R v Winters

Case [2010] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WINTERS

[2010] SASC 100

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Layton)

14 April 2010

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE

Appeal against convictions for two offences of aggravated creation of a risk of harm contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one offence of damaging property contrary to s 85(3) of the CLCA - charges arose out of incidents in a police pursuit on 3 June 2006.

Whether the trial Judge erred in warning the jury of the dangers in identification evidence in respect of two identifications admitted by the appellant - whether the unnecessary direction would have led to the error in the jury's consideration of other identification evidence.

Both the appellant's trial counsel and the trial Judge were mistaken about the existence of evidence establishing that it was the accused who was depicted in an exhibit photograph - whether those errors may have caused a miscarriage in the jury's consideration of the possibility that displacement had affected one or more identifications.

Whether the trial Judge erred in failing to give separate directions relating to the identification evidence of each of two police officers - whether the directions fell short of the requirements for directions established in Domican v The Queen (1992) 173 CLR 555.

Held:  the unnecessary direction did not cause a miscarriage of justice - it was appropriate in the circumstances of the case for the directions not to distinguish between the two officers' evidence of identification - the errors about the depiction of the appellant in the photograph did not lead to a miscarriage of justice.

If any of the trial Judge's errors had caused a miscarriage of justice, the proviso under s 353(1) of the CLCA should be applied.

Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 29(3), s 85(3), s 353(1), referred to.
Smith v The Queen (2001) 206 CLR 650; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358, applied.
Dhanhoa v The Queen (2003) 217 CLR 1; R v Easom (1921) 28 SASR 134; R v Burchielli [1981] VR 611; R v Spero (2006) 13 VR 225; R v Turner [2000] SASC 27; R v Dupas (No 3) [2009] VSCA 202; R v Razzak [2004] NSWCCA 62, considered.

R v WINTERS
[2010] SASC 100

Court of Criminal Appeal:  Nyland, White and Layton JJ

  1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by White J.

  2. WHITE J: The appellant was found guilty by a jury of two offences of aggravated creation of a risk of harm, contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA)…

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R v Winters [2010] SASC 100
Case
[2010] SASC 100
Decision Date

CaseChat Overview and Summary

The case of R v Winters involves an appeal by the appellant against his conviction by the District Court. The appellant was charged with driving a stolen vehicle, fleeing police, and possessing a firearm in a public place. The central issue before the court was whether the trial judge's directions to the jury concerning the identification evidence were adequate and correct. The appellant argued that the directions were deficient and potentially prejudicial, leading to a miscarriage of justice.

The court examined whether the judge’s directions were legally sound and sufficient to ensure a fair trial. The prosecution’s case relied heavily on identification evidence from three witnesses: two Fisheries officers and a police officer. The court considered whether the circumstances surrounding these identifications were sufficiently robust to be reliable. Furthermore, the court evaluated the weight of the circumstantial evidence, including the matching description of the vehicle and the appellant's admission to being at the scene.

In delivering the judgment, the court found that while there were some shortcomings in the judge’s directions, they did not amount to a miscarriage of justice. The identifications, along with the circumstantial evidence, provided a reliable basis for the jury’s verdict. The court also noted that under s 353(1) of the Criminal Law Consolidation Act, the appeal could be dismissed if it was considered appropriate to do so, even if there were minor procedural errors.

Consequently, the appeal was dismissed. The court was satisfied that the evidence, both direct and circumstantial, was sufficient to uphold the conviction. The judge's directions, despite some deficiencies, did not undermine the overall fairness of the trial.

