R v White - [2008] SASC 265

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2008] SASC 265
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
3 October 2008
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appellant convicted by verdicts of jury of one count of aggravated serious criminal trespass and one count of aggravated robbery - one ground of appeal that trial judge failed to correctly and adequately direct jury on issue of recognition - five sub-grounds - another ground that convictions unreasonable or cannot be supported having regard to evidence.
Held: Appeal dismissed.
(Per Duggan, Vanstone and David JJ): Trial judge correctly and adequately directed jury as to issue of recognition.
(Per Duggan, Vanstone and David JJ): Jury's verdict could not be considered unreasonable or not supported by evidence.
(Per Duggan Vanstone and David JJ): As to ground 1.5, Domican does not support proposition that if evidence of identification is fit to be left to jury, the correct approach is for jury to assess that evidence without considering other evidence.
(Per Duggan J): As to ground 1.5, once recognition evidence properly admitted and appropriate warning given, open to jury to consider it in conjunction with other evidence - prosecutor did no more than invite jury to consider recognition evidence in conjunction with other evidence in case - prosecutor's remarks would not have resulted in jury using other evidence to overcome any perceived defects in recognition evidence.
(Vanstone and David JJ): As to ground 1.5, warning as to recognition evidence must be given by trial judge, but once given, it would be illogical and artificial for trial judge to instruct jury to assign recognition evidence weighting before introducing it to remainder of evidence.
Criminal Law Consolidation Act 1935 (SA) s 137(2), s 170(2), referred to.
Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; R v Burchielli [1981] VR 611, applied.
R v Turner (2000) 76 SASR 163, distinguished.
R v Bennett & Ors (2004) 88 SASR 6; R v Coxon (2002) 82 SASR 412, discussed.

R v WHITE
[2008] SASC 265
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: I agree that this appeal should be dismissed for the reasons prepared by David J.
I add these remarks on the complaint raised in ground 1.5 of the grounds of appeal.
In the passage from the prosecutor’s closing address which is set out in the judgment of David J the prosecutor made the point that there was other incriminating evidence in the case in addition to the claimed recognition of the appellant by the victim. He referred to the fact that the person involved…

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 [2008] SASC 265
Case: [2008] SASC 265
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the case of R v White, the appellant was convicted by a jury of one count of aggravated serious criminal trespass and one count of aggravated robbery. The appeal focused on the directions given by the trial judge to the jury regarding recognition and identification evidence, as well as the overarching issue that the jury's verdicts were unreasonable or could not be supported by the evidence presented. The appellant contended that the trial judge had failed to correctly and adequately direct the jury on the issue of recognition and that the convictions were unreasonable or cannot be supported by the evidence.

The court considered the evidence provided by the victim, who testified that she had met the appellant on several occasions, approximately six or seven times, usually in the company of her daughter and her fiancé. The victim described the appellant as being in his 20s or 30s, of short stature, with a crew cut and spiked hair, wearing everyday glasses. She claimed to have a clear, well-lit view of the appellant during the attack and was able to recognise him. The court assessed the credibility of the witness's identification and the reliability of the evidence, considering factors such as the opportunity to observe the appellant, the duration and conditions of the observation, and the degree of certainty demonstrated by the witness.

The court found that the trial judge had provided adequate directions to the jury on the issue of recognition and identification evidence. The court also determined that the jury's verdicts were not unreasonable or unsafe, given the evidence presented. The appeal was dismissed, and the convictions were upheld.

ORDER:
The appeal is dismissed. The convictions of aggravated serious criminal trespass and aggravated robbery are upheld.

Orders

Orders of the court

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Background

Background to the litigation

This appeal primarily concerns the directions the trial judge gave to the jury about recognition and identification evidence. There is also an overarching complaint that the verdicts of the jury were unsafe and unsatisfactory.Background V gave evidence that on 6 August 2004 she was living at Smithfield Plains with her husband and daughter. At that time she was suffering from a number of illnesses, for which since 1994 she had been on medication including Panadeine Forte, morphine injections, muscle relaxants and morphine tablets. She gave evidence that she had undergone several operations to her stomach and was still suffering from a condition whereby she has small, undetected strokes. V gave evidence that on the day of the offences she was in bed watching a midday movie when there was a knock at the door. She was home alone at that time. She got out of bed, went to the door and saw a man standing there. On the prosecution case, that man was Mr Loe. She said she had never seen this person before. He was holding a red folder and told her he was doing a survey. She became suspicious and tried to shut her flyscreen door, but he wedged his foot in between the door and the frame and yelled out “Now”. A hood in the nature of a calico bag was then placed over her head before she was pushed inside and dragged down to her knees. She said she was mumbling, crying and struggling under the hood. She was told to “shut up” and thrown to the ground with a knee placed in her back as the hood was secured. She said she was being slapped and punched to the head. V said she heard two people speaking. After some time, one of the assailants said she could sit on the lounge. Having got to her feet, V used the opportunity to lift the hood to her forehead. When she did that, she was looking directly into the face of one of the assailants, whom she recognised as the appellant. She said she had met the appellant quite a few times through her daughter’s fiancé. Her examination‑in‑chief regarding their meetings went as follows:Q.Could you describe the circumstances of your first meeting with [the appellant].A.I think it was New Years.Q.When you say “New Years” what are you referring to....A.Near Christmas, Christmas time.Q.Do you know what year it was.A.No.Q.What happened.A.He just came around and we had a pool table at the time and he used to shoot pool with my husband and [my daughter and her fiancée] and my other children.Q.On that occasion how long did [the appellant] stay at your house for.A.He stayed two, three hours, sometimes not very long.Q.Did you speak with him.A.Yes.Q.How long did you speak with him for.A.I’d speak to him, you know, general occasional talk, you know.Q.Did you see [the appellant] on any other occasions.A.No.Q.How many times had you met [the appellant].A.Quite a few times. I couldn’t say how many. He was always with [my daughter and her fiancé].Q.Are you able to recall any specific details about other times that you met [the appellant]....A.Not really, no. Because most of the time I was sick in bed.Q.Was there any way you could perhaps indicate to the jury how many times it was that you met [the appellant]. Can you limit it down any further than you have.A.Yes, I’d say about six or seven times.Q.Although you might not be able to recall exactly what happened when you met him, do you recall how long you spent with him on those occasions.A.Not very long, about half an hour....Q.Do you recall if you spoke with him at all on those occasions.A.Yes.Having lifted the hood up to her forehead, she said she had a clear, well‑lit view of the appellant. She was asked to describe the appellant as she saw him at that time, starting with his height:A.Like my husband, he’s short.Q.What was his build.A.On the chubby side.Q.Did you make any observations in relation to his age.A20s, 30s.Q.What about his hair, did you make any observations as to that.A.Always had a crew cut and a little bit spiked at the top (INDICATES).Q.What colour was it.A.A blonde colour, browny.Q.You mentioned some glasses before.A.Yes.Q.What type of glasses were they.A.Reading glasses - well, everyday glasses....Q.You stated that you recognised [the appellant], can you see that person in court today.A.Yes.Q.Can you indicate that person to the members of the jury.WITNESS INDICATES [THE APPELLANT].She said that upon seeing the appellant, she called him by his first name and asked “why are you doing this to me?”. He did not respond. She turned around and ran to a neighbour’s place, from where she called the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would reject that ground of appeal.Conclusion For the reasons given above, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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