R v Rowe

Case [2004] SASC 424

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROWE

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

17 December 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appeal against conviction - the appellant was convicted by a jury of shooting with intent to do grievous bodily harm - whether the Judge erred in refusing the appellant's application for a permanent stay of the trial and the proceedings on Information and later declining to reconsider that refusal - where one of the police officers involved in the investigation of a number of offences of which the appellant was suspected committed suicide during the trial but before giving evidence - where the appellant asserted that the police officer was a material witness and had manufactured evidence against the appellant - where the appellant asserted that there had been a lack of proper disclosure of material by the police and the Director of Public Prosecutions - whether the appellant received a fair trial and could receive a fair trial - consideration of events leading up to the trial and the course of the trial - whether the Judge erred in his directions to the jury as to evidence from a number of witnesses who said they saw a man in the vicinity of the premises where the shooting occurred at about the time of the shooting - whether the verdict of guilty was unsafe and unsatisfactory because it was unreasonable or could not be supported having regard to the evidence - whether the Judge erred in his directions in relation to the evidence of Mr Ravlic, a prosecution witness - where Mr Ravlic was a "career criminal" and an associate of the appellant at the time of the shooting and gave evidence that the appellant had admitted that he had committed the shooting and other offences - appeal dismissed. 

Criminal Law Consolidation Act 1935 ss 21, 359, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23; M v The Queen (1994) 181 CLR 487, discussed.
R v Basha (1989) 39 A Crim R 337; R v MDR (2002) 223 LSJS 405; Rona v District Court of South Australia (1994) 63 SASR 223; Gorman v Fitzpatrick (1987) 32 A Crim R 330; R v Sams (1988) 36 A Crim R 245; R v Adler (unreported, Court of Criminal Appeal (NSW), 11 June 1992); R v Goldburg (unreported, Court of Criminal Appeal (NSW), 23 February 1993; R v McCarthy (unreported, Court of Criminal Appeal (NSW), 12 August 1994); Domican v The Queen (1992) 173 CLR 555;

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AGLC
R v Rowe [2004] SASC 424
Case
[2004] SASC 424
Decision Date

CaseChat Overview and Summary

In the case of R v Rowe, the appellant appealed against his conviction by a jury for shooting with intent to cause grievous bodily harm. The appeal raised several grounds, including the judge's refusal to grant a permanent stay of the trial proceedings due to the suicide of a key police officer during the trial, the adequacy of jury directions regarding certain identification evidence, and the safety and reasonableness of the verdict. The appellant argued that the deceased officer was a material witness and had fabricated evidence against him, that there was insufficient disclosure of material by the police and the Director of Public Prosecutions, and that he did not receive a fair trial.

The court examined whether the judge erred in his refusal to stay the trial, in his directions to the jury concerning identification evidence, and in his handling of the evidence from Mr Ravlic, a prosecution witness who was a "career criminal" and an associate of the appellant. The court found that the judge's directions to the jury were adequate, and the appeal was dismissed. The directions regarding Mr Ravlic were deemed sufficient, and the court held that the verdict was safe and satisfactory. The court concluded that all grounds of appeal were without merit, and the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the appellant be upheld. The court found that the trial was conducted fairly, the evidence was properly considered by the jury, and the verdict was well-supported by the evidence presented. The court rejected the appellant's claims of procedural unfairness and inadequate jury directions, affirming the conviction and sentence imposed by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I reject the first ground of appeal.Second ground of appeal – directions about evidence of a person seen on 19th June 2001 A number of witnesses gave evidence about a person they saw in the vicinity or area of the Lonsdale premises on 19th June 2001. Two of the witnesses, Mr Thomson and Mr Howkins, participated in a photoboard identification procedure and other witnesses gave evidence of the physical features and clothing of the person they saw. I will refer to the evidence in more detail shortly. The appellant submits that the evidence given by these witnesses was circumstantial evidence used to identify the appellant and that it was necessary for the Judge to draw to the jury’s attention any conflicts, inconsistencies and inadequacies in the evidence of those witnesses, either individually or collectively. It was said that the Judge did not do this, or in the alternative, he did not do it adequately. The Court was referred to Domican v The Queen (1992) 173 CLR 555 and Festa v The Queen (2001) 208 CLR 593. It is necessary to consider the evidence of each relevant witness and what the Judge said about that evidence. Mr Thomson, the victim, said that the shooter was holding a clipboard. He approached Mr Thomson and said, “You’ve pissed off a mate of mine” and he then pulled the clipboard down and shot him three times. Mr Thomson estimated the distance between the shooter and himself at the time of the shooting at 1.5 to 2 metres. The three shots were fired in quick succession. Mr Thomson described the colour and type of clipboard. He said that the shooter had the clipboard in his left hand and the gun, which he described as a black pistol, in his right hand. He gave evidence about the shooter’s age as it appeared to him, the colour and length of his hair and his height and build. He gave evidence of his recollection of the clothes the shooter was wearing. Mr Thomson had a conversation with a police officer at the Flinders Medical Centre, and he gave that officer an estimate of the shooter’s age, height and build, his complexion, the fact that he was clean-shaven and the length and colour of his hair. The Judge summarised Mr Thomson’s evidence on these topics in his directions to the jury. The Judge referred to the photoboard identification procedure undertaken by Mr Thomson in his directions to the jury. He did that in that part of his directions to the jury where he identified it as an item of circumstantial evidence relied on by the prosecution and immediately after outlining the proper approach to circumstantial evidence. Mr Thomson was shown a photoboard which had twelve photographs on it. The appellant’s photograph was located at position number two. Mr Thomson pointed to the appellant’s photograph and said words to the effect that the person looked similar to the person who shot him. He also said, “that guy looks a bit like him”. Mr Thomson said that the shape of the person’s face and the fact that he had a receding hairline led him to think that the person looked similar to the person who shot him. The Judge reminded the jury of this evidence of Mr Thomson. He also reminded the jury that Mr Thomson estimated that the distance between the shooter and himself was 1.5 to 2 metres and of Mr Thomson’s evidence that he got a front-on look of the shooter’s face. He suggested to the jury that Mr Thomson may have had less time to observe the shooter than his estimate of three to five minutes. The Judge told the jury that Mr Thomson’s evidence was not evidence identifying the person who shot him and that it was no more than evidence that the appellant looked similar to the shooter. He said that the evidence was no more than a piece of circumstantial evidence which did not alone prove that the appellant was the shooter. He said that if the jury accepted the evidence it was to be considered with all the other evidence which the jury found acceptable. The Judge told the jury that they must carefully consider Mr Thomson’s evidence. He said:“If you accept him [Mr Thomson] as a reliable, truthful and accurate witness you will be able to conclude that the accused looks similar to the gunman”.

Decision

Reasons for decision

In my opinion, the directions the Judge gave the jury in relation to Mr Ravlic were adequate and I reject the fourth ground of appeal.Conclusion In my opinion all four grounds of appeal must be rejected and the appeal must be dismissed. WHITE J: I agree with the order proposed by Besanko J and with his reasons for that order.

Ratio Decidendi

Legal Principle Established

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