R v Totolas
[2005] SASC 473
•14 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TOTOLAS
Judgment of The Court of Criminal Appeal
(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.
Criminal Law Consolidation Act 1935 s 21, s 85(3), s 134, s 137, s 170(2), referred to.
Jones v R (1997) 191 CLR 439; MacKenzie v R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; R v Blair & Kipa [2005] SASC 319; R v Hansen (2002) 84 SASR 54; R v Kirkman (1987) 44 SASR 591, considered.
R v TOTOLAS
[2005] SASC 473Court 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 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 2
Statement of Offence
Causing Grievous Bodily Harm with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul 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 3
Statement of Offence
Damaging Property. (Section 85(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul 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 4
Statement of Offence
Aggravated Robbery. (Section 137 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul 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 5
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul 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.
Whilst the group was congregated at the car park, Mr Thomson observed another group of young men and women approaching his group. He said that they were walking quite aggressively. There were three men at the front of the group and, according to a number of witnesses, each was armed, one with a baseball bat, one with a pole and one with a cricket bat. Mr Thomson’s group dispersed, and he ran back to Ms Edwards’ unit. A number of people from the group that had been approaching chased him. He saw one member of the group carrying a baseball bat. As Mr Thomson approached the unit, he saw Adam Whitlock and Erin Lang. They followed him inside the unit. He locked and chained the wooden door, and the three of them then went into the bedroom where Ms Edwards was sleeping.
Mr Thomson and the others heard banging on the windows and the front door. Then they heard the front door being broken open. The intruders moved to the bedroom door. The men in the bedroom were holding the bedroom door shut. The bedroom door was broken and forced open. Mr Thomson and Ms Edwards saw a baseball bat breaking through the door. Three men entered. Each was armed, one with a baseball bat, one with a steel pole and one with a cricket bat.
As the men were breaking into the room, Mr Whitlock dialled 000 on his mobile phone. As he was speaking on the phone, Mr Thomson yelled at him to get the girls out. He threw the mobile phone to Ms Edwards and pulled the flyscreen off the window. He and Ms Lang jumped out of the window on to a pergola, and then to the ground. The man with the baseball bat started swinging it at Mr Thomson. Mr Thomson was hit in the head, in the face and on the arms. He was knocked to the floor. He was also assaulted by the man with the pole, who also hit him in the face and on his body. During the assault, Ms Edwards observed the man with the baseball bat and the man with the black pole hitting Mr Thomson. The man with the baseball bat commenced the assault. She recalled that the first blow hit Mr Thomson across the face and blood started to come from his mouth. Ms Edwards was on the bed with the mobile phone. She spoke to the police whilst the three men were assaulting Mr Thomson. At some stage, having assaulted Mr Thomson, the man with the baseball bat turned to Ms Edwards and demanded that she hand over the mobile phone. She was petrified and she dropped the phone, which the assailant picked up. The men ran out of the room.
Mr Thomson was taken to the Queen Elizabeth Hospital suffering from head injuries and a broken arm. He suffered a depressed central fracture to the skull, which extended down the sinus area of the face and to the right eye area of his face. He also suffered a fractured left arm, injuries to his forehead and lower lip, which required sutures. He was kept in intensive care at the hospital for thirty six hours.
Ms Caroline Naudin visited Ms Edwards at her unit on the evening of the incident. She was one of those who went to the car park from the unit. She left her handbag containing $30 cash, a discman and a disc at the unit. After the incident, she returned to the unit. Her handbag had been emptied, and the money and other items had been removed.
Mr Bennett had left a camera in the unit, which was taken. Also taken were Mr Thomson’s sunglasses. A mobile phone, which was black and green in colour and which belonged to Ms Lang, was also taken. A number of these items were discovered by police outside the unit in the near vicinity of it. The money from Ms Naudin’s handbag was not recovered. A wallet containing credit cards, which belonged to Mr Whitlock, was taken from the unit. It was not recovered.
