R v Sandell - [2023] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v SANDELL & ORS
Criminal Trial by Judge Alone
[2023] SASC 85
Reasons for the Verdicts of the Honourable Justice Kimber
30 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - ASSAULT OR UNLAWFUL STRIKING CAUSING DEATH
The defendants are jointly charged with one count of Murder alleged to have been committed on 28 August 2020. On 5 September 2020 the deceased passed away as the result of a blow(s) to the head deliberately delivered by at least one of the defendants.
On the prosecution case, the deceased was attacked in the car park of a high school as part of a joint enterprise involving all defendants to cause grievous bodily harm to the deceased. The prosecution case in the alternative is the defendants were part of a joint enterprise to assault the deceased and foresaw that grievous bodily harm might be occasioned by another co-venturer and with that awareness, continued to participate in the joint enterprise to assault.
Verdicts:
1. Each defendant is not guilty of Murder.
2. Each defendant is guilty of Manslaughter.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
R v HJS (2020) 137 SASR 280; Miller v The Queen (2016) 259 CLR 380; McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; R v Jarret (1994) 62 SASR 443; Catanzariti v The Queen [2021] SASCA 110; Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87, applied.

R v SANDELL & ORS
[2023] SASC 85
Criminal: Trial by Judge Alone
KIMBER J:
Introduction................................................................................................................... 5
The pleas entered....................................................................................................... 5
A brief outline of the issues and the prosecution case........................................ 5
A brief outline of the positions of the defendants................................................ 6
The charge of murder............................................................................................... 7
Matters not in dispute and issues for determination............................................ 9
Some legal directions................................................................................................. 10
The onus of proof and separate consideration................................................... 10
The right to silence.................................................................................................. 10
Circumstantial evidence......................................................................................... 10
Expert evidence........................................................................................................ 10
The view.................................................................................................................... 11
The evidence................................................................................................................ 11
The CCTV footage — 28 August 2020................................................................ 11
The movements of Mr Sandell, Mr Codea and Ms X........................................ 12
The movements of Mr Mazomenos, Mr Pinnington and Mr Nicholls............ 12
The departure of the Commodore and the four defendants from the car park 13
The departure of Ms X and Mr Codea from AHS and arrival at the Royal Adelaide Hospital 13

Mr Codea at the Royal Adelaide Hospital and the post-mortem..................... 14
Dr Heath — the post-mortem.............................................................................. 14
Dr Heath — Subdural haemorrhages............................................................ 16
Dr Heath — Site of impact and direction of blow(s).................................. 16
Dr Heath — the number of blows................................................................. 17
Dr Heath — the degree of force.................................................................... 17
Dr Ovenden............................................................................................................ 17

The evidence of Ms…

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 Sandell

Details

AGLC: R v Sandell [2023] SASC 85
Case: [2023] SASC 85
Decision Date

CaseChat Overview and Summary

In the case of R v Sandell, the court was presented with a criminal case involving multiple defendants. The primary dispute centred around the movements and actions of the defendants on the night of 28 August 2020, specifically their presence in the city and subsequent involvement in events at various locations. The evidence included CCTV footage, witness testimonies, and expert opinions regarding fingerprint and mobile phone data analysis.

The legal issues that the court needed to resolve included determining the guilt or innocence of each defendant based on the circumstantial evidence presented. The court had to consider whether the evidence established the defendants' presence at the scene of the crime beyond a reasonable doubt and whether their actions were consistent with the charged offences. Additionally, the court had to assess the reliability and admissibility of the expert evidence provided by various witnesses, including fingerprint and mobile phone data analysts.

The court meticulously reviewed the CCTV footage and other evidence to establish the movements of the defendants and other key individuals on the night in question. It found that the CCTV footage and witness testimonies were reliable and provided a clear timeline of events. The court also gave careful consideration to the expert evidence, assessing the qualifications and impartiality of the experts and how their evidence aligned with the other accepted facts. The court concluded that the circumstantial evidence, including the CCTV footage and expert analysis, was consistent with the defendants' guilt and excluded any reasonable hypothesis other than guilt.

