R v WHITEHEAD

[2012] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WHITEHEAD

[2012] SASCFC 30

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kourakis)

4 April 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - LIES BY ACCUSED

Appeal against conviction – the appellant was found guilty by a jury of causing harm with intent to cause harm – it was alleged that she injured the victim to his head and upper body – the evidence at trial was wholly circumstantial – whether the verdict was unreasonable or could not be supported having regard to the evidence – whether the trial judge was obligated to direct the jury on the use they could make of answers given by the appellant in an interview with police which could have been perceived to be lies.

Held: Appeal dismissed – the finding of guilty was open to the jury – the failure to give a direction on potential lies could not have led to a miscarriage of justice.

Dhanhoa v The Queen (2003) 217 CLR 1; Edwards v The Queen (1993) 178 CLR 193, considered.

R v WHITEHEAD
[2012] SASCFC 30

Court of Criminal Appeal:  Vanstone, White and Kourakis JJ

1. VANSTONE J:     The appellant stood trial with another in the District Court in relation to a serious assault which took place in the parklands. 

2. The issue at trial was one of identity.  The evidence against the two was circumstantial.  There was more evidence against the female appellant than there was against her male co-accused.  The co-accused was completely acquitted.  The appellant was acquitted of aggravated causing serious harm with intent to cause serious harm, but convicted for causing harm with intent to cause harm.

3. The appeal is against conviction.  The appellant was given permission by a single judge to argue that the conviction was unsafe and unsatisfactory.  On the eve of the appeal hearing her legal advisors gave notice that she wished to argue an additional ground of appeal complaining of the lack of direction to the jury “as to how they should use the evidence of the interviews between the appellant and the police”.

4. It is accurate to say that the evidence against the appellant was in narrow compass, but it included evidence that the two accused were in the victim’s company shortly before the assault and DNA evidence tending to connect the appellant with the victim.  For the reasons which follow, it is my view that it was open to the jury to convict, that the verdict is not unreasonable, and that permission should be refused on the fresh ground which is not reasonably arguable.

   Background

5. In June 2008 a small group of homeless people were camping in tents in the east parklands near Beaumont Road.  The victim lived in nearby Dulwich.  He met with his next door neighbour at about 4.30 pm on 16 June and was to return to provide her with an evening meal.  When he left her she saw no marks or injuries about him. 

6. A Mr Brady was living in one of the tents in the parklands and knew the two accused and the victim, at least by sight.  At about 6.45 pm Mr Brady left the camp site, setting off to Whitmore Square to meet with a soup van.  As he left, he saw a group of people near to a big water puddle adjacent to the point where Beaumont Road is closed to vehicular traffic, which was close to where the victim was later seen to collapse.  The group included the co-accused, the victim, and two others.  By the time Mr Brady returned, an ambulance was in attendance and the victim was badly injured and being attended.  The ambulance had been dispatched at 7.19 pm and arrived at 7.26 pm. 

7. In the meantime, a Mr Coe had found the victim in the same area “swaying but falling and then getting up again”.  He went to him and found that he was covered with blood.  It was Mr Coe who called the ambulance.

8. A Mr Field had been watching a football game in the south parklands.  He saw three people standing in the relevant area about 100 to 150 metres away from him.  A couple of minutes later he heard what sounded like someone yelling and shortly after noticed some car headlights in the same area.  He then saw someone lying on the ground and an ambulance. 

9. The victim sustained serious head injuries.  He was unable to give evidence at the trial.  His entire head was found to be swollen.  There was blood all over his face and he had pain to his chest, arms and legs.  Some of the injuries might well have been sustained when he fell over, as seen by Mr Coe.  There was a red mark to the victim’s left hand which exhibited a zigzag pattern of multiple lines.  A similar pattern was seen on the victim’s face.  A comparable pattern was seen in a series of shoe prints in the mud in the area where the assault apparently occurred.  These were similar in appearance to the soles of the shoes seized from the appellant.  Photographs were taken of the marks to the body and of the shoe prints.  The shoes were tendered in evidence.

10. Police first attended the scene at about 7.25 pm that evening.  Later, detectives from the Adelaide CIB arrived and spoke with the appellant.  A recorded interview commenced at about 9.10 pm.  Early in the interview the appellant identified as hers a pair of white shoes which showed red staining having the appearance of blood.  Asked about the staining, she said she did not know what it was.  She claimed she had been asleep in her tent, with the co-accused, throughout the incident.  Upon later analysis spots on both shoes were found to be positive to the presumptive test for blood and DNA consistent with having come from the victim was found on one shoe.  Stains on the appellant’s jeans also gave a positive reaction to the presumptive test for blood and the victim could not be excluded as being a possible contributor to a DNA profile found near one of those stains behind the left knee.  On examination of the jeans worn by the co-accused, DNA consistent with the victim’s was found at three sites.

    Argument that the verdict was unreasonable

11. The argument in support of the first ground amounted to an attack on the quality of the evidence called.  Counsel submitted that on the basis of the evidence presented the prosecution had failed to prove an assault, failed to prove the identity of the assailant and failed to prove that any injury to the victim was the result of assault as opposed to one or more falls.

