R v PERCY - [2011] SASCFC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PERCY
[2011] SASCFC 158
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)
21 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Appeal against conviction - appellant charged and found guilty by jury of the offence of attempted aggravated robbery contrary to s 137(2) and s 270A of the Criminal Law Consolidation Act 1935 (SA) - aggravating factor is that the appellant used an offensive weapon - ground of appeal is that the verdict was unreasonable and could not be supported having regard to the evidence - trial involved circumstantial evidence in relation to identity of appellant.
Whether verdict unreasonable - whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt having regard to the evidence - whether jury must, as distinct from might, have entertained a doubt about the appellant's guilt.
Held: Appeal dismissed - not a case where the jury must have entertained a doubt about the appellant's guilt - open to the jury to be satisfied of guilt beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 137 and s 270A, referred to.
M v R (1994) 181 CLR 487; Libke v (2007) 230 CLR 559; R v Weetra (2004) 236 LSJS 238, applied.

R v PERCY
[2011] SASCFC 158

VANSTONE J. I agree that the appeal must be dismissed. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
The appellant was convicted on a charge of attempted aggravated robbery contrary to s 137 and s 270A of the Criminal Law Consolidation Act 1935 (SA) following a trial before a jury in the District Court. The trial proceeded over three days.
The particulars alleged against the appellant were that on the 22^nd day of January 2009 at Para Hills, he “attempted to commit the theft of money from Brenton Ronald Mitch by threatening to use force against Brenton Ronald Mitch and the threat to use force was made immediately before the attempted theft”. It was further alleged that the appellant used an offensive weapon, namely a shotgun, when committing the offence.
On appeal it is argued is that the verdict was unreasonable and cannot be supported having regard to the evidence.
Background
The prosecution case was that a male person entered a Para Hills post office on 22 January 2009. There were two people who were working in the post office at that time. One was the victim Mr Mitch. He and the owner, Mr Daniels, estimate that the offender remained in the post office for between 10 to 15 seconds.
Mr Daniels was behind the counter when he saw the offender enter the post office. He said that the offender was carrying a recyclable shopping bag which contained a floral pillow…

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 PERCY

Details

AGLC: R v Percy [2011] SASCFC 158
Case: [2011] SASCFC 158
Decision Date: 21 December 2011

CaseChat Overview and Summary

The appeal before Vanstone, Anderson and Stanley JJ of the Supreme Court of South Australia concerned a conviction for attempted aggravated robbery, with the aggravating factor being the use of an offensive weapon. The appellant argued that the jury's verdict was unreasonable and could not be supported by the evidence presented at trial, which relied heavily on circumstantial evidence to establish the appellant's identity as the offender.

The central legal issue before the court was whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt, or conversely, whether the jury must have entertained a doubt about the appellant's guilt. This required the court to consider the weight and sufficiency of the circumstantial evidence, including DNA found on items left at the scene and the appellant's possession of a firearm.

The court reasoned that while some pieces of circumstantial evidence, such as a hat and glove, were of little weight, the DNA evidence found on a pillow case and a shopping bag, coupled with the appellant's possession of a gun and a general description of the offender that did not exclude the appellant, provided a sufficient basis for the jury's verdict. Applying the principles established in *M v R* and *Libke v R*, the court held that it was not possible to say that the jury must have entertained a reasonable doubt about the appellant's guilt. The jury had the primary responsibility of determining guilt and had the benefit of seeing and hearing the witnesses.

Consequently, the appeal was dismissed, as it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt based on the totality of the circumstantial evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

