R v Martin No. Sccrm-02-54 - [2002] SASC 375

THE QUEEN v MARTIN
[2002] SASC 375
Criminal

OLSSON AJ On 15^th October 2002 I published detailed reasons for my rulings on certain Rule 9 issues in this matter, which were argued before me. Of necessity, and in order to produce reasons for verdict which are cohesive, I will need to retrace some of the same ground. I will, however, only do so to the extent necessary to achieve that result.
In these proceedings the accused was presented for trial on 16 counts involving a variety of offences said to have been committed, in concert with another offender, over the space of several days in late January 2001. One count (Count 7) was, ultimately, the subject of a nolle prosequi. The accused elected for trial by judge alone.
It is common ground that the various counts can conveniently be grouped into three, separate, internally related, series.
The first involved allegations of the taking of a motor vehicle at about 12.01 am on 26 January 2001 and its subsequent illegal use, on 27 January 2001, in connection with entering a private residence and stealing various items and also two successive incidents of bag snatching. The last three offences were said to have occurred, in rapid succession, between about 4.30 am and 7.25 am on the same day. The vehicle was found abandoned shortly before 2 pm.
The second, inter alia, concerned allegations of the taking of another motor vehicle, at about 1:50 pm on 28 January 2001, and its involvement, on the same day, in an attempted larceny of a cash register and its contents, a bag snatching and larceny of petrol from a service station. The last three of those offences were said to have occurred, in rapid succession, between about 6.50 pm and 7.45 pm. The vehicle was found abandoned on the morning of 31 January 2001.
The third focused on allegations of the taking of yet another vehicle, at some time during the night of 28/29 January, and its subsequent use, on 29 January 2001, in relation to one attempted (but unsuccessful) bag snatching, three separate incidents of actual bag snatching and an associated offence of assault occasioning actual bodily harm. The last four offences were said to have occurred over a period extending from about 6.55 am to some time in the afternoon. The vehicle was found abandoned on the morning of 3 February 2001.
On his arraignment at trial, the accused pleaded guilty to nine counts connected with the first two series of offences. He pleaded not guilty to all counts comprising the third series i.e. Counts 11 to 16 inclusive. The present reasons are confined to my findings at the conclusion of a trial of the lastmentioned counts.
The Rule 9 issues, above referred to, gave rise to lengthy voir dire proceedings, as a prelude to the trial proper. The accused sought orders excluding evidence related to the first and second series of offences and also certain identification evidence proposed to be led through…

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.

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Details

Case: [2002] SASC 375
Decision Date: 12 November 2002

CaseChat Overview and Summary

The case before the court involves the respondent, Martin, who has been charged with nine offences involving theft, car theft, and assault. The offences occurred between February 26/27, 2001, and January 28, 2001, and Martin has admitted to being part of a joint enterprise in committing these crimes. He acted in concert with another person of aboriginal descent and was the getaway driver in several of the offences. The court was required to determine whether Martin's involvement in the joint enterprise and the evidence presented was sufficient to establish his guilt beyond reasonable doubt.

The legal issues before the court included determining whether the circumstantial evidence was strong enough to establish Martin's guilt beyond reasonable doubt and whether the established facts were inconsistent with any reasonable hypothesis other than Martin's guilt. The court also needed to consider whether the evidence proved the ultimate factual conclusions in question, such as Martin's involvement in the joint enterprise and his guilt in the specific offences charged.

The court found that the circumstantial evidence presented was strong enough to establish Martin's guilt beyond reasonable doubt. The evidence included the similar characteristics of the driver, the description of the vehicle, the recorded registered number on various occasions, and the recovery of the stolen handbags in the vehicle. The court determined that the established facts were inconsistent with any reasonable hypothesis other than Martin's guilt and that his involvement in the joint enterprise and the specific offences charged was the only rational inference that could be drawn from the proven circumstances.

Martin was found guilty of all nine offences, and the court's final orders included a custodial sentence for Martin's involvement in the joint enterprise and the specific offences charged.

