C v R No. SCCRM 93/49 Judgment No. 3937 Number of Pages 10 Criminal Law and Procedure

[1993] SASC 3937

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1), BOLLEN(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Appellant convicted of shed breaking and larceny - conviction relied on evidence of unreliable witness - evidence of witness contained many inconsistencies - delay in witness reporting matter to police - witness's known hatred of appellant - conviction unsafe and unsatisfactory - misdirection to jury by trial judge - opposing view of evidence between appellant and unreliable witness - jury directed to decide where the truth lies - direction given was a misdirection - appeal allowed.
R v Calides (1983) 34 SASR 355, applied. Morris v The Queen (1987) 163 CLR
454, considered.

HRNG ADELAIDE, 19 April 1993 #DATE 19:5:1993
Counsel for appellant:     Mr A J Crocker
Solicitors for appellant:    Ward and Partners
Counsel for respondent:     Mr P R Brebner
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 MOHR J The appellant was convicted of the offence of shed breaking and the larceny of a slug gun. The offence was alleged to have occurred between the 1st January and the 29th November 1991. 2. The shed was on a property of a Mrs Pese. On that property, which was situated in the country near Brinkworth, there was also a house. Between January and June 1991 a Ms Charity lived in the house. The shed was locked and the window boarded up. The appellant was a frequent visitor to the house, in fact, Ms Charity said he "visited me all the time". 3. It is apparent that they had some sort of relationship. This ended, I gather from the evidence, in about June of 1991. Her attitude after they broke up was that she hated the appellant and more so when he called on her, she said on 12th November 1991, accompanied by another young lady. She made what was at the time an anonymous telephone call to the police at Clare alleging that the appellant had broken into the shed and stolen the slug gun. As a result Constable Spencer called on the appellant and had a brief conversation with him. As a result the appellant came to the Police Station the next day. He was asked whether he owned a slug gun. He said "Yes". He went on to say in answer to further questions that he had got it from Ms Charity's place and that he had found it among junk in the back yard of the premises. He thought he had asked Mrs Pese if he could have it. He denied stealing it. The evidence from Constable Spencer is short and it does not appear that the allegation of shed breaking was put to him. At the trial Mr Pese the son of Mrs Pese purported to identify the slug gun, admitted by the appellant to have been taken from the junk heap, as being one that had been in the locked and boarded up shed. He gave no evidence of ever having checked to see whether the gun said to have been in the shed was missing and did not think there was a derelict gun in the junk heap. 4. The appellant denied breaking into the shed. His evidence was that the gun had been taken from the junk heap. He still maintained he had spoken of it to Mrs Pese. He also said the gun did not work. No evidence that the gun did work was given except the evidence of Ms Charity. She said she had seen him shooting a "coke can a couple of times, he shot it while running in my lounge room. He was just shooting at everything and anything". She also mentioned a "wind propeller on the top of the farmhouse". It also appears from the evidence that at some stage the appellant at the request of Mrs Pesse shot a sheep which was in extremis. He used a .22 calibre rifle. He could not have used the slug gun whether or not it could be fired for that purpose. Ms Charity said he did use the slug gun. She admitted at one stage that the appellant had told her that there was something wrong with the slug gun. There were other unsatisfactory facets of Ms Charity's evidence. 5. The main attack on the summing up concerned a passage in it when the learned trial Judge had reviewed the evidence. He then said:- "It is very clear to you, of course, that there are considerable differences between the evidence of the accused and that of particularly Miss Charity, though there are also differences which you would have picked up between his evidence and that of Mrs Pese. You have go to decide which evidence you accept in this case." 6. That passage appeared almost at the end of the summing up. The matter was raised after the jury had retired but no redirection was given. 7. The direction as given was clearly a misdirection; see R v Calides 34 SASR