It was the prosecution case that this property had been taken during the home invasion and discarded by the invaders when they decamped after they had realised that the police had been telephoned. The mobile phone which had been taken from Ms Edwards, and which belonged to Mr Whitlock, was subsequently found by police in a drawer in a chest of drawers in the appellant’s room in a unit at 245 Tapleys Hill Road, Seaton. Police also located two gold bracelets, three necklaces and three rings, some of which appeared to have blood on them. The appellant gave evidence that he had been wearing the jewellery on the night in question, and that the blood on the jewellery was his own from an assault upon him earlier that night.
The police found the baseball bat in the driveway of adjacent premises to the units. They also found a metal pole on the footpath near the units. They found the cricket bat nearby.
Senior Constable Surman, a crime scene investigator, attended at the unit at 6/9A Clarke Terrace on 29 December 2003. He collected samples of blood from an area on a wall between the bathroom and the bedroom and from the bedroom door. He also collected a sample of blood from the rear of the cricket bat which had been found outside the unit. Samples were also taken from the head and handle of the baseball bat. As to the samples taken inside the unit, DNA examination of them led to the conclusion that the samples on the wall and the bedroom door contained DNA from which the appellant could not be excluded. DNA matching the appellant was also found in the samples from the cricket bat, and from the baseball bat. There was also a sample of blood from the head of the baseball bat, which contained DNA which matched Mr Thomson’s DNA. Samples collected from the metal pole contained four different DNA sources which could not be positively identified. There was blood on the floor which matched the DNA profile of Mr Thomson.
Identification
No witness was able to identify the appellant. On 15 September 2004, Mr Thomson was shown an array of fifteen photographs. Amongst the photographs was a photograph of the appellant. Mr Thomson could not positively identify the photograph of the appellant. However, he did pick a photograph of the appellant and said that his assailant looked like the appellant. In evidence, Mr Thomson described the person carrying the baseball bat as having slightly tanned skin, about six feet in height, of stocky build, weighing about eighty to eighty five kilograms, with not much hair, and wearing a black singlet.
Ms Edwards described the man with the baseball bat as being quite stocky, probably five feet to five feet nine inches in height, wearing a baseball cap backwards, a fair complexion but not completely pale, dark eyes, clean shaven, wearing a T-shirt and three-quarter length to the knee shorts. She described the man with the pole as being about six feet to six feet one inch tall, and lanky with a bit of stockiness to him, with an olive complexion, not completely shaven, and with a large nose. The man with the cricket bat was described as being about five feet six inches, a lot shorter than the other two, of bigger build, with dark hair, and with a beard. She described the beard as not being a full beard.
Ms Lang described the man with the baseball bat as being stocky, of medium height, wearing a white top. She described the man with the pole as wearing a light blue T-shirt, shorter hair and not as stocky. She described the man with the cricket bat as being of medium build.
Mr Whitlock was unable to describe any of the men who entered the unit that evening.
Mr Bennett was in the car park with Mr Thomson and others when he observed a group of young men approaching. One of the men was carrying a silver baseball bat. Mr Bennett saw Mr Thomson running away towards the units. He drove his car away from the area. He described the man with the baseball bat as having short blonde hair, about one hundred and eighty centimetres in height, and muscular, weighing about one hundred to one hundred and five kilograms. He described the person as having a small goatee brown beard.
Mark Sullivan was also in the car park. He was seated in Jeffrey Lim’s car. He noticed the group walking towards the cars where he and his friends were standing. He observed three of the men holding instruments which he described as a pole, a cricket bat and a baseball bat. He got into Mr Lim’s car and Mr Lim drove off. He observed the group, and in particular the three men who were running ahead of the group. Sullivan described the person with the baseball bat as about five feet ten inches tall, reasonably big, darkish-light skin, a blue or black cap, with a dark shirt, and bluish jeans or track pants. He was unable to recall whether the person had any facial hair. He described the man with the cricket bat as having short shaved hair, wearing a Dada shirt, gold and white, dark pants, and wearing a bracelet on one his wrists. He described it as a “decent size chain”. The man with the pole had olive skin, thin build, and about the same height as the other men. He appeared to be wearing a hat, and he wore dark clothing.
