R v Wilson - [1999] SASC 377

R v WILSON
[1999] SASC 377

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

MILLHOUSE J. I agree, for the reasons given by our brother Duggan, that the appeal succeeds, the conviction should be set aside and that there should be a new trial.
DUGGAN J. The appellant was found guilty by verdict of a jury of the offence of armed robbery. He has appealed against the conviction on grounds which relate to the summing-up.
The alleged offence took place at about midnight on 6 September 1998 in a video store situated at Modbury. Two employees, Fiona Lovering and Lisa Frederick were inside the store when a man carrying a long barrelled gun entered the premises and asked Mrs Lovering to hand over the money. Miss Frederick was at the rear of the store at the time and when the man heard her moving about he directed Mrs Lovering to call out to her. Upon being called Miss Frederick went to where the man was standing.
The man then noticed a security camera and he asked where the tape was kept. The three then moved to an office at the rear of the store where, according to her evidence, Mrs Lovering handed over the tape. In the meantime he directed Miss Frederick to lie on the floor. The man then demanded that Mrs Lovering open the safe. She did so and the man took two bags containing money from the safe. He directed that Mrs Lovering also lie on the floor. The man then left the shop. According to Mrs Lovering he was there for approximately five minutes.
Mrs Lovering’s husband was sitting in a vehicle parked outside while he was waiting for his wife. He saw the man inside the store and started to take particular notice of him when he saw the man walk behind the counter into an area reserved for staff. He said the man then walked outside and down the street before disappearing. He said he did not see the man carrying anything but he was walking in an unusual way as though he had a stiff leg. The man was not wearing anything over his face at any time during the incident.
Two days after the incident police officers spoke to the appellant in relation to another matter. They searched a house at Northfield at which he had recently stayed and located a single barrel shotgun and a set of keys belonging to Mrs Lovering. The police thereupon requested the appellant to take part in an identification parade. He declined to do so. The police officers then prepared a photographic display which contained 12 photographs.
The photographs were shown to Mr and Mrs Lovering and Miss Frederick. Mrs Lovering identified the appellant from his photograph which was numbered seven. Mr Lovering and Miss Frederick wrongly identified photographs numbered two and eleven respectively.
The appellant gave evidence at the trial. He denied committing the offence. He said that on 6 September 1998 he drove…

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 Wilson

Details

AGLC: R v Wilson [1999] SASC 377
Case: [1999] SASC 377
Decision Date: 21 September 1999

CaseChat Overview and Summary

In the case of R v Wilson, the appellant was convicted of armed robbery and appealed against the conviction, arguing that the summing-up by the trial judge was inadequate. The offence occurred at a video store in Modbury, where the appellant allegedly entered with a gun and demanded money from the employees. The Crown's case relied heavily on the identification of the appellant by one of the employees, Fiona Lovering, despite other witnesses providing incorrect identifications and the appellant denying the offence. The defence presented an alternative account involving another individual, Zachary Gainsford, who allegedly committed the robbery and later sold the gun to the appellant.

The legal issues before the court were whether the trial judge's directions to the jury on identification evidence were adequate and whether the summing-up appropriately addressed the reliability of the identification and the relevance of other circumstantial evidence. The court examined whether the trial judge's directions sufficiently warned the jury about the dangers of convicting based on identification evidence, particularly in light of the slow and deliberate process of identification by Mrs Lovering and the incorrect identifications by other witnesses. Furthermore, the court considered whether the trial judge's direction on circumstantial evidence was appropriate, given that the case depended primarily on Mrs Lovering's identification.

The Court of Criminal Appeal held that the trial judge's summing-up did not adequately warn the jury of the dangers of convicting on identification evidence alone, especially considering the slow identification process and the mistaken identifications by other witnesses. The court found that the judge's directions on identification were too general and did not sufficiently highlight the particular issues affecting the reliability of Mrs Lovering's identification. Additionally, the court determined that the trial judge's direction on circumstantial evidence was inappropriate, as it suggested that the case could be proved without relying on Mrs Lovering's identification, which was incorrect. The court concluded that these deficiencies in the summing-up led to a miscarriage of justice and that the appeal should be allowed, the conviction set aside, and a new trial ordered.

Orders