(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction - appellant charged with aggravated serious criminal trespass in a place of residence (count 1), causing grievous bodily harm with intent to do grievous bodily harm (count 2), damaging property (count 3), aggravated robbery (count 4) and theft (count 5) - the Crown case, as to counts 1 and 2, was that the appellant forcibly entered the premises of Ms E, with others, and that he was involved in an assault upon Mr T at the premises - it was further alleged that whilst inside the premises he damaged a door and robbed a victim of a mobile phone (counts 3 and 4) - further the Crown case was that he and the others stole property inside the unit (count 5) - joint enterprise was left to the jury on count 5 only - appellant convicted of counts 1 and 5, and acquitted of counts 2, 3 and 4 - whether verdicts were inconsistent and therefore unsafe and unsatisfactory - appeal dismissed.
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ
DOYLE CJ: I would dismiss the appeal against the appellant’s conviction on count 1 and on count 5.
I agree with the reasons given by Sulan J for so deciding. There is nothing that I wish to add to his reasons.
SULAN J
Introduction
This is an appeal against conviction.
The appellant was convicted by a jury of one count of aggravated serious criminal trespass in a place of residence (count 1), and one count of theft (count 5). He was acquitted of a further three counts of causing grievous bodily harm with intent to do grievous bodily harm (count 2), damaging property (count 3), and aggravated robbery (count 4). The only ground of appeal is that the verdicts were inconsistent and the convictions are, therefore, unsafe and unsatisfactory.
The charges
The information alleged the following:
Count 1
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul Spencer George Totalas on the 29th day of December 2003 at Seaton, entered a place of residence of Michelle Lauren Edwards as a trespasser, with the intention of committing an offence therein, namely…
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
AGLC
R v Totolas [2005] SASC 473
Case
[2005] SASC 473
Decision Date
CaseChat Overview and Summary
The appellant, Paul Spencer George Totolas, appealed against his conviction by the Supreme Court of South Australia on various criminal charges, including aggravated serious criminal trespass, causing grievous bodily harm, damaging property, aggravated robbery, and theft. The incident occurred on 29 December 2003, when Totolas and two others forcibly entered a residence in Seaton. The appellant was convicted of counts 1 and 5, namely aggravated serious criminal trespass and theft, while acquitted of counts 2, 3, and 4, which involved causing grievous bodily harm, damaging property, and aggravated robbery. Totolas argued that the verdicts were inconsistent and thus unsafe and unsatisfactory, which led to the appeal.
The key legal issues before the court were whether the verdicts were factually inconsistent and whether the evidence was sufficient to satisfy the jury beyond reasonable doubt on counts 2 to 4. The court examined the consistency of the verdicts and the sufficiency of the evidence presented to the jury. In addressing these issues, the court considered the evidence provided by both the appellant and the prosecution, including DNA evidence, witness descriptions, and the circumstances surrounding the incident.
The court concluded that the verdicts were not factually inconsistent and that the jury's conclusion was neither illogical nor unreasonable. The court held that the jury had enough evidence to convict Totolas of counts 1 and 5, while acquitting him of counts 2, 3, and 4. The court found that the inconsistencies in the verdicts did not necessarily imply that the verdicts were unsafe and unsatisfactory. The evidence presented, including DNA evidence and witness descriptions, was deemed sufficient to support the convictions on counts 1 and 5. The court therefore dismissed the appeal, upholding the original verdicts and convictions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The information alleged the following:Count 1Statement of OffenceAggravated Serious Criminal Trespass in a Place of Residence. (Section 170(2) of the Criminal Law Consolidation Act, 1935).Particulars of OffencePaul Spencer George Totalas on the 29th day of December 2003 at Seaton, entered a place of residence of Michelle Lauren Edwards as a trespasser, with the intention of committing an offence therein, namely an offence against the person, when other persons were lawfully present in the said place of residence and knowing of their presence or being reckless as to whether anyone was in the said place of residence, and further at the time of the said trespass, Paul Spencer George Totolas was in possession of an offensive weapon, namely a baseball bat.Count 2Statement of OffenceCausing Grievous Bodily Harm with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act, 1935).Particulars of OffencePaul Spencer George Totolas on the 29th day of December 2003 at Seaton, unlawfully and maliciously caused grievous bodily harm to Stuart Thomson, with intent to do him grievous bodily harm.Count 3Statement of OffenceDamaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).Particulars of OffencePaul Spencer George Totolas on the 29th day of December 2003 at Seaton, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged a door, the property of Michelle Lauren Edwards, the said damage amounting to less than $2,500.Count 4Statement of OffenceAggravated Robbery. (Section 137 of the Criminal Law Consolidation Act, 1935).Particulars of OffencePaul Spencer George Totolas on the 29th day of December 2003 at Seaton, whilst armed with an offensive weapon, namely a baseball bat, threatened to use force against Michelle Lauren Edwards in order to commit the theft of a Nokia mobile phone and the threat was made at the time of or immediately