Christianos Van De Wiel v R No. SCCRM 95/167 Judgment No. 5202 Number of Pages 10 Criminal Law and Procedure

[1995] SASC 5202

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), DUGGAN(1) and NYLAND(3) JJ

CWDS
Criminal law and procedure - appeal and new trial, pardon and enquiry subsequent to conviction - appeal and new trial - Appeal against conviction for murder comment by alleged accomplice when being cross-exanuned by defence counsel "You're not going to ask him (the appellant) about his priors". Held that there was no miscarriage of justice, the court being satisfied that the irregularity did not affect the verdict of the jury. Maric v R (1978) 20 ALR
513 at 520; Byrne v R (1986) 20 A Crim R 306 at 312; R v Weaver (1968) 1 QB
353 and R v Miller (1980)25 SASR 170 at 209 referred to.

Criminal law and procedure - jurisdiction, practice and procedure judge's summing-up - Appellant did not give evidence at present trial and prosecution tendered the evidence which he had given at a previous trial for the same offence - the appropriate direction to be given to the jury in these circumstances considered. Weissensteiner v The Queen (1993) 178 CLR 217; M v The Queen (1994) 62 SASR 364 and R v McGregor (1967) 51 Cr App R 338 referred to.

Criminal law and procedure - jurisdiction, practice and procedure judge's summing-up - The comments of the trial judge on the failure of the appellant to call his wife as a witness for the defence considered. Held that it is appropriate to remind the jury that any reference to such failure is not intended to contradict other directions relating to the right of silence and the burden of proof. R v Murphy Full Court of the Supreme Court of Victoria, 7 April 1992 (unreported) discussed in (1992) 66 Law Institute Journal 571 and Jones v Dunkel (1959)101 CLR 298 referred to.

(NB previous proceedings - Judgments Nos 2929 and 4247 - are available on SCALE)

HRNG ADELAIDE, 21 June 1995 #DATE 3:8:1995 #ADD 20:9:1995

Counsel for appellant:     Mr S Tilmouth QC with Mr B Dixon

Solicitors for appellant:    Dixon Gallasch

Counsel for respondent:     Mr P Brebner with Mr J Pearce

Solicitors for respondent: DPP(SA)

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant has appealed against his conviction for the murder of Steven Serbert at Elizabeth West on about 26th April, 1990.

2. At the time of Serbert's death a woman named Dianne Lawford was residing with the appellant and his wife. Originally the appellant and Lawford were charged jointly with Serbert's murder. They were convicted by a jury of murder but appeals by both of them were allowed, their convictions set aside and a new trial ordered. Before the commencement of the re-trial Lawford pleaded guilty to murder and was then called as a prosecution witness in the case against the appellant.

3. The following is a brief summary of the relevant facts and circumstances. Lawford had known Serbert for some time prior to the alleged offence. At one time she shared a flat with him. She met the appellant and his wife a week or so before the alleged offence and they agreed that she could board with them. She then found out that they knew Serbert with whom she had lost contact. Lawford was taken by the appellants to the home in which Serbert was living and in the days that followed the four of them met and drank at various hotels in the Elizabeth and Salisbury areas.

4. On the day of the incident Lawford, the appellant, the appellant's wife and Serbert drank together at the Red Lion Hotel, Elizabeth North. They ate a counter meal there. Serbert was heavily affected by alcohol during the evening and a Mr Cotter gave the group a lift from the hotel to the appellant's home. Not long after, Serbert was put into a bed in the house.

5. Lawford stated in evidence that after a time Serbert got up and walked into the dining room. She said an argument developed between the appellant and Serbert after Serbert said he wanted to have sex with the appellant's wife. She said that later in the evening she and the appellant's wife went to Serbert's home to feed his pets and obtain some clothes for him. She said that when they returned to the appellant's home he was standing in the dining room next to Serbert who had a cut on his forehead and blood over his clothes. There was also blood on the floor. The appellant took Serbert to the bathroom and placed him under the shower. Serbert was then made to clean up the blood on the floor of the dining room.

6. According to Lawford the appellant and Serbert resumed the argument about the appellant's wife and the appellant then produced an iron bar and hit Serbert around the head and shoulders. He then passed the bar to Lawford who also struck Serbert with it. Lawford said she then got a cloth, cut it in half and placed one half around Serbert's neck while he was sitting on a chair. Serbert tried to get up but the appellant pushed him down. Lawford stated that Serbert tried to pull the cloth from his neck but the appellant took hold of his hands and held them down. According to Lawford the appellant's wife stood watching during the incident. At one stage she said to Lawford, "Do it". Lawford said that after she had pulled the cloth around Serbert's neck for some time he slumped to the floor. He showed no signs of life at this stage. She said that someone rang an ambulance. When the ambulance officers arrived Serbert was dead. A subsequent post-mortem examination established that death had been caused by strangulation with a ligature. A number of other injuries on the body were consistent with being caused by the iron bar which was found in the home by the police.

7. The appellant did not give evidence at the re-trial. However the prosecution tendered the evidence which he had given at the first trial as part of its case. It was common ground on the hearing of this appeal that on the re-trial the jury were entitled to use the appellant's examination-in-chief and cross-examination from the first trial both for and against the appellant. The following summary of his evidence at the first trial is taken from the judgment of the Court of Criminal Appeal on the appeal from the conviction recorded at that trial:
    "Van de Wiel said that he went to bed after Mr Cotter left.
    At one stage he got up to obtain a drink in the kitchen and
    he heard Lawford and the deceased arguing in the dining
    room. Van de Wiel stated that he then went to sleep unaware
    of the fact that the two women went to the deceased's house.
    He was awoken by his wife and went out into the kitchen. He
    saw Lawford with a steel bar in her hand. The deceased was
    sitting on a chair and Lawford hit him over the head with
    the bar. Van de Wiel said he took the bar from Lawford as
    she prepared to strike the deceased again. He told her to
    stop it and to clean up the blood which was on the floor.