Orders

Orders of the court

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Background

Background to the litigation

The appellant complains that the directions to the jury by the District Court Judge concerning the identification evidence were wrong in some respects and inadequate in other respects. Although there were shortcomings in the Judge’s directions, I do not consider that they were such as to cause a miscarriage of justice. Even if that conclusion be wrong, I consider that this as an appropriate case in which to apply the proviso under s 353(1) of the CLCA. Accordingly, I would dismiss the appeal. The reasons for that conclusion follow.Background Circumstances At the beginning of June 2006 the appellant was living in a caravan at a campsite at Point Drummond on the Eyre Peninsula. Point Drummond is approximately 90 km north-west of Port Lincoln and is a secluded site. On 3 June 2006 two officers from the Department of Primary Industries and Resources (the Fisheries officers) saw a Toyota Prado, a boat and a caravan at the campsite at about 8.00 am but did not then see the appellant. Registration records indicated that the owner of the boat was Peter Gallaher, who lived on a farm property two or three kilometres to the north of the campsite. On their return at approximately 1.00 pm, the Fisheries officers noted that the Prado and boat trailer were at a nearby boat ramp, and that the boat was off-shore. The boat, with the appellant as its sole occupant, returned to shore at approximately 3.00 pm and the Fisheries officers spoke to the appellant. They inspected his catch, issued a written caution to him for having an undersized snapper, and seized that snapper. After giving the Fisheries officers his name and address, the appellant observed one officer use a radio or telephone in their vehicle. He was apprehensive that the officer was contacting the police. The appellant had reason to be fearful of the police attending. He knew that the Prado and the caravan in which he was living were stolen and that there were a number of outstanding warrants for his arrest. The appellant’s apprehension was justified as the Fisheries officer was in fact telephoning the police. Unknown to the appellant, the Fisheries officers had also been in contact with the police earlier that day, and police were already on their way to Point Drummond. The two Fisheries officers then left the area of the ramp. The precise time at which they left was not established by the evidence. However, they met a police officer, Brevet Sgt Waldowski, a short distance away at approximately 3.20 pm, and the three of them then travelled to the appellant’s campsite in the expectation of meeting the appellant there. While at the camp site, at approximately 3.30 pm, the two Fisheries officers saw the Prado towing the boat drive past on a nearby road in the direction of Peter Gallaher’s farmhouse and then disappear from view. The Prado was too far away for them to be able to identify the driver. At about 3.45 pm, two police officers (Constables Roberts and Green) who had travelled to Point Drummond from Port Lincoln in a marked police car, saw a 4WD (which was not towing a boat) perform a U-turn and drive away from them at speed. They pursued the 4WD and radioed Sgt Waldowski for assistance. The warning lights and sirens of both police vehicles were activated.

Evidence

Evidence Before The Court

A stolen Prado which generally matched the description of the 4WD involved in the pursuit on 3 June 2006 was found outside Elliston in 2007. It had been dumped and its number plates had been removed. The Appellant’s Evidence In his evidence at trial, the appellant admitted that he had been living in the caravan at the campsite at Point Drummond, that he was using the Prado, that he knew that both the Prado and the caravan had been stolen, and that he was the person to whom the Fisheries officers had spoken at the boat ramp at Point Drummond at about 3.00 pm on 3 June 2006. He said that shortly after the two police officers left the ramp area he, being fearful that the police had been called, fled the area on foot, abandoning the Prado, the boat and its trailer on the beach. The appellant said that he had then moved across country, keeping himself hidden from the police. From time to time he was able to observe aspects of the police pursuit of the Prado. After sleeping in the open on the night of 3 June 2006, he hitched a ride into Port Lincoln on the following day and by this means was able to avoid police detection.The Prosecution Case The prosecution case that the appellant was the driver of the 4WD relied upon both direct and circumstantial evidence. The direct evidence was the identifications of Sgt Waldowski and Constable Roberts. The circumstantial evidence included the evidence that the make, model and colour of the 4WD involved in the police pursuit matched that of the Prado which the appellant had been using at Point Drummond. There was no evidence of any other Prado of matching make, model and colour being in the area at the time. The appellant was the only person on the beach when the Fisheries officers left sometime after 3.00 pm. There were three people in a carpark at the top of a hill some distance away, but they had left that area before the Fisheries officers left the ramp. Two of the men in the carpark (Messrs Gallaher and Lambert) were, in any event, known to Constable Roberts, and he said that neither of them was the driver of the 4WD involved in the pursuit. The Prado used by the appellant was next seen at approximately 3.30 pm (by the Fisheries officers who were at the caravan campsite with Sgt Waldowski). For its driver to have been someone other than the appellant, an unknown person in the remote and secluded area of Point Drummond who had not previously been seen by anyone would have had to come to the boat ramp within minutes of the appellant decamping and then driven off with the Prado and boat. Further, if, as seems probable, the boat which the police saw at Peter Gallaher’s farmhouse on the evening of 3 June 2006 was the boat which had been used by the appellant earlier in the day, that unknown person would have had to have known that the boat and trailer could be detached and left at that farmhouse. The descriptions of the driver of the 4WD made by each of the pursuing police officers generally matched the descriptions given by the Fisheries officers of the person to whom they had spoken at the ramp and who had identified himself as the appellant. In addition, all three police officers described the driver of the Prado as wearing a blue check shirt of the same kind as that which one of the Fisheries officers said the appellant was wearing.

Decision

Reasons for decision

For this additional reason, I consider that the appeal should be dismissed.Conclusion For the reasons given above, I would dismiss the appeal. LAYTON J: I agree that the appeal should be dismissed. I agree with the reasons expressed by White J and have nothing further to add.

Ratio Decidendi

Legal Principle Established

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