assessment that Nanette Clarke suffered retrograde amnesia for 20 to 45 minutes in circumstances in which it was recorded in the hospital notes that her last memory was lying on the floor before she woke up in hospital. Mr Reid said that Nanette Clarke appeared to have given a clear detailed description of what occurred and this suggested that she had a valid memory rather than a false memory. He said that in his experience memories were more likely to be invalid where the description was vague.Mr Reid said that up to the onset of retrograde amnesia, the person is more likely to recall persons and events that are familiar to them or involve high emotions etc. However, after the onset of complete retrograde amnesia, these factors will be irrelevant. Mr Reid said that sometimes a person has clear memories followed by patchy memories followed by complete retrograde amnesia.In cross-examination, Mr Reid said that he had not seen the evidence given by Nanette Clarke at trial. He said that he had very briefly scanned Dr Watts’s evidence, but it was only a very quick perusal and he had not seen Dr Drossaer’s evidence or any reports by him.[15] I find below, in the context of ground 1 of appeal, that adequate directions were given concerning the evidence of the expert witnesses in the summing up.CONSIDERATION OF THE SUB-GROUNDS OF GROUND 6 OF APPEAL We now consider the various sub-grounds to ground 6 of appeal.Sub-ground 6.1 of appeal It is our view that, giving full weight to the “non-recognition” evidence of Ms Clarke, it was nevertheless well open to the jury, and it is well open to this Court, to accept the evidence of Professor Vink (and to reject contrary evidence of Mr Reid) that the memory of Ms Clarke was unreliable due to injury to her brain caused by the attack.Sub-grounds 6.2 and 6.6 of appeal Sub-grounds 6.2 and 6.6 of appeal may be taken together.