Charnjit Singh v R Kuldip Singh v R Nos. SCCRM 94/242 and 94/253 Judgment No. 4714 Number of Pages 6 Criminal Law and Procedure

[1994] SASC 4714

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), DEBELLE(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - verdict - Appeal against conviction - appellants jointly charged with two offences - unanimously acquitted as to count 1 but convicted by majority verdict on count 2 - appeal on basis that conviction unsafe and unsatisfactory - further ground of appeal that trial judge erred in ruling case to answer - trial judge correctly found case to answer - possible explanation for differing verdicts - credit of victim real issue at trial - advantage of jury in seeing witnesses and assessing evidence - appeal dismissed. Criminal Law Consolidation Act1935, s19(1) and s40. R v Bilick and Starke (1984) 36 SASR 321; R v Kirkman 44 SASR 511; R v Gledhill 144 LSJS 98; R v Knight (1992) 175 CLR 495 and Chidiac and Asfour v R (1991) 171 CLR 432, applied.

HRNG ADELAIDE, 19 July 1994 #DATE 29:7:1994

Counsel for appellants:     Mr J R E Lister

Solicitors for appellants:    Jon Lister

Counsel for respondent:     Mr P R Brebner

Solicitors for respondent:    DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 MOHR J I agree with the decision of Nyland J.

JUDGE2 DEBELLE J I agree with the decision of Nyland J.

JUDGE3 NYLAND J This is an appeal against conviction. The two appellants were jointly charged with one count of threatening life, contrary to the provisions of s.19(1) of the Criminal Law Consolidation Act 1935. and one count of assault occasioning actual bodily harm, contrary to the provisions of s.40 of the said Act. There was a unanimous verdict of acquittal as to count 1 in relation to both appellants but by a majority verdict each was convicted on the second count. Each appellant appealed against his conviction on the basis that the conviction was unsafe and unsatisfactory and could not be supported having regard to the whole of the evidence, that the conviction with respect to the second count was irreconcilable with the verdict of acquittal on count 1 and that the learned trial judge had erred in ruling that each appellant had a case to answer in respect of count 2.

2. The charges arose out of events which occurred on the night of 26 February 1993. The victim Sukhdev Singh (Sukhdev) was at the relevant time living in the Sunlands Caravan Park at Sunlands near Waikerie. On this particular evening, the appellants Charnjit Singh (Charnjit) and Kuldip Singh (Kuldip), and a third man Harnake Singh (known as Billa) attended at the caravan park and had a conversation with Sukhdev. Also present were two other people, namely Mohinder Singh (Mohinder) and Kundan Singh (known as Papu). A discussion took place between Sukhdev and Kuldip concerning a debt owed by Kuldip to Sukhdev. Thereafter, an incident occurred in which Sukhdev was struck and knocked to the ground. Sukhdev subsequently returned to his caravan with the assistance of Mohinder and Papu. Mohinder hooked the caravan door shut because he was afraid Sukhdev might come out and start fighting. Mohinder and Papu then left.

3. Approximately 20 minutes later, Sukhdev left the caravan with the intention of going to the post office some distance away to make a telephone call. As he was leaving the caravan park, he saw the two appellants and Billa standing near a white Commodore which was at the front of the caravan park. One of them spoke to Sukhdev and invited him to come with them to have a drink. Sukhdev got into the car with the three men and they proceeded in the general direction of Waikerie. About 20 minutes later, they turned off and stopped the car on the side of the road where they had a drink. The car was then driven to another location where it was stopped and everyone got out. It was at this location that the incident, the subject of both charges, occurred. It was alleged by Sukhdev that Kuldip opened the boot of the car and produced a gun and said something like:
    "We are not going to let you go today, we are going to
    kill you."

4. Sukhdev said that Kuldip pierced him with the rifle in his chest and at about the same time Charnjit and Billa struck him a number of blows with a hockey stick and a rod. Sukhdev said that he fell to the ground and whilst on the ground he received some further blows and Kuldip hit him on the back with the butt of the rifle. He said that following this incident the three men threw him back in the car and dropped him off somewhere in Waikerie.