Mr Lim also gave evidence about what he saw. He observed a group coming towards the cars. He drove off. He saw a person with a baseball bat, a person with a cricket bat, and a person with a pole. The person with the baseball bat was about five feet nine inches in height. Mr Lim could give no more detail. The person with the cricket bat was fairly big, with light coloured skin, wearing a gold or light shirt. He was unable to provide a more detailed description. He observed a third person in front of the group, but was unable to say whether that person was carrying anything.
Mr Lukac lived in a unit on the second level at 9A Clarke Terrace, Seaton. He was awakened that evening by loud banging noises coming from unit 6. Eventually, he went outside because the noise was keeping him awake. He saw a man standing at the front, who was about one hundred and eighty centimetres tall, and he described him as being a little skinny and white-skinned. He heard the man screaming, “Come on, let’s go, let’s go, let’s go”. He then saw a second person come from inside the unit. The second person looked as if he was carrying a baseball bat. He was shorter than the first person, of stocky build, with a bit of muscle on him. The man was wearing a thick gold necklace. He was wearing a creamy-coloured tank top.
He said he only saw the two people come out of the unit. He said that shortly after he went to the unit to see what had been going on, and he saw people, including Mr Thomson, who had a bloodied head.
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.
There was a strong circumstantial case that the appellant was one of the three men who broke into Ms Edwards’ unit that morning. The jury must have rejected the defence case, that somehow the appellant’s blood got on to the baseball bat in the earlier fight, and was somehow transferred to the wall and door of Ms Edwards’ unit. The jury must have concluded that his explanation about finding the mobile phone the following morning was not credible. It is not surprising that the jury was satisfied that he was one of the three people who entered the unit that morning. The explanation as to why the jury acquitted the appellant of three counts relating to the assault can be explained by the manner in which the prosecutor put the case and the way in which the trial judge directed the jury.
The prosecutor opened to the jury that the evidence to be adduced by the prosecution relevant to counts 1 to 4 was sufficient to satisfy the jury of the following: that the appellant was one of the three men who burst into the premises; that the appellant was the man carrying the baseball bat; that at the time the appellant entered the premises he intended to inflict grievous bodily harm upon one or more persons in the unit; that it was the appellant who damaged the bedroom door by striking it with a baseball bat; that it was the appellant who caused grievous bodily harm to Stuart Thomson intending to do him grievous bodily harm; and that it was the appellant who threatened Ms Edwards with the baseball bat and stole her mobile phone.
As to the fifth count, the prosecutor presented the case on the basis of a joint enterprise involving the three assailants. He put to the jury that it was the prosecution case that the appellant was a party to stealing the property which was later found by police near the units.
It is difficult to understand why the prosecutor restricted the case against the appellant to a joint enterprise only in respect of count 5. There was evidence that the three people who entered the premises in the early hours of the morning were acting jointly, and it was open to the jury, if they had been so directed, to consider the question of joint enterprise in respect of all the offences. The manner in which the case was presented to the jury had the potential to confuse the jury. It is difficult to understand why the case was not presented to the jury on the basis that the three assailants acted in pursuance of a joint enterprise and common purpose in entering the premises, in attacking the occupants, in breaking down the door of the bedroom and damaging it, and in stealing Ms Edwards’ mobile phone.