355 and particularly at pp.358 and 359 where his Honour the Chief Justice dealt with a direction which contained the passage "You must decide where the truth lies where the evidence of a witness and that of the accused conflicted". His Honour then said at p.388:- "it has been said again and again in this court and in cases to which I invited counsel's attention, which I do not propose to repeat, that where you have two opposing views of evidence or matters central to the case which will almost certainly lead, if properly considered and weighted, to a resolution of the case, it is wrong to so treat them with the comment 'It is for you to decide where the truth lies'." 8. In this case the conflict was clear. Ms Charity gave evidence that she saw the appellant break into the shed and take the gun. The accused gave evidence that he did no such thing. 9. On that ground alone the appeal must be allowed. The question remains whether or not there should be a retrial. 10. The other ground of appeal I wish to deal with is that the conviction was unsafe and unsatisfactory. It is incumbent on an appeal court in considering this ground of appeal to make an independent assessment of the evidence. Morris v The Queen (1987) 163 CLR 454. I have already referred to some matters which in my opinion were unsatisfactory. There are others. The evidence of Ms Charity contained many inconsistencies both internally and when compared with her evidence at the committal hearing. The long time that elapsed between the date of the alleged offence and it being brought to the notice of the police was never satisfactorily explained. Ms Charity's attempted explanation of a threat being made was to say the least suspect especially in view of her reporting the matter at a time her hatred of the appellant had flared up. 11. In all the circumstances I would allow the appeal, set aside the verdict of guilty and record a verdict of not guilty.

JUDGE2 BOLLEN J The appellant was convicted by a jury in the Central District Court of the offence of "Shedbreaking and Larceny". 2. It was said that he broke and entered the shed of Lorna Marie Pese and stole a slug gun the property of Phillip Lance Pese. Mr. Crocker, for the appellant, summarised the Crown case thus:
    "It was a short trial and the Crown case was in short compass.
    He was alleged to have broken into a shed which was on the
    property of premises that his then girlfriend, a woman by the
    name of Toni Charity, was renting. It was a rural property.
    The Crown called a Mrs Pese, who was the landlady. The Crown
    called Mrs Pese's son, who was the owner of the gun that was
    taken. They called the policeman, Mr Spencer, who gave some
    formal evidence of locating the gun and a record of interview;
    he was not cross-examined. By far the most critical witness was
    the woman Toni Charity who at the time of trial was about 21.
    The case was that according to Toni Charity she moved into these
    premises that Mrs Pese rented to her some time at the beginning
    of 1991 and in late January or early February of that year she
    saw something which the Crown says was the offence. She is able
    to fix that time by reference to I think she had a gall bladder
    removed towards the end of February that year. The relationship
    continued up until the middle of that year. The appellant was
    not living at the property; she was residing there by herself.
    Towards the end of 1991 she anonymously telephones the Clare
    Police Station, provides information and as a result of that the
    police attend at Mr. Cookson's parents' place." 3. The appellant acknowledged to the police that he was in possession of a slug gun. He said that he took it from a scrap heap at the rear of the relevant shed. The appellant denied that he had broken into the shed. He denied that he had stolen any gun. He said that, in effect, the gun that he had had been given him by Mrs. Pese. He gave this evidence:
    "Q. You have heard Toni Charity give evidence yesterday that
    you were her boyfriend at one stage. Were you.
    A. That's right.
    Q. You have heard Miss Charity tell the court that between
    about January 1991 and June 1991 she lived at a farmhouse that
    was rented to her by Mrs Pese.
    A. That's right.
    Q. You heard Miss Charity tell the court yesterday that she saw
    you emerge from a locked room at the farmhouse.
    A. That's right.
    Q. Do you recall that small locked room at the back of the
    farmhouse.
    A. That's right.
    Q. Have you ever been into that room.
    A. No.
    Q. Have you ever stolen anything out of that room.
    A. No.
    Q. Have you ever climbed through a window into that room.
    A. No.
    Q. When did you first become aware that the police wanted to
    speak with you.