On appeal it is argued is that the verdict was unreasonable and cannot be supported having regard to the evidence.Background The prosecution case was that a male person entered a Para Hills post office on 22 January 2009. There were two people who were working in the post office at that time. One was the victim Mr Mitch. He and the owner, Mr Daniels, estimate that the offender remained in the post office for between 10 to 15 seconds. Mr Daniels was behind the counter when he saw the offender enter the post office. He said that the offender was carrying a recyclable shopping bag which contained a floral pillow case. He said that the offender was about a metre and a half away from him and he noticed that the offender was wearing a bucket hat and had on cheap black framed sunglasses. He described the offender as having very sunken cheeks and dimply skin. Mr Daniels said the offender, on approaching him, reached into the bag containing the pillow case revealing the wooden butt of a gun. He said he then yelled out to warn Mr Mitch and ran into another room. He said he did not see the offender actually take the gun out of the bag. He only saw the butt of the gun. Mr Daniels said that after he yelled out he left for another room and then came back and asked Mr Mitch to push the distress button. He said the offender did not speak. He said when he ran out to a back room he was there for about five or six seconds. He said he saw Mr Mitch go to the ground. He did not see the offender leave. He agreed he told police that the offender was a male in his late thirties or early forties. Mr Mitch says the first thing he recalled after the offender walked into the post office was Mr Daniels telling him to press the distress button. He said Mr Daniels ran away into another room and he then saw that there was a gun pointed at him. He described it as a side by side double-barrelled sawn off shotgun. He said the offender was about three metres away from him at this stage. He said he dived behind a bookcase because he feared that he might get shot. He said he could not give any description of the offender or the offender’s clothing because when he saw the gun he took evasive action. Neither witness saw the offender leave the post office nor in which direction he went after leaving. Mr Mitch said that after the offender had left the post office he saw two items, namely a pillow case and a yellow shopping bag, in front of the counter. He said that those items were not in the post office before the offender came in. Mr Daniels could only provide the police with a broad description of the offender. His description was simply that the offender was of medium height, wore a bucket hat, glasses and a loose fitting shirt. As I have indicated, he noticed this man had very sunken cheeks. When asked to describe the offender’s age, it was his view that the offender was either in his late thirties or early forties. He also saw the offender take the gun from the floral pillow case inside the bag. He saw the butt of the offender’s gun. However, he could not describe the whole of the gun as he had entered another room to take cover before the gun was produced.The circumstantial case

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J ANDERSON J STANLEY J (dissent)

The trial judge gave a full direction on circumstantial evidence. The question for the jury was simply whether it was open for them to find that the prosecution had excluded the possibility that someone other than the appellant committed the offence.Conclusion In my view this is a case where it is not possible to say that the jury must, as distinct from might, have had reasonable doubt about the guilt of the appellant. In M v R (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said 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.[Footnotes omitted] The test in M v R was applied in Libke v R (2007) 230 CLR 559 at 596-597 by Gleeson CJ and Heydon J as follows:But 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 was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. It is not sufficient for the appellant to merely illustrate that the evidence relied on by the prosecution is open to criticism: see R v Weetra (2004) 236 LSJS 238. Given the evidence of DNA on the bag and pillow case, the possession of a gun at the relevant time and the general description of the offender given by the witness it was open to the jury to convict. That is, it cannot be said that the jury must have entertained a reasonable doubt about the guilt of the appellant. In my view this is a classic circumstantial case. I would dismiss the appeal I would dismiss the appeal. I agree with the reasons of Anderson J.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J, ANDERSON J,

Mr Press conceded that the evidence of the hat and glove was of very little, if any, weight. The judge had directed the jury to that effect.Consideration Clearly the two most powerful pieces of circumstantial evidence were the DNA on the pillow case in particular, and to a lesser extent the bag, and the evidence that the appellant at the relevant time possessed a gun. There was no evidence as to whether the appellant was the registered owner of any firearm. The general description of the appellant given by one of the post office employees, even though it was not specific, certainly did not exclude the appellant as the offender as Mr Press has submitted. The jury could reason that the description did not exclude the appellant. The DNA evidence, particularly related to the outside of the pillow case, was consistent with the appellant being the offender. There was also the yellow bag again containing DNA consistent with that of the appellant. The trial judge rightly played down the evidence relating to the gardening glove and the hat. Of themselves they added little. The trial judge gave a full direction on circumstantial evidence. The question for the jury was simply whether it was open for them to find that the prosecution had excluded the possibility that someone other than the appellant committed the offence.Conclusion In my view this is a case where it is not possible to say that the jury must, as distinct from might, have had reasonable doubt about the guilt of the appellant. In M v R (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said 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.[Footnotes omitted] The test in M v R was applied in Libke v R (2007) 230 CLR 559 at 596-597 by Gleeson CJ and Heydon J as follows:But 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 was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. It is not sufficient for the appellant to merely illustrate that the evidence relied on by the prosecution is open to criticism: see R v Weetra (2004) 236 LSJS 238.