The summing up
The trial judge directed the jury of the elements of each count. As to count 1, he directed them that they must be satisfied beyond reasonable doubt that the accused was one of the three persons who entered the flat and that they must be satisfied that he had the necessary intention to commit an offence of causing grievous bodily harm. As to counts 2, 3 and 4, the trial judge directed the jury that they must be satisfied beyond reasonable doubt that it was the appellant who caused the grievous bodily harm to Mr Thomson, that it was the appellant who caused the damage, and it was the appellant who threatened and took the mobile phone from Ms Edwards. As to count 5, the theft, the trial judge directed the jury that the appellant could be convicted if the jury were satisfied beyond reasonable doubt that either he himself took the items, or that he was a party to a joint enterprise with others who took the items. The trial judge restricted his direction on joint enterprise to only the fifth count. He gave the following direction:
The Crown case is that you should be satisfied beyond reasonable doubt that the three men who entered the unit took these items dishonestly and without consent pursuant to their common purpose, agreed upon at the time of their presence in the unit or earlier intending to permanently deprive the owner or to seriously interfere with his or her rights in relation to the respective items of property.
If you are satisfied that there existed such a joint enterprise as at to the elements of the offence of theft and that the accused was there, then even though there is no evidence as to who took what your verdict will be guilty.
As I have said, it is somewhat surprising that that is the way in which the prosecution limited its case but, nevertheless, the trial judge summed up the case in accordance with the way in which it had been presented by the prosecutor.
A written memorandum
At the conclusion of the case, and before counsel addressed, there had been a discussion about a written memorandum that the trial judge proposed to provide to the jury to assist them in their deliberations. The written memorandum dealt with the elements of each offence. In the written aide memoir, the direction on counts 2, 3 and 4 specifically referred to “the accused”. The written direction in respect of count 5 made no reference to “the accused”, but was limited to the elements of the offence. The heading in respect of count 5 was “Theft (as a joint enterprise)”. That was the only reference to joint enterprise in the written aide memoir. In the course of discussion about that memorandum, the following exchange took place between the trial judge and counsel for the appellant:
MR WHITE: The elements. I think, on reflection, I would ask your Honour to consider count 5, putting either in the appropriate place your Honour sees, or as point 4, the heading ‘common purpose’ or ‘joint enterprise’ because that, as I understand the Crown case, is the only –
HIS HONOUR: Yes, that’s what I’ll do. What I’ll do is deal with all of the other matters and then, before I come to count 5, I’ll give them a joint enterprise direction and point out to them that this count in relation to the matters that were found in the street and the matters that were taken and otherwise not found, that are referred to in the information, is a joint enterprise.
MR WHITE: I don’t mind if your Honour wishes to reflect that in your Honour’s document, too.
HIS HONOUR: I’ll think about that.
MR WHITE: Because they will be hearing a lot from your Honour and they will no doubt rely on this to remember what your Honour says. In particular, the Crown case is that the accused is personally responsible for counts 1, 2, 3 and 4.
HIS HONOUR: Yes. Well, I’ll make that point. That’s why I just raised that, to make sure that the Crown case was pitched in relation to joint enterprise only in relation to count 5.
After the jury had been considering their verdicts for approximately four hours, they returned and sought further clarification from the trial judge. The following exchange took place:
HIS HONOUR: Ladies and gentlemen, as you know you have sent two questions. I will just read them out and deal with them individually: ‘Count 3 clarification damaging property. Does the joint enterprise fit this count?’.
Can I tell you by reading from the Crown opening in relation to count 3 what the Crown case is. Mr Preston said this to you on the first day: ‘As far as the prosecution is concerned you can ignore the reference in the third count to reckless indifference’. That’s the words that appear in the particulars of the offence on the information : ‘On the Crown case the assailant smashed the bedroom door intentionally with a view to getting the people that were in the bedroom behind that bedroom door. Again, I remind you ladies and gentlemen of the obvious, the prosecution must prove that it was the accused that damaged the door.’
In that regard can I remind you of the evidence of Michelle Edwards who said that she saw the baseball bat or part of the baseball bat come through the door and she recognised some writing on it because her brother played baseball. And then immediately after that, the door broke down, and in came the three men and it was her evidence, or it’s the Crown case that it was the accused who at that point was holding the baseball bat. So that’s the evidence that relates to the accused being the person who caused damage to the door with the baseball bat.
