R v White - [2011] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2011] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
19 August 2011
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Appeal against conviction - appellant charged and found guilty by majority jury verdict of the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) - aggravating factors were that the appellant committed the offence in company with another person and that the appellant used an offensive weapon - trial involved circumstantial evidence in relation to identify of appellant.
Whether the trial judge erred in admitting into evidence the evidence of text messages from the mobile phone of the co-accused to establish a link between the co-offenders - whether the trial judge failed to give adequate directions to the jury concerning identification evidence.
Held: Appeal dismissed - trial judge correct to admit the evidence of the text messages for limited non-hearsay use - directions issued by trial judge to the jury concerning the identification evidence were adequate in the circumstances.
Criminal Law Consolidation Act 1935 (SA) s 137(1); Evidence Act 1929 (SA) s 59B, referred to.
Domican v R (1992) 173 CLR 555, applied.
Kanaan v R [2006] NSWCCA 109, discussed.
R v Sparrow [2009] SASC 206, considered.

R v WHITE
[2011] SASCFC 89

NYLAND J. I agree that permission to appeal should be granted but the appeal should be dismissed for the reasons expressed by Anderson J.
ANDERSON J.
Introduction
This is an application for permission to appeal against conviction. Permission to appeal was refused by a single judge of the Supreme Court on 13 May 2011. The Full Court heard the application and the appeal at the same time.
The appellant, Hayden David White, was jointly charged on information with a second person, CVE, with the offence of Aggravated Robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence allege that the appellant and CVE on 8 May 2010 at Surrey Downs used force against the complainant in order to commit the theft of a wallet, cash, keys and bank and identification cards in the sum of approximately $150.00. It is further alleged that they committed the offence in company with each other and another person. It is further alleged that the appellant used an offensive weapon, namely a shotgun, when committing the offence.
The appellant was convicted of the offence of aggravated robbery by a majority jury verdict following a trial in the District Court. The maximum penalty for the offence is life imprisonment.
The only issue at trial in relation to the appellant was that of identification. The issues on appeal are whether the trial judge erred in admitting certain evidence before the jury and whether the trial judge failed to give adequate directions to the jury…

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 White

Details

AGLC: R v White [2011] SASCFC 89
Case: [2011] SASCFC 89
Decision Date: 19 August 2011

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated robbery under section 137(1) of the *Criminal Law Consolidation Act 1935* (SA), where the aggravating factors were the commission of the offence in company and the use of an offensive weapon. The central issue at trial was the identification of the appellant as the male offender. The appeal raised two primary questions: whether the trial judge erred in admitting evidence of text messages from the co-accused's mobile phone to establish a link between the offenders, and whether the trial judge provided adequate directions to the jury regarding identification evidence.

The court was required to determine the admissibility of text messages from the co-accused's mobile phone, specifically a contact saved as "Haydez" and references to "Hayden" in messages, to establish a connection between the co-accused and the appellant. The appellant argued this evidence was inadmissible hearsay, as it relied on the truth of an out-of-court identification of the phone's owner, and was more prejudicial than probative. Additionally, the court had to assess whether the trial judge's directions to the jury on identification evidence were sufficient in the circumstances of the trial.

The Full Court of the Supreme Court of South Australia dismissed the appeal. The court held that the trial judge was correct to admit the text message evidence for a limited, non-hearsay purpose, allowing the jury to infer a connection between the co-accused and a person referred to as "Haydez" or "Hayden," which the prosecution contended was the appellant. This evidence was considered admissible at common law as circumstantial evidence. Furthermore, the court found that the directions provided by the trial judge to the jury concerning identification evidence were adequate, particularly given the brevity of the trial and the freshness of the evidence in the jury's minds.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