    A. When they rang my father up.
    Q. At that time you were living in Salisbury.
    A. That's right.
    Q. Your father was down in town living and working.
    A. That's right.
    Q. As a result of your father giving you a message, you
    travelled to Clare that evening.
    A. That's right.
    Q. You went to the police station and spoke with police officer
    Spencer.
    A. That's right.
    Q. That's the man who gave evidence yesterday.
    A. That's right.
    Q. On the next day you went back there to speak with the
    policeman.
    A. That's right.
    Q. In more detail.
    A. That's right.
    Q. And the evidence that he gave yesterday as to the questions
    he asked you and the answers you gave, are what occurred on the
    second meeting.
    A. That's right.
    Q. After Mr. Spencer had spoken with you, did he attempt to
    make a phone call.
    A. Yes.
    Q. Do you have any belief as to whom he attempted to contact.
    A. Mrs Pese.
    Q. The firearm that is in court, Exhibit Pl, do you agree that
    that firearm was in the shed at your parent's property.
    A. That's right.
    Q. Who put it there.
    A. I did.
    Q. Where had you obtained the firearm from.
    A. From Mrs Pese's place.
    Q. Where.
    A. Scrap heap.
    Q. Can you just tell us what the scrap heap was and where it
    was on the property.
    A. The scrap heap, you walk out the back door, or front door at
    the back, you walk out there and it's right alongside the spare
    room.
    Q. What's on it.
    A. Twisted metal, car parts, windmill parts, just all - there
    was mainly all metal scrap.
    Q. Had you ever put anything on it.
    A. Yes, I have.
    Q. How did that come about.
    A. Through cleaning up the yard.
    Q. What did you find on that heap.
    A. A gun.
    Q. Is that the gun that is now in court as an exhibit.
    A. That's right.
    Q. What did you do after you found the gun.
    A. I found the gun, I lent it up against the fence out the
    front and then I found a sheep down.
    Q. What do you mean you found a sheep down.
    A. The front legs on the sheep were broken and I went back to
    Toni inside and I said to her 'I have to go and ring Mrs Pese.
    I have to ring Mrs Pese to see what to do about it', and she
    told me to put it down.
    Q. Was there a telephone that worked at the farmhouse where
    Toni was living.
    A. No.
    Q. Where did you go to make the phone call.
    A. My parent's place.
    Q. How far away is that.
    A. 10 minutes.
    Q. You went back to Mum and Dad's farm.
    A. Yes Q. You phoned Mrs Pese.
    A. Yes.
    Q. What did you say to her.
    A. I said 'There's a sheep down in the yard, what do I do about
    it?'. I also mentioned about the gun, but I let that go. I
    wanted to know about the sheep at first.
    Q. In relation to the sheep, Mrs Pese told you to destroy it.
    A. That's right.
    Q. In relation to the gun, what did you say to her.
    A. I said 'I found a gun in the scrap heap' and that was it and
    then we went on about the sheep.
    Q. After that phone conversation what did you do.
    A. After?
    Q. After that phone conversation with Mrs Pese, in which she
    told you to destroy the sheep, what did you do.
    A. I went back - went in the shed, got the 22 shotgun, I put it
    in the car, went across to Toni's place and I shot it.
    Q. What shed did you go into.
    A. My father's shed.
    Q. Whose 22 did you get.
    A. My father's.
    Q. You took your father's gun back to Mrs Pese's farm.
    A. That's right.
    Q. What did you do when you got back there.
    A. I shot it.
    Q. How many bullets.
    A. Two.
    Q. What did you do then.
    A. Then I went - put the gun back in the car and I went to my
    parent's place and I rang her up again.
    Q. During the time that you have gone to your parent's place
    and phoned Mrs Pese, got your father's gun, where was the slug
    gun or the gun that is now in court. Where was that.
    A. That was in my father's shed.
    Q. During the time that you found the sheep down, you go and
    phone Mrs Pese, did you have anything to do with the slug gun.