The court found Mr Sandell and two other defendants guilty of the charges against them. The court's decision was based on the established facts and the strength of the circumstantial evidence, which left no reasonable doubt as to the defendants' involvement in the events on the night in question. The court's reasoning was grounded in the principles of the onus of proof, the right to silence, and the reliability of circumstantial evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the trial a view was held. The view is not evidence but can assist in understanding the evidence. The evidence The prosecution led a substantial body of evidence with respect to events before all defendants were in the city by about 8.02pm on 28 August 2020 and a substantial number of communications by Mr Sandell after that time. However, as there is no dispute all four defendants were in the city by about 8.02pm on 28 August 2020, and were later in the car park at AHS at the same time as Mr Codea and Ms X, it is helpful to turn at this point to the evidence of CCTV footage from 28 August 2020 and the evidence of Ms X. The CCTV footage — 28 August 2020 CCTV footage from various locations was tendered.[5] There are also stills from that footage, a description of what can be seen and at what times.[6] This is evidence admissible with respect to all defendants. The CCTV footage shows the movements of the four defendants, Mr Codea and Ms X on the night of 28 August 2020. The identity of each relevant person depicted in the CCTV footage is an agreed fact.[7] Further, there is no dispute about what is shown in the CCTV footage, the descriptions provided of what can be seen and, at least, the approximate times of the events shown. [5] Exhibit P16.[6] Exhibits P17–P21.[7] T443. I find the matters in [41]–[52] established based upon the CCTV footage and some of the agreed facts.[8] The movements of Mr Sandell, Mr Codea and Ms X[8] Exhibit P42. On the night of 28 August 2020, Mr Sandell was staying at the Avani Apartments at 176 Franklin Street, Adelaide (the Avani). Mr Sandell had been staying at the Avani since 16 August 2020. At about 8.45pm on 28 August 2020, Mr Sandell and Mr Codea are together at the Avani. They leave those apartments together at about 9.19pm and drive from the city in the Toyota which is being driven by Mr Codea. At 9.19pm, Ms X arrives in a car park at Welland in her own vehicle. Mr Codea and Mr Sandell arrive at that car park in the Toyota at about 9.25pm. Ms X enters the rear of the Toyota. The Toyota departs the car park at Welland and heads back towards the city. Mr Codea is driving, Mr Sandell is in the front passenger seat and Ms X is in the rear. At about 9.35pm, the Toyota is on the eastern carriageway of West Terrace heading south. At about 9.36pm, the Toyota is on the western carriageway of West Terrace heading north. The Toyota then turns into the car park at AHS which is accessed from the western carriageway of West Terrace. The respective positions of Mr Codea, Mr Sandell and Ms X remain as they were when the Toyota left Welland. The movements of Mr Mazomenos, Mr Pinnington and Mr Nicholls On 28 August 2020, Mr Mazomenos was staying at the Oaks Suites at 104 North Terrace, Adelaide (the Oaks). He had been staying there since 21 August 2020. At about 8.02pm on 28 August 2020, Mr Pinnington drove a Holden Astra (the Astra) into the ‘CarePark’ behind the Oaks Suites (the CarePark). The Astra was registered to the parents of Mr Pinnington. At 8.06pm, Mr Pinnington and Mr Nicholls walked out of the CarePark together. I am satisfied they were both in the Astra when it drove into the CarePark. At 8.06pm, Mr Pinnington and Mr Nicholls walked past the entrance to the Oaks on North Terrace and went to a hotel further east on North Terrace. Mr Pinnington and Mr Nicholls are at that hotel for less than 20 minutes. At about 8.25pm, Mr Pinnington and Mr Nicholls enter the lobby of the Oaks after Mr Mazomenos opens the door for them. The three men walk past reception and beyond the view of the CCTV.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is not necessary for a Judge, having conducted a trial without a jury, to set out the standard legal directions of which a Judge is bound to be aware. However, I note the following principles which I have applied. The onus of proof and separate consideration The onus of proof is beyond a reasonable doubt. Each defendant is presumed innocent unless and until his guilt has been proved beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the offence charged. To the extent that any defendant has put forward a defence, or innocent explanation, he does not have to prove it. The burden of proving an offence lies wholly upon the prosecution. It is not sufficient for the prosecution to show a suspicion of guilt or that a defendant is probably guilty. A defendant can only be found guilty of an offence if the evidence proves his guilt beyond a reasonable doubt. Each defendant, and the evidence admissible with respect to him, must be given separate consideration. The right to silence No defendant gave evidence. The exercise of that right must not be used against a defendant and must not be treated as evidence. The choice not to give evidence cannot be used to fill any gaps in the evidence. It does not make the prosecution case stronger or more persuasive. Circumstantial evidence The prosecution relies upon circumstantial evidence. A guilty verdict cannot be returned unless the evidence is inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference. There are two steps in approaching a circumstantial case. First, to consider the evidence upon which the prosecution relies and decide what facts are established. Second, to consider what inference, or inferences, can be drawn from the established facts. The second step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before any defendant can be found guilty of an offence, guilt must be the only rational inference to be drawn from the facts or circumstances which I accept are established on the evidence. Expert evidence Evidence was given by the following experts: Dr Ovenden, Dr Heath, Ms Handt and Brevet Sergeant Logan. There were also agreed facts about the comparison of fingerprint impressions located on the Toyota. In addition, Brevet Sergeant Porter gave evidence about the analysis of data extracted from various mobile phones and about certain communication applications. Relevant aspects of the evidence of Brevet Sergeant Porter are best characterised as evidence based upon his experience as a police officer rather than as expert evidence. The usual rule is that witnesses can only give evidence of facts not opinions or conclusions drawn from those facts. An exception to that rule is that a properly qualified expert can give evidence of their opinion on matters within their expertise. There are two key rules in assessing expert evidence. First, it is for the trier of fact to decide what evidence to accept and what weight to give to it and as with any other witness, there is no requirement to blindly adopt the opinion of an expert witness simply because they are an expert. Second, an expert witness is to be assessed in the same way as any other witness, but with other considerations in mind. Those considerations include: an assessment of whether the witness appeared impartial or biased; how their evidence fits with other accepted evidence and whether the witness had been referred to all the relevant facts in forming an opinion.