5. On the same night a police officer called McKnight was on patrol duty in Waikerie. He observed a male person having difficulty walking on a footpath. He stopped and spoke to the person who was Sukhdev. He observed that Sukhdev had bruising to his legs and appeared distressed. He conveyed Sukhdev to the Waikerie Hospital where he remained for approximately one week. At the hospital Sukhdev was treated by Dr Nicholson who observed that he had suffered:
    "... facial injury with the beginning of a left side
    black eye ... grazes to his nose ... multiple bruises
    to his back, arms, buttocks, thighs, shins and ankles
    consistent with being hit by a hockey stick ... linear
    welts with grazes approximately five centimetres back
    across his body ... left ankle was swollen."

6. His diagnosis was that he had suffered bruising but no other serious injury.

7. In the early hours of 27 February 1993, police officers attended at an address at Renmark where they expected to find either the motor car or the two appellants. They knocked on the door and shone torches through the window in an endeavour to gain access to the house. Constable Nagle shone his torch into a room and observed numerous persons lying on mattresses on the floor. He eventually cut a screen on the window, following which he was able to gain entry. A search was conducted of the house but nothing was located therein. The Holden Commodore was in the driveway of the house and the engine was still warm. The vehicle was searched. Within the motor vehicle the police located the handle section of a hockey stick wedged between the console and the front passenger's seat, a large fold-up style pocket knife on the front passenger's seat and behind the driver's seat on the floor, the head portion of a hockey stick and a metal bullworker which was described as an exercise instrument. The police also located two further hockey sticks in the boot of the car. No rifle was found either in the house or in the car.

8. At the conclusion of the prosecution case, Mr Boucaut of counsel for Kuldip submitted that his client had no case to answer with respect either count and Mr Lister of counsel for Charnjit sought a Prasad direction. The learned trial judge ruled that Kuldip had a case to answer and declined to give a Prasad direction.

9. Mr Boucaut then indicated that no evidence would be called on behalf of Kuldip. Charnjit, however, did give evidence. The defence case was a denial of any incident in which Sukhdev was threatened with a rifle and a denial of any second incident in which there was an assault as alleged by Sukhdev. The appellants maintained that any injuries sustained by Sukhdev that particular evening could quite easily have been the consequence of the incident which had occurred in the caravan park earlier that evening which was not the subject of any charge and that it had not been proved beyond a reasonable doubt, what, if any, injuries were sustained in any later incident.

10. The appellants argued that the evidence of Dr Nicholson as to Sukhdev's injuries was entirely equivocal as to cause and time of infliction, and given that all of those injuries could have been inflicted during the incident in the caravan park, there was no sound basis for finding a case to answer with respect to count 2. Accordingly, each of the appellants had been deprived of the opportunity for a verdict of acquittal on that count.

11. The test of whether there is a case to answer was propounded in R v Bilick and Starke (1984) 36 SASR 321 per King CJ at p.335:
    "The question of law is whether on the evidence as it
    stands the defendant could lawfully be convicted. He
    could lawfully be convicted on that evidence only if it
    is capable of producing in the minds of a reasonable jury
    satisfaction beyond reasonable doubt."

12. In this case, if the evidence of Sukhdev was accepted, there was evidence capable of proving that a second incident had occurred in which he was assaulted. On the evidence of Sukhdev, little had happened to him at the caravan park. Although he said he lay down for approximately 20 minutes thereafter, he did not say that he did so on account of any injury that he had suffered. In evidence he made no mention of feeling any after effects at all as a result of the incident at the caravan park and he did not suggest that he had any difficulty in setting off on a lengthy walk to the post office following that incident. On that basis it was open for the jury to find that most, if not all, of the injuries described by Dr Nicholson and depicted in the photographs that were tendered in evidence were caused during the second incident and that those injuries amounted to actual bodily harm. As the learned trial judge said in ruling that there was a case to answer:
    "... here is evidence on which the jury can infer that
    most, if not all of the injuries, were incurred as a
    consequence of the second assault and that is the
    evidence of the victim that he was about to set off on a
    three kilometre walk to the Ramco Post Office after the
    incident in the caravan park and his evidence that the
    injuries inflicted on him occurred outside the caravan
    park, and there is also the evidence of the police
    officers that they found the victim in the street unable
    to walk properly and in such distress that they took him
    to the hospital. It seems to me, in the light of that
    evidence, it is open to the jury to infer that a
    substantial proportion, if not all of the injuries, could
    have occurred during the course of the second incident.
    Therefore, for that reason, I consider there is a case to
    answer."

