R v Weetra - [2004] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
3 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE
Appellant convicted of aggravated serious criminal trespass in a place of residence - Group of men entered victims' home, using force - Victims assaulted and jewellery, money and other items of value stolen - Circumstantial case - Victims could not identify assailants but said they had dark skin - Appellant Aboriginal - Appellant lived in same street as victims - Some stolen jewellery found outside appellant's house - Traces of DNA belonging to male victim found on appellant's jeans - Appellant's case was that his jeans had been contaminated by transfer of blood from victim's house - Police officers who attended appellant's house had previously been at victim's house - Whether jury must have entertained a reasonable doubt - Whether trial judge erred in failing to emphasise possibility of contamination in summing up - Verdict not unsafe - No miscarriage of justice resulted from judge's directions - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137, s 170, s 352, referred to.
R v Shueard (1972) 4 SASR 36; Domican v The Queen (1992) 173 CLR 555; R v Carbone (No 2) (1976) 14 SASR 280; R v Perks (1986) 43 SASR 112; R v Aziz [1982] 2 NSWLR 322, applied.
M v The Queen (1994) 181 CLR 487, considered.

R v WEETRA
[2004] SASC 337
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by White J. There is nothing that I wish to add to his reasons.
BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons for judgment of White J and there is nothing I wish to add.
WHITE J
Introduction
This is an appeal against conviction, by leave of a Judge of this Court, pursuant to s 352(1)(a)(i) of the Criminal Law Consolidation Act 1935 (SA).
Following a trial by jury in the District Court, the appellant was found guilty, by a majority verdict, of aggravated serious criminal trespass in a place of residence, in contravention of s 170(2)(b) of the Criminal Law Consolidation Act, and robbery with violence, in contravention of s 137 of that Act. The Crown case was that the accused, using force, entered the victims’ premises in company with three or four other men. Once…

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 Weetra

Details

AGLC: R v Weetra [2004] SASC 337
Case: [2004] SASC 337
Decision Date: 3 November 2004

CaseChat Overview and Summary

The appellant, Weetra, was convicted of aggravated serious criminal trespass in a place of residence. A group of men forcibly entered the victims' home, assaulting them and stealing jewellery, money, and other valuables. The case against the appellant was circumstantial; the victims could not identify their assailants but noted that they had dark skin. The appellant, who was Aboriginal, lived on the same street as the victims. Stolen jewellery was found outside the appellant's house, and DNA from one of the male victims was detected on the appellant's jeans. The appellant argued that his jeans had been contaminated by blood transferred from the victims' house, a claim that was not disputed by the prosecution.

The primary legal issues before the court were whether the jury must have entertained a reasonable doubt given the circumstantial nature of the evidence, and whether the trial judge erred in not sufficiently emphasising the possibility of contamination in the summing up. The court examined whether the trial judge's directions led to an unreasonable or insupportable verdict and whether there was a miscarriage of justice due to the judge's failure to adequately address contamination concerns.

The court found that while it would have been preferable for the trial judge to have explicitly directed the jury's attention to the importance of the contamination issue and the necessity for them to exclude it as a reasonable possibility, it did not believe that a miscarriage of justice had resulted from the judge's directions. The court concluded that the verdict was not unsafe and that no miscarriage of justice had occurred.

Accordingly, the appeal was dismissed. The court held that despite the shortcomings in the trial judge's directions, the evidence was sufficient to support the jury's verdict, and no reasonable doubt remained after considering all the evidence, including the possibility of contamination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, although I consider that it would have been desirable for the trial Judge to have expressly directed the jury’s attention to the importance of the issue, and for the need for them to exclude contamination as a reasonable possibility, I do not consider that a miscarriage of justice has resulted from the trial Judge’s directions.Conclusion Accordingly, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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