The second question is headed ‘Aggravated robbery, count 4. Does the joint enterprise fit this count?’ The Crown case quite clearly is that it was the accused, the man with the baseball bat, who the Crown say is the accused, who demanded and took the phone from Michelle Edwards. If I can just read to you again what I said this morning about this, having given you the definition of theft which is the first part of the definition of this offence and discussed those other matters there, I said this: ‘The Crown case is that whilst Michelle Edwards was using the phone passed to her by Adam Whitlock and immediately upon the accused ceasing to beat Stuart Thomson he came to the bed on which she was standing still holding the baseball bat and demanded she give him the phone. She said she was petrified about what he may do to her having seen what had been done to Thomson and just dropped the phone to the bed. She said the man with the baseball bat then picked it up and all three men left the room.’
I then said this: ‘You must also have regard to the evidence of Erin Lang on this topic. You will recall that she said in cross-examination that the man with the cricket bat came towards Michelle Edwards when he entered the bedroom and he attempted to grab the phone from near her ear. At this time Erin said she was standing near the window’.
I said to you: ‘You might think that she was standing behind Michelle Edwards at this time but it is a matter for you.’
Lang said in the transcript in evidence at p.207 line 23: ‘It was happening at the same time. I was out of the window, and he was grabbing.’
I then said to you that Lang did not say in evidence that this man took possession of the phone from Edwards in her sight. Then I spoke about the cross-examination and said: ‘You may recall that there were questions in cross-examination on this topic, but that they were based on the assumption that this man had actually taken the phone from Michelle which is not what Erin Lang said in evidence’.
Then I said: ‘In deciding who it was who took the phone you may have regard to the fact that later that morning it was found in the accused’s bedroom at his house around the corner in Tapleys Hill Road’. And I said: ‘You must be satisfied beyond reasonable doubt that it was the accused who dealt with this mobile phone. You must be satisfied beyond reasonable doubt that Erin Lang was mistaken as to any suggestion that it was other than the man – ‘ sorry ‘You must be satisfied beyond reasonable doubt that Erin Lang was mistaken as to any suggestion that it was the other man who took the phone from Michelle Edwards and that the Crown had disproved beyond reasonable doubt the explanation which the accused gave as to how the phone came to be in his bedroom.
If you are satisfied by the evidence of Michelle Edwards then you will consider the second element of this offence’. I am now talking about the first: ‘If you are not satisfied by her evidence, then your verdict on this count will be not guilty’.
So the essence of that is that before you can be satisfied that it was the accused who took the – sorry the person with the baseball bat who took the phone you must be satisfied that the evidence of Erin Lang was wrong and that you prefer and accept the evidence of Michelle Edwards on this matter.
I don’t think I can take it any further. Thank you. I invite you to retire.
It is clear from the summing up and from the further directions given by the trial judge that the jury were specifically directed that they could not consider the principle of joint enterprise when considering counts 3 and 4. The jury was concerned about whether joint enterprise had any application to counts 3 and 4. There is no reason to doubt that they would have had the same difficulty with count 2. It is not surprising that the jury may have had some difficulty in understanding why the direction about joint enterprise would apply in respect of count 5, but not apply in respect of counts 2 to 4. Nevertheless, that was how the matter was left.
The questions and verdicts of the jury demonstrate that they were satisfied beyond reasonable doubt that the appellant was one of the three people who entered the unit, and that he was part of a joint enterprise with the other assailants to steal the various items particularised in count 5.
The appellant’s submissions
Counsel for the appellant submitted that the verdicts of the jury were inconsistent and, therefore, unsafe and unsatisfactory. The appellant had given evidence that he was not one of the three persons involved in the attack upon Mr Thomson, nor did he enter the unit that evening. Counsel submitted that the convictions on counts 1 and 5 could not stand, as the acquittals on counts 2 to 4 were inconsistent with those convictions. In summary, it was counsel’s submission that once members of the jury had concluded that they were not satisfied beyond reasonable doubt that the appellant damaged the door to the bedroom, inflicted the grievous bodily harm upon Mr Thomson, and stole the phone from Ms Edwards, it followed that the jury could not have been satisfied beyond reasonable doubt that the appellant was present inside the unit at the time of the attack.
