R v WOODS - [2011] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WOODS
[2011] SASCFC 71
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice David)
28 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Appellant appeals against conviction following a trial before a jury - permission to appeal granted in Supreme Court - majority verdict of guilty by jury in relation to one count of aggravated serious criminal trespass in a non-residential building and one count of theft - aggravating factor is that appellant committed the offence in company with another person - sole ground of appeal is that the verdict was unsafe and unsatisfactory - trial involved circumstantial evidence in relation to identity of appellant.
Whether verdict unsafe or unsatisfactory - whether it was open to the jury to be satisfied of guilt beyond reasonable doubt - whether jury must, as distinct from might, have entertained doubt about the appellant's guilt.
Held: Appeal dismissed - not a case where the jury must have entertained a doubt about the appellant's guilt - open to the jury to be satisfied of guilt beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 134 and s 169(1), referred to.
R v Weetra [2004] SASC 337; Libke v R (2007) 230 CLR 559, applied.
R v Chamberlain (No 2) (1984) 153 CLR 521, considered.

R v WOODS
[2011] SASCFC 71
Court of Criminal Appeal: Anderson, White and David JJ
ANDERSON J.
Introduction

The appellant was convicted following a trial before a jury of the offences of aggravated serious criminal trespass in a non-residential building contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and theft contrary to s 134 of the Act. The aggravating factor in relation to the trespass is that the appellant committed the offence in company with another person.
The sole ground upon which the appellant appeals is that his convictions on both counts were unsafe and unsatisfactory. The only issue at trial was that of the identification of the offenders. The prosecution presented a circumstantial case in relation to the identity of the appellant. The other offender was not apprehended.
There is no challenge to any of the evidence admitted in the trial and there is no challenge to any aspect of the summing up by the learned trial judge.
Background
The complainant was working at her business late in the evening on 7 December 2009 when she saw two men wearing hooded jackets at the door of her business premises. They threw two pot plants through the front window of the premises. The complainant then ran to the rear of the premises and hid under…

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 WOODS

Details

AGLC: R v Woods [2011] SASCFC 71
Case: [2011] SASCFC 71
Decision Date: 28 July 2011

CaseChat Overview and Summary

The appeal in *R v Woods* was brought by the appellant against his conviction for aggravated serious criminal trespass in a non-residential building and theft, where the aggravating factor was that the offence was committed in company. The appeal was heard by Anderson, White, and David JJ in the Supreme Court, following a jury trial that resulted in a majority guilty verdict. The sole ground of appeal argued was that the verdict was unsafe and unsatisfactory, given that the prosecution's case relied entirely on circumstantial evidence regarding the appellant's identity.

The central legal issue before the court was whether the jury's verdict of guilt was open to them beyond a reasonable doubt, or conversely, whether it was inevitable that the jury must have entertained a doubt about the appellant's guilt. This required the court to assess the cumulative weight of the circumstantial evidence presented at trial, which included a partial identification of the appellant's eyes by the complainant, a shoe print matching the appellant's shoe found at the scene, glass fragments found on the appellant's shoes and clothing consistent with the broken window, and DNA evidence linking the appellant to the clothing.

The court dismissed the appeal, finding that it was open to the jury to be satisfied of the appellant's guilt beyond a reasonable doubt. The judges reasoned that while individual strands of circumstantial evidence might be open to criticism, their combined effect created a strong case. The court considered the complainant's identification of the appellant's eyes, noting that despite the limited opportunity for clear facial observation, her description and subsequent selection of the appellant's photograph, coupled with accurate estimations of his age, height, and build, lent weight to the identification. The court also found that the shoe print and glass fragment evidence, when considered alongside the DNA evidence, provided a consistent narrative supporting the appellant's involvement. The court concluded that this was a classic circumstantial evidence case where the jury, having been properly instructed, was entitled to reach its verdict, and it could not be said that the jury must have entertained a doubt about the appellant's guilt.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