    A. Yes, I rang her up about the slug gun and I asked her if I
    could have it and she said 'yes'.
    Q. At that time, physically, where was the slug gun.
    A. That was leaning up against the fence out the front.
    Q. When you went back to your parents after shooting the sheep,
    did you make a phone call.
    A. Yes.
    Q. Who did you phone.
    A. Mrs Pese.
    Q. What did you tell her.
    A. I told her 'I have shot the sheep and I have put the sheep
    down' and I asked her about the gun.
    Q. What did you say to her.
    A. I said 'Could I have the gun' and she said 'Yes'.
    Q. What did you do then.
    A. The phone call finished and I just went back over there and
    that was the end of it and I took the gun.
    Q. When you took the gun, where did you go and what did you do
    with it.
    A. Took it back home to my parent's place and put it in the
    shed." 4. There was some evidence from Mrs. Pese that the appellant had tried to persuade her to lie to the police by telling them that she had given a gun to the appellant. But the appellant swore she had told him that he could have it. His request to Mrs. Pese was capable of having been a request that she tell the truth to the police. Be that as it may, the fact is that the jury could not have convicted unless persuaded beyond reasonable doubt that the evidence of Ms. Charity had been truthful evidence. Her evidence, if true, did prove facts on which a conviction could be based. 5. There many reasons for doubting the truth of the evidence given by Ms. Charity. I will not enumerate them. But the jury saw and heard her. The jurors were entitled to have accepted her evidence beyond reasonable doubt. The jurors did. They convicted. The appellant appeals. The grounds of appeal are:
    1. The Learned Trial Judge erred in directing the jury that
    'you have got to decide which evidence you accept in this case'
    (page 22 lines 7 - 8 summing up).
    2. The Learned Trial Judge erred in failing to direct the jury
    that if the evidence of the accused was a reasonable
    possibility, then he must be acquitted. (This direction was
    sought at pages 37 - 38 summing up).
    3. The Learned Trial Judge erred in failing to warn the jury of
    the danger of relying upon the evidence of Toni Charity given
    the unsatisfactory features of her evidence as particularised in
    4.1. (This direction was sought at pages 38-39 summing up).
    4. The verdict is unsafe and unsatisfactory because:-
    4.1 There were sufficient unsatisfactory features of Charity's
    evidence as to make it unsafe for the jury to act upon it,
    namely;
    4.1.1 inconsistent evidence at trial, compared with what was
    said at committal, on the important topic of what she was doing
    when she saw the 'theft' (p26 lines 31-32; p36 lines 28-34; p37
    lines 14-15; p43 lines 16-28)
    4.1.2 unexplained failure to report the 'theft' she witnessed
    until nine months later, and only after she saw the accused with
    his new girlfriend (p31 line 27 - p32 line 15)
    4.1.3 her insistence that the stolen gun was used to destroy the
    injured sheep (p48 lines 2-5, 23-28, 32-34) yet that gun was not
    in working order (p14 lines 4-7; p64 lines 10-11)
    4.1.4 her admitted memory difficulties because of powerful
    medication (p45 lines 7-19)
    4.1.5 her incredible account of seeing the theft by the accused,
    knowing it was wrong, yet accompanying him on the same day to do
    some shooting with the stolen gun (p41 lines 1-11)
    4.2 Without the evidence of Charity the Crown case could not be
    proved beyond reasonable doubt because 4.2.1 of a doubt that the
    Exhibit P1 was the gun belonging to Mr Pese (p12 lines 25-31,
    p15 lines 1-9)
    4.2.2 there was no evidence that it was the accused who broke
    and entered the shed." 6. In my opinion the combined affect of a thing said and not said by the learned trial judge as set out in grounds l and 2 of these grounds vitiate the conviction. I will say of grounds 3 and 4 no more than that I do not think that either has been sustained. 7. The fatal passage in the summing up is this:
    "It is very clear to you, of course, that there are considerable
    differences between the evidence of the accused and that of
    particularly Miss Charity, though there are also differences
    which you would have picked up between his evidence and that of
    Mrs Pese. You have got to decide which evidence you accept in
    this case. The Crown has got the burden of proving the matter
