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

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

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 WHITEHEAD

Details

AGLC: R v Whitehead [2012] SASCFC 30
Case: [2012] SASCFC 30
Decision Date: 4 April 2012

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant against her conviction for causing harm with intent to cause harm. The appellant had been found guilty by a jury of this offence, with the prosecution alleging she had inflicted injuries to the victim's head and upper body. The evidence presented at trial was entirely circumstantial.

The court was required to determine two primary legal issues. Firstly, whether the jury's verdict was unreasonable or unsupported by the evidence presented. Secondly, the court considered whether the trial judge had a duty to direct the jury on how they could use certain answers given by the appellant during a police interview, which could have been interpreted as lies.

The Full Court dismissed the appeal. It reasoned that the circumstantial evidence, when considered as a whole, was sufficient to allow the jury to convict the appellant. This evidence included the appellant being in the victim's company shortly before the assault and DNA evidence linking the appellant to the victim. The court found that the evidence excluded any reasonable possibility consistent with innocence. Furthermore, the court concluded that even if the trial judge had failed to provide a specific direction regarding the potential lies in the appellant's interview, this omission did not lead to a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Permission to appeal on this ground should be refused.Conclusion For the foregoing reasons, I would make these orders:1. refuse permission to appeal on ground 2;2. dismiss the appeal. WHITE J: I agree with the orders proposed by Vanstone J and with her reasons. 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.

Ratio Decidendi

Legal Principle Established

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