Orders

Orders of the court

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Background

Background to the litigation

When I hereafter refer to common purpose it should be understood that I will be addressing the evidence within the foregoing concepts, as appropriate.The narrative facts Many of the narrative facts relevant to this trial were not in dispute. Some facts falling in that category may be summarised in this way -- The nine offences constituting the first two series referred to above all occurred between some time during the night 26/27 February 2001 and about 7:45pm on 28 January 2001. By his pleas the accused has admitted his involvement in a joint enterprise to commit those offences. In each instance he acted in concert with a second person and, in the case of Counts 2, 3, 5, 8, 9, and 10 he was the getaway car driver. In the case of Count 4 he was the principal perpetrator of the bag snatch which occurred. The accused is part aboriginal and he acted in concert with another or other persons of aboriginal ancestry in the commission of the offences to which I have just referred. At the times of their commission and thereafter until his arrest the accused had dark, relatively bushy, hair and pronounced dark eyelashes. He exhibited a substantial goatee beard several centimetres in length, including a well-developed moustache. He did not have sideburns. His appearance was as depicted in exhibit P 12. The first two series of offences had a number of common features. These included --(1)Counts 2, 3, 4, and 5, followed very shortly in time after the taking of the car the subject of Count 1. Similarly, Counts 8, 9 and 10 followed very shortly in time after the taking of the car the subject of Count 6.(2)In the case of both series the relevant stolen car was used as the getaway car in relation to the commission of the associated offences.(3)All offences of larceny from the person were committed upon older women. They were each targeted whilst on foot and, except in one instance, alone.(4)Each such offence involved an aboriginal male approaching the victim on foot and stealing or attempting to steal their handbag.(5)Each involved a second aboriginal male waiting in the driver's seat of the getaway car with the engine running. In each instance the handbag snatcher ran to the car after the incident and was then driven away.(6)In each case of larceny from the person one of the two offenders was said to be, or was, a male aboriginal with a beard of some type. In relation to Counts 5 and 9 the accused specifically pleaded guilty on the footing that he was the driver of the getaway car and not the offender who snatched the relevant bag. It is common ground that the vehicle involved in the first series of offences was a white VL Commodore. Entry to it was gained by forcing the lock mechanism of the driver's door, removing the ignition key barrel assembly from the steering column and then "hot wiring" the vehicle to start it. The stolen handbags related to Counts 4 and 5 were each left in the relevant vehicle used in the offence and were found there when that vehicle was eventually located.

Evidence

Evidence Before The Court

It is stating the obvious to say that the circumstantial evidence before me unequivocally points to the use of the VL Commodore owned by Mr Koch and taken on the night 28/29 January 2001 as having been involved in the commission of each of the incidents giving rise to counts 12, 13, 14 and 15 respectively. Quite apart from the similar characteristics of the driver in particular, noted in relation to most of them, the description of the vehicle, the recorded registered number on various occasions and the subsequent recovery of the three handbags in the Koch vehicle, coupled with the relevant timings and modus operandi, render such a conclusion well nigh inevitable. Indeed, I did not take Mr Lang, of counsel for the accused, to argue to the contrary. The same factors also combine to indicate, unequivocally, that the driver of the vehicle in relation to counts 12, 13 and 14 must have been one and the same person. They also indicate, as the only rational and logical hypothesis, that the persons who were involved in Counts 12, 13 and 14 must have been those who were responsible for the commission of the offences charged in Counts 11 and 15.The circumstantial evidence As the conclusions above referred to are the product of my assessment of the combined effect of the circumstantial evidence which I have already recited and I will, in due course, be further referring to evidence of that type, it is necessary that I pause to make some comment concerning evidence of this nature. The assessment of circumstantial evidence involves a two step process. First, it is necessary to decide what primary facts have been proved by the Crown beyond reasonable doubt. Second, it becomes necessary to consider what inference or inferences are properly to be drawn from the facts so established. In deciding whether a particular fact has been established the whole of the evidence can be taken into account, insofar as it bears on or forms the context in which the particular aspect under consideration must be viewed. Importantly, regard must be had to the totality of the circumstances proved and the united force of all the circumstances put together. i.e. the proper approach is to assess the combined effect of all of those items of circumstantial evidence accepted and relevant to an offence; and to consider further, separately in relation to each offence to which the evidence is relevant, whether, as a matter inference, they prove beyond reasonable doubt the ultimate factual conclusions in question -- in this case the guilt of the accused of that offence. I am particularly conscious of the overriding principle that, at the end of the day, a guilty verdict cannot be returned as to any relevant Count unless the circumstances proved are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the specific offence in question, considered separately. Not only must guilt be a rational inference from the established facts -- it must be the only rational inference that the proven circumstances enable me to draw.The elements of the charges

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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