before the theft.Count 5Statement of OffenceTheft. (Section 134 of the Criminal Law Consolidation Act, 1935).Particulars of OffencePaul Spencer George Totolas on the 29th day of December 2003 at Seaton, dishonestly dealt with property, namely a mobile phone, a pair of sunglasses, a wallet, a Discman and a camera together of the value of $145 and money in the sum of $30, without the consent of Stuart Thomson and others, the owners of that property, intending to permanently deprive them of the property or make a serious encroachment on their proprietary rights.The facts On 29 December 2003, three men entered a unit at 6/9A Clarke Terrace, Seaton. Each of the three was armed, one with a baseball bat, one with a cricket bat and one with a pole. The circumstances leading to the break-in are somewhat confused. There is no dispute that an incident occurred in a car park near the block of units, shortly prior to the three men entering the unit at Clarke Terrace. A young woman, Michelle Edwards, and her friend, Adam Whitlock, resided in the unit. Ms Edwards’ boyfriend, Stuart Thomson, arrived at the unit at about 7 p.m. on the evening of 28 December 2003. Adam Whitlock and his girlfriend, Erin Lang, were there. The two men decided to go for a drive, and they left the unit some time after 8 p.m. They picked up a friend, Matthew Jones, and they drove to the city. They then drove to Glenelg. They returned to the unit at about 10.30 p.m., having dropped Mr Jones back at his home. There were a number of people at the unit, including a young man named Tim Bennett. Mr Bennett received a telephone call at about 11 p.m. and he, together with Mr Thomson and a number of other young men who were at the unit, left the unit and went to a nearby car park area where they met a number of other young men. They congregated in the car park near Mr Bennett’s car. In the past, there had been complaints by neighbours about noises from cars around the units late at night. It was common that young men would meet at the car park to avoid complaints from other residents.
Evidence
Evidence Before The Court
The appellant was arrested in the morning on 29 December 2003. Police had attended at his place of residence and conducted a search. They then travelled to the Queen Elizabeth Hospital and spoke to the appellant, who had admitted himself to the hospital. The officers observed what was described as a puncture wound, consistent with a stab wound, to his left upper back. The appellant told Detective York, one of the officers, that he had sustained the injury whilst working on his car. The appellant’s evidence The appellant gave evidence that at the relevant time, he lived at 245 Tapleys Hill Road. He said that he had been out on the evening of 28 December 2003 and arrived home at about 12.30 a.m. the following morning. He said that not long after he had arrived home, he heard a number of people outside his unit making a noise. He went out to tell them to keep quiet, and one of them threw a bottle filled with something at him. The appellant described it as a Molotov cocktail. The bottle hit the wall of the units. There was a burn mark left on the wall of the unit. He said that he chased the people who had thrown the bottle, and there was a fight on Tapleys Hill Road. He was hit by a baseball bat or a cricket bat on his back, his legs and his arms. He said there were about three people attacking him. He wrestled one to the ground. Eventually they ran off. The others had run off in the same direction. He said that he went back to his home. He did not realise that he had been injured until his girlfriend noticed that he was bleeding. After his girlfriend had told him, he realised that he had suffered a stab wound to his upper thigh and chest. He also suffered a stab wound to the back. His explanation about the blood on his shirt and on the jewellery that he had been wearing was that it must have been as a result of the fight on Tapleys Hill Road. He removed his clothing, which was washed by his girlfriend. He wore a fresh shirt, which was later seized by police. At the time the police seized it, it was bloodstained at the back. He went to sleep and did not seek treatment until the following morning, when he attended at the Queen Elizabeth Hospital. As to the phone that was found in a drawer in his room, he said that the following morning he was walking in the general area around his home and he found the phone and placed it in the drawer. He said that he intended to find the owner after he had done something about the injuries that he had received. He said he knew nothing about the attack on Mr Thomson. He denied that he had told the police that he had received an injury to his back when he was working on his motor car. The prosecution case The prosecution case against the appellant relied on a number of items of circumstantial evidence, which included the blood on the bedroom door through which entry was forced, and the blood on a wall adjacent to that door, the blood on the baseball bat used in the offence, and the blood on the cricket bat, all which contained DNA which matched the appellant’s DNA. Additionally, the presence of the mobile phone in the appellant’s bedroom drawer, and descriptions given by various witnesses that one of the intruders was wearing distinctive jewellery was relied upon as evidence of the appellant being one of the intruders.
Decision
Reasons for decision
It may well be that minds may differ on whether there was sufficient evidence, having regard to the way in which the matter was left to the jury, to satisfy them beyond reasonable doubt that counts 2 to 4 were proved. It does not follow that the conclusion that the jury reached was either illogical or unreasonable.Conclusion I am not persuaded that the verdicts are factually inconsistent. I would dismiss the appeal. WHITE J: This appeal should be dismissed. I agree with the reasons of Sulan J. There is nothing which I wish to add.