12. It was said that because of deficiencies in the police investigation and in presentation of the evidence to the jury, each item of evidence was so lacking in probative force as to render the entirety of it incapable of excluding inferences consistent with innocence.  For example, there was no scientific comparison of the herringbone patterns on the victim’s body with those in the mud, or with the appellant’s shoes.  There was no evidence of how common was a herringbone pattern on the soles of shoes.  That was said to be particularly relevant inasmuch as the area where the victim was found was very close to a path used by persons commuting into the city on foot.  The jury was merely asked to compare the photographs for itself and to draw such conclusions as it could from what was visible in the photographs of the victim’s face and hand as against the shoes.  Further, the jury was not told of the significance of the positive result to the presumptive test for blood.  It was simply not explained.  Nor did the Forensic Science Centre conduct a test to determine if the red staining on the appellant’s shoes was in fact blood.  If it were not, then it was said that the victim’s DNA being on one of the victim’s shoes was of much less significance.  Still further, there was no evidence led from the doctor who gave evidence of the victim’s injuries about the herringbone pattern on the face and left hand.  He was not asked, for example, to quantify the sort of force which might have left such marks.  It seems that because of that, the judge was not inclined to leave those two herringbone marks to the jury as potentially amounting to harm.  Then, there was no comprehensive search of the area, or of all the tents in the area.  That was important, it was suggested, because a ring said to have always been worn by the victim was never found.

13. In my view the appellant’s arguments cannot succeed.  It is true that the police investigation was extremely limited.  Much more could have been done to investigate the crime scene and to analyse the fruits of the investigation.  In particular, more should have been done to elucidate the comparison of the herringbone patterns found on the victim and in the mud at the scene with the shoes of the appellant.

14. However, the jury had the benefit of seeing photographs of those patterns taken at a time very proximate to the event and the opportunity to examine the appellant’s shoes.  This Court had the same opportunity.  The fact that the investigation could have been more extensive and the presentation of the evidence more informative does not derogate from the force of the material which was gathered.  On the strength of the statements made to police by the appellant, there should have been no opportunity for blood or other material yielding the victim’s DNA to have found its way onto her shoes.  The evidentiary weight to be given to the fact that those shoes had a herringbone pattern which appeared to be similar to those patterns found on the victim’s body, and the finding of the victim’s DNA on those shoes was quintessentially a matter for the jury.  That the victim’s DNA was found on the co-accused as well was also a relevant matter, even though the jury acquitted the co-accused.  I consider that it was plainly open to the jury to convict the appellant.

15. I would dismiss the appeal based on this ground.

    Proposed fresh ground

16. The proposed second ground of appeal concerned the failure of the judge to give any direction to the jury as to evaluation and use of certain answers given by the appellant in her interview with police.

17. A uniformed police patrol arrived at the scene at about the same time as the ambulance.  Not long after that, detectives arrived.  After police located the two apparently blood-stained shoes of the appellant (one within the appellant’s tent and one just outside it) she was spoken to by detectives at the scene.  The appellant said that she had just awakened when the police arrived.  She said she knew nothing of what had happened at the crime scene and did not know the person who drove the nearby car belonging to the victim.  As mentioned, she was asked about the red staining on her shoes and said that she did not know what it was and had not noticed it previously.  She said she and the co-accused had gone to sleep early because they had to be up early on the following morning.  She said they had been asleep since six o’clock.  She said she had been “totally asleep”.  When asked why she had gone to bed so early, she said that they had been drunk.

18. On the face of it, the assertion that she had been asleep since 6.00 pm could have been found by the jury to be contrary to the evidence of Mr Brady who claimed he had seen the co-accused with the victim, and others, at about 6.45 pm.  However, the prosecutor made nothing of what could have been seen as false denial.  That forensic decision could have turned on the fact that there was no dispute but that the camp members had been drinking heavily on that day and also that the accused would not have had any particular reason to note the time at which she retired to the tent.  In any event, neither counsel nor the judge suggested that these statements could be seen to be lies.

19. The question of whether a direction should be given was raised by the judge with counsel, Mr Charman, after the evidence had concluded.  Counsel put to the judge, in effect, that he did not consider that the evidence went so far as to potentially prove a lie.  When pressed by the judge as to whether he wished no direction be given, defence counsel asked to consider it overnight.  Nothing more was said about it.  Mr Charman frankly conceded to this Court that he preferred that the evidence was left without any direction being given.

20. In Dhanhoa v The Queen (2003) 217 CLR 1 at 12, Gleeson CJ and Hayne J, forming part of the majority, said that not every suggested lie called for a direction along the lines of Edwards v The Queen (1993) 178 CLR 193. If the prosecution did not contend that the lie amounted to evidence of guilt then, in the absence of real danger of the jury reasoning in that way, it was not generally necessary. In the judgment of McHugh and Gummow JJ, also part of the majority, it was said that not all lies called for a direction: at 17. There, as here, no such direction was sought and the appellant failed to show that there was a miscarriage of justice as a result of the failure.

21. Indeed, in the present case, as seen, not only was such a direction not sought, but counsel frankly admitted that his decision not to seek such a direction was based on his view that such a direction would not advantage the appellant.  In circumstances where no-one had suggested that the appellant’s statements to police were lies and where the appellant’s counsel considered that she was better off without any such analysis of her answers being provided to the jury, it is impossible to entertain the suggestion that a miscarriage of justice might have occurred as a result of the failure to give the direction.

22. Permission to appeal on this ground should be refused.

    Conclusion

23. For the foregoing reasons, I would make these orders:

    1.     refuse permission to appeal on ground 2;

    2.     dismiss the appeal.

24. WHITE J:             I agree with the orders proposed by Vanstone J and with her reasons.

25. KOURAKIS J:      I too would dismiss the appeal for the reasons given by Vanstone J.  The circumstantial evidence, properly considered as a whole, excluded any reasonable possibility consistent with innocence.