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

1. VANSTONE J.     I agree that the appeal must be dismissed. I agree with the reasons of Anderson J.

2. ANDERSON J.

   Introduction

3. 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.

4. 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.

5. On appeal it is argued is that the verdict was unreasonable and cannot be supported having regard to the evidence.

   Background

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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

13. DNA samples were taken from the bag and the pillow case. The appellant was not excluded as a contributor to the DNA left on either the bag or the pillow case. The sample taken from the inner part of the pillow case gave a mixed DNA profile. The major component was consistent with the profile of the appellant. An expert witness said that the DNA from the pillow case was approximately 885 times more likely to match the profile of the appellant if he was the source of the DNA as distinct from an unrelated male. There were at least two other contributors to the profile found in that sample.

14. In the case of the outer surface of the pillow case, the major component of the DNA matched that of the appellant. In this case the DNA profile was greater than a billion times more likely to match the DNA profile of the appellant if he was the source rather than an unrelated male. There was at least one other source of DNA from that sample.

15. DNA was taken from the handles of the shopping bag. There was a weak, mixed DNA profile from at least three persons. The appellant was not excluded as a contributor.

16. The police later located a left-handed gardening glove in a road at the rear of the post office. There was no evidence firstly that the offender left the post office and traversed that route, nor was there any evidence that the offender wore gloves. The police later seized a left-hand gardening glove from the boot of the appellant’s car. It was similar but not identical to the left-hand glove found on the road.

17. The police also took from the house in which the appellant lived what has been described as a black bucket hat.

18. The prosecution called a Ms Marslen who gave evidence that in early January 2009 she saw the appellant with an object wrapped up in a towel which the appellant informed her was a gun. He also told her that he had accidentally fired it in his car, and she observed that silver tape had been put on the outside of the car to cover a hole in the rear passenger side door.

19. The police conducted an examination of the vehicle and found that there was a hole in the door and remnants of silver tape over that hole. The forensic evidence was that the hole was consistent with having been caused by a shotgun blast but as to what sort of shotgun there was no evidence.

    The arguments on appeal

20. There was no suggestion made by Mr Stokes for the appellant that the summing up of the trial judge was in any way deficient. The appeal related solely to the strength of the circumstantial case put forward by the prosecution. The appellant argued that no reasonable jury could have excluded all hypotheses consistent with innocence beyond reasonable doubt on the evidence presented by the prosecution.

21. Mr Stokes conceded that the circumstantial evidence did present a case to answer but he submitted that it was nevertheless not sufficiently compelling to exclude all innocent hypotheses. He submitted that only the DNA evidence relating to the bag and pillow case and the fact that the appellant had access to a firearm at the relevant time were of any weight.

22. Mr Stokes argued that the DNA evidence, although relating to the appellant, also linked other persons to the bag and pillow case. He raised the fact that the pillow case did not match any other items of bedding found in the possession of the accused. There was also the fact that others had access to the house in which the accused lived.

23. In response, Mr Press for the respondent raised the following matters. He submitted that it was important in relation to the firearm to relate it to a relevant time when the appellant was in possession. He referred to Ms Marslen’s evidence that the appellant told her he had fired the gun inside his car and caused the hole in the door. So it was open for the jury to find that at the relevant time of the attempted theft the appellant not only had access to the gun but had sole possession of it.

24. In relation to the pillow case Mr Press pointed to the evidence of Mr Smith, who lived with the appellant. He said that at the time of the offence the appellant was assisting his mother in moving house and was transporting items including bed linen from his mother’s place. Even though the pillow case did not exactly match any other items of linen at the appellant’s residence, the police found quilt covers in the appellant’s vehicle of a floral design. Mr Press argued it was therefore open to the jury to reason at least that the appellant had possession of similar items, albeit not exactly matching.

25. Mr Press also pointed to the fact that the jury could compare the description given by Mr Daniels of the appellant with what they observed in court. That description did not exclude the appellant as the offender. He submitted that there was nothing in the one witness’s description of “sunken cheeks” which excluded the appellant. The jury were able to make such an assessment.

26. 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

27. 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.

28. 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.

29. The trial judge rightly played down the evidence relating to the gardening glove and the hat. Of themselves they added little.

30. 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

31. 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]

32. 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.

33. 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.

34. 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.

35. In my view this is a classic circumstantial case. I would dismiss the appeal

36. STANLEY J.        I would dismiss the appeal. I agree with the reasons of Anderson J.