    beyond reasonable doubt. If you feel there is a reasonable
    doubt then you will obviously acquit the accused. If you are
    undecided then you must also acquit the accused; your verdict is
    one of not guilty because you are not positively satisfied
    beyond reasonable doubt that he is guilty." 8. It must be remembered that the background to this is evidence of a woman (Ms. Charity) who said she hated the appellant and who reported the crime which she claimed to have seen some months after the day on which she asserted it had happened. And we must remember that the appellant denied having committed the offence. 9. As will have been seen the learned trial judge said to the jury "you have got to decide which evidence you accept in this case". The learned trial judge did not direct the jury that if jurors thought the evidence of denial given by the appellant might possibly be true that they were bound to acquit. 10. Mr. Brebner, for the respondent, wrote in his outline thus:
    l. When read in context the passage complained of is a
    direction to the effect that:-
    (i) there are conflicts on the evidence;
    (ii) it is the juries task to resolve those conflicts if they
    can;
    and
    (iii) in attempting to resolve the conflicts the jury must bear
    the principles relating to the onus of proof in mind.
    2. Given the firm, clear and unambiguous directions on the onus
    of proof and that the appellant had to prove nothing (summing up
    pp 3 and 4) there was no possibility of the jury reasoning
    impermissibly that the matter was to be resolved without
    reference to the onus of proof on the basis of whether they
    preferred the evidence of Miss Charity or the appellant.
    Ground 2 1. The direction sought is not mandatory.
    2. The jury were directed that only proof beyond reasonable
    doubt would suffice. A finding that the appellant's account was
    a reasonable possibility would, of necessity, raise a reasonable

    doubt. This would be obvious to the lay mind, and, given the
    directions on the onus of proof, it cannot be demonstrated that
    there is a possibility that the jury would not have so
reasoned." 11. He said that the directions could have been better expressed but that taken with other directions they clearly put the obligation of the Crown to prove the case beyond reasonable doubt to the jury. He said that there had been no miscarriage of justice. Of the sentence "you have got to decide which evidence you accept in this case" Mr. Brebner submitted that the next sentence was the antidote. That sentence is "the Crown has got the burden of proving the matter beyond reasonable doubt". He referred to the balance of the quoted passage. I have carefully considered this submission and in the end I can not accept it. I think here is a real risk of the jury was left with misleading information about its task. 12. In R. v. Calides (1983) 34 SASR 355 at 358-359 the learned trial judge directed the jury thus - "you must decide where the truth lies". On appeal Wells J. (with whom Legoe and Matheson JJ agreed) said:
    "It seems to me that where a case has so shaped itself that the
    outcome is likely to depend upon the view taken by a jury of two
    opposing bodies of evidence, it is a very natural and easy thing
    for a jury, indeed for anyone, including a judge, to begin by
    saying to themselves or himself: 'Here are two opposing bodies
    of evidence; they can't both be true. I suppose we have to
    decide who's telling the truth.' That, I repeat, is a perfectly
    natural and almost inevitable approach to begin with, at least
    for the man in the street. That may be a perfectly practical
    start, but, unfortunately, in my opinion, it suffers badly from
    a lack of proper guidance from the principles relating to onus
    and standard of proof. It has been said again and again in this
    Court, and in the cases to which I invited counsel's attention,
    which I do not propose to repeat, that where you have two
    opposing bodies of evidence on matters central to the case which
    will almost certainly lead, if properly considered and weighed,
    to a resolution of the case, it is wrong to treat them with the
    comment, 'It is for you to decide where the truth lies.' (The
    cases to which his Honour referred were: The Queen v. Jackson
(1957) 74 WN (N.S.W.) 477; The Queen v. El Mir (1958) 75
WN (N.S.W.) 191; Price v. The Queen (1962) 36 ALJR 235; The
Queen v. Lapuse (1964) VR 43; The Queen v. Smith (1964) VR
217; Re Lamperd (1983) 46 ALR 371.) The onus of proof and the