Counsel referred to the descriptions that were given by various witnesses of the person with a baseball bat. He submitted that the jury could not have been satisfied beyond reasonable doubt that it was the appellant who was carrying the baseball bat. There was further circumstantial evidence upon which the jury were asked to conclude that the appellant was the man with the baseball bat, and that included the evidence of blood inside the unit containing his DNA, and blood on the baseball bat which contained his DNA.
Counsel submitted that the jury must have rejected the submission that the only rational inference to be drawn from the evidence was that the appellant was the person with the baseball bat. He submitted that, therefore, the jury must have been left with a reasonable doubt about whether the appellant had entered the unit.
I do not agree. It was open to the jury, having regard to the way in which the case was left to them, to be satisfied beyond reasonable doubt that the appellant was one of the three people who entered the unit that evening. It was open to them to draw that conclusion on the whole of the evidence and, in particular, the evidence of the appellant’s blood being found on the wall and inside the premises. Further, the jury must have rejected the appellant’s explanation as to how the mobile phone, which had been taken from Ms Edwards and which belonged to Mr Whitlock, came to be in a drawer in the appellant’s bedroom. The jury was entitled to regard the discovery of the phone in a drawer containing the appellant’s clothing as circumstantial evidence, supporting a conclusion that the appellant was present inside the unit that evening.
The jury may well have concluded that the detailed descriptions given of the events which occurred inside the unit were confused, having regard to the circumstances in which the entry and the subsequent assault took place. Those inside the unit were petrified by what was occurring. Their recollections of how events unfolded may well have been confused, given the terrifying circumstances with which they were confronted, and a jury may well have concluded that they could not be satisfied beyond reasonable doubt that it was the appellant who inflicted the injuries and the damage to the door.
Inconsistent verdicts
Before an appellate court will overturn a verdict of a jury on the ground that the jury’s verdicts were inconsistent, the appellant must satisfy the court that the convictions cannot stand, as the conclusions are illogical and unreasonable. An appellate court is reluctant to overturn a conviction unless it is clearly shown that the verdict cannot be reconciled with a verdict of not guilty arising out of the same set of circumstances.[1]
[1] See R v Kirkman (1987) 44 SASR 591 at 593.
In order to succeed, the appellant must satisfy the court that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion. An appellate court will always be reluctant to accept that verdicts are inconsistent unless it can be shown that there is no proper way to reconcile them. The appellate court should not substitute its views of the facts for those of the jury. Nor should the appellate court attempt to draw conclusions about how the jury may have arrived at the verdicts. There is little point in attempting to identify the process of reasoning a jury followed in any particular case. There are many factors which will influence jurors in arriving at their decisions. The court will not substitute its own reasoning in considering whether a verdict is unsafe and unsatisfactory on the grounds of inconsistent verdicts. It is only if the court concludes that no reasonable jury could have arrived at the result that the court will interfere.[2] If the conclusion is open to the jury and it cannot be shown that it is unreasonable or illogical, the appeal must fail.
[2] See MacKenzie v R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; Jones v R (1997) 191 CLR 439; R v Hansen (2002) 84 SASR 54; R v Blair & Kipa [2005] SASC 319.
Given the way in which the case was left to the jury, it cannot be said that the conclusion the jury reached was either illogical or unreasonable. Having regard to the way in which the jury were required to consider the case, it was open to them to conclude that the appellant was one of the three who entered the unit. It was open to them to conclude that the decision to steal was made on the spur of the moment and that the appellant went along with it and, by his conduct, was party to a joint enterprise to steal. It was open to the jury to conclude that they were not satisfied beyond reasonable doubt that he was the person who was responsible for the injuries to Mr Thomson, the damage to the door, or directly responsible for the theft of the mobile phone from Ms Edwards.
The jury would have had regard to the trial judge’s direction that they must consider each count separately. There was nothing illogical or unreasonable in arriving at the conclusion that they did.
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.
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