13. In my view, the learned trial judge correctly ruled that there was a case to answer.

14. The appellants further argued, however, that the unanimous acquittal with respect to count 1 meant that the jury entertained a doubt about one or more elements of that offence and that they could not have placed unqualified reliance on Sukhdev's evidence as his evidence concerning the facts material to the first count was inextricably linked to his account of facts material to the second count, the verdicts were therefore inconsistent.

15. Mr Lister, who appeared as counsel for both appellants at the hearing of the appeal, referred to a number of passages of evidence which he submitted indicated that Sukhdev was an unreliable witness whose evidence was so unsatisfactory that it could not be a basis for founding a conviction and accordingly the conviction on count 2 was, in all the circumstances, unsafe.

16. The suggested inconsistency of verdicts, however, does not of itself necessitate the quashing of a conviction. It must be demonstrated that the two verdicts cannot logically be reconciled and that the jury must have reasoned to convict in an impermissible manner: R v Kirkman 44 SASR 511; R v Gledhill 144 LSJS 98. In this case the jury were directed in plain terms that in order to convict either appellant on either count that they had to accept the evidence of Sukhdev beyond a reasonable doubt. They were also correctly directed to consider the evidence against each accused with respect to each count separately. The learned trial judge clearly and succinctly reminded the jury of those passages of evidence to which counsel had referred in the course of their addresses which might cause the jury to question the reliability of Sukhdev as a witness of truth.

17. The jury had the advantage of seeing Sukhdev and assessing his evidence. It was open to them to accept part of his evidence and to reject other parts of it. On the evidence that was presented it may well have been that the jury had some misgivings about Sukhdev's credibility as a result of some of the inconsistencies to which counsel referred. They may therefore have resolved the matter by determining that they would only convict on the count where there was some direct support for the allegations which he had made. Sukhdev was located some six to seven kilometres from the caravan park. If, in the earlier incident, he had suffered most, if not all, of the injuries described by Dr Nicholson and which led to him being admitted to hospital for a week, it is intrinsically unlikely that he would have been able to walk such a distance. Those injuries also suggest an assault far more serious than that described by Sukhdev (and supported by Mohinder and Papu) in the earlier incident. The rifle referred to by Sukhdev, however, was never located. Accordingly, although there was support for Sukhdev's evidence that he had been beaten a second time, there was no such support for his evidence that he had been threatened with a rifle. The jury may therefore have been satisfied beyond a reasonable doubt that the second beating took place but due to the absence of the rifle, had reservations about the reliability of Sukhdev's evidence as to being threatened with a rifle. In those circumstances, I do not find any inconsistency with respect to the verdicts returned with respect to each count.

18. In considering whether the verdict was unsafe and unsatisfactory, I have endeavoured to make an independent assessment of the evidence to determine whether, on the whole of that evidence a reasonable jury was bound to have a reasonable doubt. It is, however, not the function of this court, in conducting such a review to substitute its own view for that of the jury: R v Knight (1992) 175 CLR 495; Chidiac and Asfour v R (1991) 171 CLR 432. Sukhdev's credit was the real issue at the trial. The jury were given clear and precise directions as to the various inconsistencies between Sukhdev's evidence and that of the eye witnesses to the incident at the caravan park. It was open to the jury to find that the majority of inconsistencies were of a naturally occurring kind and no less than would be expected given the passage of time since the incident and the inability of even truthful witnesses to recall everything in exact sequence and detail. It was also open to the jury to find that the appellants and some of the other occupants of the house in which they were eventually located were aware of the presence of the police and were trying to avoid them.

19. As I have already mentioned, the jury may well have reached the conclusion, in view of the absence of the rifle, that Sukhdev had been exaggerating by incorporating the rifle into his description of the second incident, but had nevertheless had been completely satisfied, in view of the nature of the injuries which he suffered, the broken hockey stick found in the motor car, the behaviour of the occupants of the house a short time later, and the intrinsic unlikelihood of Sukhdev being able to have walked any lengthy distance with the injuries that he had ascribed to the second incident, that a second incident had occurred as he described and that the only course reasonably open to them in that situation was a finding of guilt with respect to count 2.

20. It is not necessary, of course, for this court to arrive at any definitive conclusion as to the reason for the jury's decision. It is sufficient if this court is satisfied that the course taken by the jury, considered against the background of the evidence in the case, does not give rise to any misgiving as to the safety of the verdict. Having considered all the aspects of the case, I am of the view that the verdict with respect to count 2 was a safe verdict. In my opinion, therefore, the appeal against conviction should be dismissed.