There is no challenge to any of the evidence admitted in the trial and there is no challenge to any aspect of the summing up by the learned trial judge.Background The complainant was working at her business late in the evening on 7 December 2009 when she saw two men wearing hooded jackets at the door of her business premises. They threw two pot plants through the front window of the premises. The complainant then ran to the rear of the premises and hid under a table. She was unsure as to where and when the offenders entered the premises or where they went when they first entered but she did hear one offender kicking various things in the room next to the room in which she was hiding. She decided to confront that offender and was backed into a corner by the offender. She was not able to see the offender’s face clearly. There were fluorescent lights in the room but the offender had covered most of his face with his hooded jacket. The complainant did, however, see his eyes and the area immediately around his eyes when, she estimates, the offender was approximately 50 centimetres away from her. At that point she was face to face with the offender and although obviously concerned with her safety she says she was in a good position to at least see his eyes. From her evidence she probably looked straight at him for a number of seconds but probably not as long as a minute. She later selected a photograph of the offender’s face from 72 photographs presented to her. It was the appellant whom she eventually identified. After a time, when the complainant and the offender were still standing face to face, the offender was then called by the second offender who had started the complainant’s car. The complainant ran to the front of the premises and saw the offender she had confronted run out through the broken window and get into the car which was already running. The offenders then drove away. Six days later, the police in the course of their investigation seized shoes from the appellant and also searched a vehicle in Royal Park at an address apparently associated with the appellant from which they seized clothing from a bag in the boot of the vehicle. In particular two pairs of shorts were seized and tested. Both contained fragments of glass. The shoes also contained fragments of glass. The circumstantial case put forward by the prosecution relied essentially on the following:1.The complainant’s identification of the eyes of the appellant from a police photo book. The complainant was shown a series of 72 photographs about five weeks after the incident and selected one which was in fact the appellant. There was no identification parade. The judge described that evidence as a partial identification.2.An imprint from the sole of the shoe left on a book cover on the floor of the complainant’s office which imprint matched the pattern on the sole of the shoe the appellant was wearing at the time of his apprehension. The jury had the photographs of the shoe mark comparison before it. The expert concluded that the accused’s shoe was capable of producing the mark on the book.3.Forensic evidence as to the similarity of the fragments of glass taken from both the shoe and the shorts compared with the fragments of glass from the broken window at the premises. Five of seven fragments from one pair of shorts had refractive indices which matched. One of two fragments from the shoes likewise matched.4.DNA evidence which linked the appellant with the shorts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J WHITE J DAVID J

As to the glass fragments, the fact is that not many members of the population would generally be found with glass fragments on their clothing. If the offender was the appellant then the presence of glass fragments on the appellant’s clothing is consistent, on the expert evidence, with the splashback of glass fragments from breaking the window. The expert gave the opinion that the offender would have had to be within two metres of the glass to have any particles of glass on his clothing. The jury was quite entitled to reason along those lines.Conclusion As I have indicated, this seems to me to be a classic circumstantial evidence case. It cannot be said that at the end of the prosecution case there was no case to answer. It may not have been a strong case but there was nevertheless a case to answer. The jury, properly instructed by the learned trial judge, came to a conclusion which in my view cannot be said to be unreasonable. It is not a case where it has been shown that the jury must have entertained a doubt about the appellant’s guilt. Rather, at most it has only been shown that the evidence is open to some criticism. That was all taken into account by the jury and in my view the appeal should be dismissed. I agree that the appeal should be dismissed for the reasons given by Anderson J. I agree that the appeal should be dismissed for the reasons given by Anderson J.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, WHITE J, DAVID J

Mr Press emphasised the extra strength of the circumstantial case by virtue of the combination of all the individual strands of evidence. He submitted that the jury considered all of the individual pieces of evidence and must have decided that the prosecution case gained strength as a result. In other words, it was the whole of the evidence which was considered. He referred to R v Chamberlain (No 2) (1984) 153 CLR 521 at 535 and 536 in support of his argument.Consideration Mr Wickens’ submission in relation to the shoe print and who left it has some merit. However, in my view the jury may well have reasoned that the complainant was not strictly accurate in her estimates of time and that because she did not have the offenders in sight from the time she saw them break the glass, it was possible for the appellant to have left the print in the office. That in my mind is a classic jury question. It was something for the jury to evaluate. It was open to conclude that both offenders went into the office, one left and confronted the complainant and the other continued to search the office then took the keys and left the building and started the car. In relation to the identification of the appellant’s eyes and Mr Wickens complaint of the inherent unreliability of such an identification, the fact of the matter is that the complainant was given 72 photographs and did, after considering two other possibilities, fix on the photograph of the appellant because of her perception that the appellant’s eyes were the same eyes as the offender she confronted. She used various descriptions of the offender’s eyes. She described the eyes as “staring at me”, as “dark beady eyes”, as “piercing eyes” and that she “looked right into them”. The appellant’s eyes do appear from the photograph to be quite distinctive. When one considers that she also got his age, height and build quite accurate, it gives some more weight to the identification of the appellant based on his eyes. As to the glass fragments, the fact is that not many members of the population would generally be found with glass fragments on their clothing. If the offender was the appellant then the presence of glass fragments on the appellant’s clothing is consistent, on the expert evidence, with the splashback of glass fragments from breaking the window. The expert gave the opinion that the offender would have had to be within two metres of the glass to have any particles of glass on his clothing. The jury was quite entitled to reason along those lines.Conclusion As I have indicated, this seems to me to be a classic circumstantial evidence case. It cannot be said that at the end of the prosecution case there was no case to answer. It may not have been a strong case but there was nevertheless a case to answer. The jury, properly instructed by the learned trial judge, came to a conclusion which in my view cannot be said to be unreasonable. It is not a case where it has been shown that the jury must have entertained a doubt about the appellant’s guilt. Rather, at most it has only been shown that the evidence is open to some criticism. That was all taken into account by the jury and in my view the appeal should be dismissed.