Warner v The Queen - [2020] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
WARNER v THE QUEEN
[2020] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
17 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
The appellant was convicted of one count of aggravated robbery pursuant to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
On 2 June 2016, a man dressed in a black hooded windcheater robbed the Foodland store at Seaford, armed with a knife. The robbery was captured on CCTV. The day after the robbery, a windcheater with a similar design was found within 2 kilometres of the store.
The only issue at trial was the identity of the robber. The prosecution relied upon the selection of the appellant in a photographic identification procedure and the similarities between the appellant’s appearance and the robber’s appearance (as captured on CCTV and described by witnesses).
The prosecution also relied upon the presence of the appellant’s DNA on the windcheater.
The appellant appeals against his conviction on the grounds that the trial judge erred in failing to give adequate directions on the identification evidence and that the conviction is unsafe and unsatisfactory.
Held, per Lovell J (Peek and Bampton JJ agreeing) dismissing the appeal:
1. Permission is granted on Ground 1 but it is dismissed.
2. Ground 2 is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137(1); Evidence Act 1929 (SA) s 34AB; Criminal Procedure Act 1921 (SA) s 158, referred to.
Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; R v Blundell [2019] SASCFC 84; Fleming v The Queen (1998) 197 CLR 250; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 258 CLR 308; SKA v The Queen (2011) 243 CLR 400; R v Place (2015) 124 SASR 467; R v Klamo (2008) 18 VR 644; R v White (2008) 102 SASR 35; Pitkin v the Queen (1995) 130 ALR 35, considered.

WARNER v THE QUEEN
[2020] SASCFC 19
Court of Criminal Appeal: Peek, Bampton and Lovell JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J and the orders he proposes.
BAMPTON J: I agree with the reasons of Lovell J and would grant permission to appeal on ground 1 but dismiss the appeal.
LOVELL J.
Overview
On 2 June 2016, a man dressed in a black hooded windcheater robbed the Foodland store at Seaford. While holding a knife, the man approached the checkout operator, Simon Robinson, and stole $1300 from two registers. The robbery was recorded on CCTV. The issue at trial was the identity of the robber.
The appellant was charged with a single count of aggravated robbery…

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 Warner v The Queen

Details

AGLC: Warner v The Queen [2020] SASCFC 19
Case: [2020] SASCFC 19
Decision Date: 17 March 2020

CaseChat Overview and Summary

The appeal concerned the appellant, Mr Warner, who was convicted of an offence. The prosecution relied on circumstantial evidence, including DNA analysis of a windcheater, and identification evidence. The appellant argued that the verdict was unsafe or unsatisfactory due to deficiencies in the identification evidence and the circumstantial evidence. He also contended that the trial judge failed to provide adequate directions to the jury regarding the dangers of identification evidence, specifically in line with the principles established in *Domican v The Queen*. The appeal was heard by Peek, Bampton and Lovell JJ.

The central legal issues before the court were whether the jury's verdict was unreasonable or insupportable given the evidence, and whether the trial judge had erred in failing to provide adequate directions on the topic of identification evidence. Specifically, the court had to determine if the trial judge's directions adequately warned the jury about the potential unreliability of identification evidence and whether the judge had sufficiently highlighted any weaknesses in that evidence, as required by *Domican v The Queen*. The court also considered whether the judge erred in refusing to provide further directions after the summing up.