The only issue at trial in relation to the appellant was that of identification. The issues on appeal are whether the trial judge erred in admitting certain evidence before the jury and whether the trial judge failed to give adequate directions to the jury concerning identification evidence. Background The prosecution led evidence at trial that late in the evening of 7 May 2010 two persons, one male and one female, attended the residential premises of the complainant. Upon hearing a knock at the front door, the complainant opened the front door. It was dark and the complainant used a torch for illumination. The only other illumination in the house was in the kitchen and that was with candles. Outside were two persons, one male and one female. The complainant recognised the female offender as CVE but did not know the male offender. The complainant and CVE had met on a few occasions and had smoked marijuana together. The two offenders entered the complainant’s house and made their way into the kitchen with the complainant. The male offender demanded to know what type of drugs the complainant had in the house. The complainant’s house had been raided by police some weeks earlier and approximately 50 cannabis plants had been seized. The complainant told the male offender that he only had a small amount of cannabis and no other drugs. The male offender became agitated and accused the complainant of lying and concealing additional drugs. After some further discussion, the male offender produced a shotgun with which he then threatened the complainant. At this point CVE left the house. This occurred at approximately 2.00 am on 8 May 2010. The male offender threatened to take the complainant hostage and forced the complainant to leave the house with him. After further discussion, the male offender left the complainant’s house taking with him the complainant’s wallet, cash keys and bank and identification cards in the sum of approximately $150.00. The complainant reported the matter to police some 18 hours after the offenders left the premises. Six days later on 14 May 2010, the complainant participated in a photographic identification process conducted by the police. The complainant identified photograph 7 in a folder of photographs as being a photograph of the male offender. Photograph 7 is a photograph of the appellant. The prosecution led circumstantial evidence to link the appellant to the crime and in particular to CVE. Such circumstantial evidence included evidence of the contact “Haydez” saved in CVE’s mobile phone and a reference to “Hayden” in one of the text messages on CVE’s mobile phone.Grounds of appeal The grounds of appeal raised by the appellant are:1.The learned trial judge erred in admitting as evidence before the jury the existence of text messages contained in the phone of CVE.2.The learned trial judge erred by finding that his discretion was not enlivened to exclude the evidence of photo board identification.3.The learned trial judge failed to give adequate directions concerning identification evidence.

Evidence

Evidence Before The Court

The learned trial judge ruled after the voir dire hearing that the evidence of the content of the text messages, which was hearsay evidence, was to be excluded from the trial. His Honour stated:For those reasons, I would exclude from the trial evidence of the text messages on [CVE’s] mobile phone, that is, all of them, and any evidence that relies on those text messages….Submissions of Counsel regarding Mobile Phone Evidence Counsel for the appellant, Mr Graham, submits that the trial judge erred in admitting as evidence before the Jury the existence of text messages and the saved contact “Haydez” contained in CVE’s mobile phone. Mr Graham submits the prosecution led this evidence for the purpose of establishing a link between the appellant and CVE. He argues that linking the two accused by the text messages and the saved contact is a hearsay use as the process relies on the truth of an out of court identification of the owner of the telephone number. Mr Graham argues that the evidence of the contact saved on the phone is insufficient to give rise to evidence of an association between the appellant and CVE as:·There is no evidence that the phone number saved to the contact Haydez belonged to the appellant;·There is no evidence as to when the Haydez was stored to the contact;·The phone was found in possession of the appellant;·Large amount of numbers can be stored in a phone; and·There was no other evidence of association between the appellant and CVE. Mr Graham submits in the alternative that if the messages have an original use they should have been excluded as more prejudicial than probative. He submitted that the probative value of the messages was slight as there is no evidence that the phone number belonged to the appellant and the messages were the only piece of circumstantial evidence linking the two accused. It was further submitted that the messages were prejudicial because the appellant had no means to challenge the veracity of the evidence or cross examine to establish the context they were made in or whom they were sent to. It was agreed by Mr Graham during this appeal that the mobile phone in question belongs to CVE, the co-accused. However, it is an agreed fact from the trial that the phone number stored in CVE’s mobile telephone for “Haydez” was not registered to Hayden White. Mr Illingworth, for the respondent, submits that it is the respondent’s position there was no point leading any evidence about phone numbers. It is submitted that the respondent was simply leading evidence for the purpose of demonstrating a link between CVE and a person called Haydez and a person called Hayden. Mr Illingworth submits that the trial judge did not err in admitting the text messages and the saved contact “Haydez” into evidence. The evidence was not admitted for a hearsay purpose, but was limited to evidence of a connection between CVE and a person called “Haydez” or “Hayden”, which the prosecution asked the jury to infer referred to the appellant. Mr Illingworth submitted that s 59B of the Evidence Act is not the only route available to the admissibility of the evidence, and the evidence was rightly admitted at common law for the reasons described in terms of being circumstantial evidence.

Decision

Reasons for decision

NYLAND J ANDERSON J DAVID J (dissent)

I agree with Mr Illingworth that in these circumstances these directions were sufficient, given that the trial was conducted over only three days, and the evidence was fresh in the minds of the jury.Conclusion In my view the directions given in this case, as set out at [25], were appropriate. I would grant permission to appeal but I would dismiss the appeal. I would grant permission to appeal but would dismiss the appeal. I agree with the reasons of Anderson J.

Ratio Decidendi

Legal Principle Established

Established by: NYLAND J, ANDERSON J,

Full text does not contain this section.