    standard of proof must be correctly applied. It is not just for
    the jury to decide where the truth lies if that means, and it
    could well mean to a jury, that it is for them to say whether
    there is some material which could give them an inclination of
    opinion in favour of one side or the other. It would be even
    worse if the jury were left with the impression that it was
    their task to decide, and to find, whether there is some
    material for providing a basis for an inclination of opinion one
    way or the other. As the former Chief Justice, Sir Mellis
    Napier, used to say many times in this Criminal Court, in such
    circumstances there are really, for all practical purposes,
    three possibilities: the jury may be completely satisfied with
    the evidence led from the Crown, in which case, assuming all
    other matters to be properly established, the verdict will be
    guilty; the jury may be perfectly satisfied with the version
    presented by the accused, in which case there will inevitably be
    a verdict of not guilty; and there is the third possibility,
    which must never be overlooked, and that is that the jury, after
    a full and careful consideration, may arrive at the result that
    they are unable to say where the truth lies, or they are unable
    to say who is telling the truth. If that is the situation,
    then, of course, the verdict must also be not guilty. Now, it
    is true, what Mr. Martin has pointed out so clearly, that the
    directions on the onus and standard of proof given at the
    beginning and at the end of his summing up by the learned trial
    Judge in this case are impeccable, and, if applied logically,
    they would not lead the jury into error; in other words, they
    would provide, if correctly applied, a resolution of the
    difficulties created by the two references to the jury's task to
    decide where the truth lies. But, unfortunately, the portions
    of the summing up to which objections have been taken were
    concerned very closely with the essential factual issues, and
    when considering those factual issues an allusion was made - it
    may not have been an intended reference, but an allusion was
    made - to something that directly concerns onus and standard of
    proof, and as the matters then discussed by the learned trial
    Judge were so central to the case, it was more than possible
    that the jury could have been misled, that they could have
    believed that they were doing their duty, notwithstanding the
    directions on onus of proof, by finding some reason for
    accepting one side or the other, and that that could well lead
    to a miscarriage of justice." 13. Legoe J added: "I would merely add that the jury were not told, within the body of the summing up, nor at the very end of the summing up, that if they (the jury) were in doubt as to where the truth lies, the accused is entitled to the benefit of that doubt and the verdict should be not guilty." 14. These remarks are apposite here. The impugned sentence and the omitted direction jointly and severally were capable of leading the jury to have "an inclination in favour of one side or the other". The jury could have been mislead into "finding some reason for (merely) accepting one side or the other". I have added the word "merely" to the words of Wells J. I add, too, that the impugned sentence was capable of leading the jury to thinking as would the adjudicator to a debate. Which side has debated the better? The risk of miscarriage of justice is augmented by the failure to give a direction about "not knowing where the truth lies". The learned trial judge came close to giving this direction when he said "if you are undecided you must also acquit ...]" but this is not, in my opinion, a clear direction that "if they were in doubt as to where the truth lies, the accused is entitled to the benefit of the doubt and the verdict should be not guilty" (per Legoe J op.cit.). 15. In my opinion the appellant has been denied the chance of an acquittal. 16. I would allow the appeal and set aside the conviction. The alleged offence happened in 1991. All dishonesty is serious. That granted this offence (if it be such) is not high in the scale of seriousness. The evidence in support of the charge has some unsatisfactory aspects to it. I would not order a new trial. I would enter a verdict of "not guilty".

JUDGE3 MILLHOUSE J I agree that the appeal be allowed, the verdict of guilty be set aside and a verdict of not guilty be entered.