The court analysed the trial judge's directions in light of the High Court's decision in *Domican v The Queen*, which mandates that judges must warn juries about the dangers of relying on identification evidence when its reliability is disputed, and must draw the jury's attention to specific factors that may undermine its reliability. While the trial judge had directed the jury to approach identification evidence with caution and referred to defence counsel's submissions regarding its weaknesses, the appellant argued this was insufficient. The appellate court found that while it would have been preferable for the judge not to have referred to counsel's submissions, the directions, when considered in context, did carry the necessary judicial authority. The court concluded that the trial judge had not erred in the circumstances of the case by directing the jury to approach the identification evidence with care, and that the directions, though not in a prescribed form, amounted to a sufficient warning by drawing the jury's attention to potential weaknesses and giving them judicial imprimatur.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The windcheater was tested for DNA. Rebecca Pinyon, forensic scientist, gave evidence that there were two contributors to the DNA profile.[17] When compared with a reference sample from the appellant, tests found a likelihood ratio of greater than 100 billion to one in favour of the proposition that the DNA profile found on the windcheater was that of Mr Warner and an unknown person rather than two unknown people being the source of the DNA.[18] The prosecution relied on the circumstantial evidence arising from these results to prove the appellant’s guilt.[17] T75.[18] T77.Other evidence Exhibit P15 is a Statement of Agreed Facts. Importantly, it states the age of the appellant at the time of the robbery (34 years old) and his height (as between 175 – 180cm or 5 foot 11 inches). The seventh agreed fact reads:7.The description of the offender that was broadcast over the police radio by the attending officers was as follows:7.1 male wearing black jumper with hoodie7.2front of jumper has a peace sign, black track pants with stripes down the side, under 6 feet, well-tanned but Caucasian, not clean shavenGrounds of Appeal The appellant relies on two grounds of appeal:1.The verdict is unsafe or unsatisfactory, in that:1.1The evidence of identification was deficient to the extent that the jury, acting reasonably must have entertained a sufficient doubt to have entitled the accused to an acquittal. 1.2The alternate pathway to conviction based upon circumstantial evidence was insufficient as to the quality and quantum of the evidence to the extent that the jury, acting reasonably must have entertained a sufficient doubt to have entitled the accused to an acquittal. 2.The Learned Trial Judge erred in failing to give adequate directions to the jury on the topic of identification:2.1The Learned Trial Judge erred in failing to give the jury a direction as to the deficiencies in the identification evidence specifically related to the circumstances of the case, in line with Domican v The Queen (1992) 173 CLR 555.2.2The Learned Trial Judge gave an inadequate warning to the jury as to the appreciable dangers of relying upon identification evidence.2.3The Learned Trial Judge erred in refusing the Defence application at the close of the summing up to correct the directions consistent with the Domican principles as per 2.1 above. Ground 1 was referred to this Court on the question of permission to appeal. Justice Peek granted permission to appeal on Ground 2. It is convenient to deal first with Ground 2.Ground 2: Inadequate Directions on IdentificationPrinciples concerning Directions on Identification Evidence In Domican v The Queen[19], the High Court held that specific directions are required on the weaknesses of identification evidence. Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:[20]Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.(Footnotes omitted)[19] (1992) 173 CLR 555.[20] Domican v The Queen (1992) 173 CLR 555 at 561 - 562.

Decision

Reasons for decision

LOVELL J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

The judge declined to redirect on the basis that her reference to counsel’s submissions was made in the context of matters the jury had to consider.Consideration The appellant submits that the directions were inadequate for the following reasons:·the primary judge’s direction (on page 6) that the jury should approach the identification evidence with caution fell short of what was required, namely that the jury must approach the evidence with caution;·the “simple reference” to appellant counsel’s submissions on the identification evidence was insufficient and was a type of direction warned against in Domican;·the primary judge failed to isolate and identify factors which undermined the reliability of the identification evidence (as required by Domican) and to the extent that the judge did so it was only by reference to defence counsel’s submissions;·the primary judge’s direction (on page 8) that the weaknesses are “matters for you to consider” and that the jury could act upon the evidence of identification seriously undermined any impact of the previous directions; and·the primary judge erred in failing to redirect the jury. Without the redirection, the jury were left with inadequate directions on potential deficiencies in the identification evidence. While a primary judge must give directions in accordance with the principles enunciated in Domican, there is no prescribed form of words that must be used. What is required is that the judge bring his or her authority to bear so that the jury understands that mistakes can occur from genuine but wrongful identification. The primary judge did not err, in the circumstances of this case, in directing that the jury should approach the identification evidence with care. The appellant further contended that the primary judge should have given directions on the weaknesses in the identification evidence without referring to defence counsel’s submissions. It is plain from Domican that “mere repetition of counsel’s arguments is an insufficient discharge of the trial judge’s duty to draw the jury’s attention to any weaknesses in the identification evidence”.[26] A trial judge must give judicial imprimatur to those weaknesses. Where defence counsel raises matters that may be reasonably regarded as undermining the reliability of identification evidence, the trial judge must direct the jury that they are bound to consider those factors when determining whether to rely upon that evidence.[27][26] Domican v The Queen (1992) 173 CLR 555 at 564.[27] Domican v The Queen (1992) 173 CLR 555 at 564. The impugned directions must be considered within their context. It is not erroneous to refer to defence counsel’s submission on the topic, so long as there are directions which give the necessary judicial authority to the particular weaknesses in the identification evidence. The weight of judicial authority should be given to the direction of the dangers in relying upon identification evidence. The directions must amount to a warning. The directions must not be "the perfunctory or half-hearted repetition of a formula”, but give guidance to the jury of the dangers inherent in identification evidence and draw the jury’s attention to the potential weaknesses in the evidence. Whilst it would have been preferable for the primary judge not to mention the submissions of counsel, in my view, in context, the primary judge was clearly putting her judicial authority behind the directions.