According to Van de Wiel he went back to bed but in response
    to a call from his wife some time later he returned to the
    dining room and saw the deceased lying half-naked on the
    floor. Lawford was pulling on a cloth which was wrapped
    around the deceased's neck. Van de Wiel tried to prevent
    her from continuing, but she pushed him away. She was
    saying to the deceased 'You have to die'.

Van de Wiel gave confused and sometimes conflicting evidence
    of the events of the evening. At one stage in his evidence
    he gave another version of the events which he said
    transpired after he entered the dining room on this
    occasion. He said that the deceased was sitting on a chair
    and Lawford had the cloth around his neck pulling on it.
    Van de Wiel and his wife restrained Lawford and loosened the
    cloth. The deceased was told to take off his trousers and
    put them in the washing machine. At some later stage Van de
    Wiel said he saw the deceased lying on the floor while
    Lawford pulled on the cloth until the deceased exhaled a
    long breath as his head dropped sideways. When giving this
    version Van de Wiel said that he went back to bed and later
    Lawford came to the bedroom and said 'He is very quiet, I
    think I killed him'."

8. The learned judge who presided at the re-trial instructed the jury that they could find the appellant guilty of murder on the basis of a joint enterprise with Lawford or, alternatively, as an aider and abettor in the offence charged.

9. The first ground of appeal states that the learned trial judge erred in failing to discharge the jury after Lawford said in cross-examination "You're not going to ask him (the appellant) about his priors". At the time of making this statement Lawford was being asked about the details of certain convictions which had been recorded against her. Mr Tilmouth QC, who was cross-examining her at the time, did not hear the comment. The learned trial judge said nothing at the time apart from telling the witness to listen to the question. Mr Tilmouth was told of the comment later. The incident occurred late in the day and Mr Tilmouth took instructions on the matter overnight. In the morning he applied for the discharge of the jury. The trial judge refused the application and, at the request of counsel, said nothing to the jury about the matter either then or in his summing-up.

10. In Maric v R (1978) 20 ALR 513 at 520 Gibbs J pointed out that an appeal based upon an incident such as this is not against the failure to discharge the jury, but against the conviction. The question is whether the court is able to conclude that no miscarriage of justice has occurred and the test is to ask whether the court can be satisfied that the irregularity has not affected the verdict in that the jury would have returned the same verdict if it had not occurred. Byrne v R (1986) 20 A Crim R 306 at 312. In Maric's case Gibbs J referred to R v Weaver (1968) 1 QB 353 where a police officer, when giving evidence, stated that the appellants' address was one well known to the police. The appeal against conviction was dismissed and Sachs LJ commented:
    "It follows, as has been repeated time and again, that every
    case depends on its own facts. It also, as has been said
    time and again, thus depends on the nature of what has been
    admitted into evidence, the circumstances in which it has
    been admitted and what, in the light of the circumstances of
    the case as a whole, is the correct course. It is very far
    from being the rule that in every case where something of
    this nature gets into evidence through inadvertence the jury
must be discharged." (See also R v Miller (1980) 25 SASR 170
    at 209).

11. In the present case the comment made by the witness came in the course of extensive cross-examination as to her previous convictions. The witness took offence to the cross-examination and jousted with counsel, stating at one stage: "I'll bop him on the head". The witness was in the course of answering questions about an occasion when she insisted that an acquaintance act like a dog and a rabbit. The cross-examination proceeded, in part, as follows:
    "Q. 'How did he act like a dog?' 'Just run up and down the
    corridor?'
    A. Yes.
    Q. That was just fun, was it?
    Q. Yes.
    Q. 'He was barking?' 'Yes'.
    A. I don't know.
    Q. 'Why did you ask him to act as a dog?'
    A. 'I don't know why?'
    Q. All of that is true, isn't it?
    A. Yes, I'm not going to deny it.
    Q. Let's go on about the arsons then.
    A. What has this got to do with the murder charge?
    Q. Do you think the arson, the five and the two making
    seven in all, is also a joking matter?
    A. No. I can't help it if people can't control
    themselves.
    Q. On p.4 -
    A. You're not going to ask him about his priors.
    HIS HONOUR: Just listen to the question."

12. It is clear that the witness's comment was made by way of a protest and in the nature of abuse directed towards the cross-examining counsel. There is no reason to think it was a deliberate attempt to prejudice the appellant. It was not a statement which affirmed positively that the appellant had prior convictions. There was no further comment. I am satisfied that the remark could not have affected the jury and that the same verdict would have been returned if it had not been made.

13. I am of the opinion that this ground of appeal must fail.

14. The next ground of appeal asserts that the learned trial judge erred in directing the jury that two lies told by the appellant were capable of amounting to corroboration of the evidence of Lawford who was to be treated as an accomplice.

15. It was not disputed that the appellant lied to the police when first questioned by them by saying that when he came home on the evening of the alleged offence he found the deceased already in the house. He said he suspected the deceased already had broken into the house and that the fly screen had been removed from the toilet window. He said that he, the appellant, then went to bed. He said he later heard a yell, went out to investigate and saw the deceased lying on the floor. He thought the deceased was asleep. The appellant said he went back to bed. The appellant retracted the earlier part of this version in a later interview with the police.

16. The second lie was allegedly told by the appellant during his second interview with the police when he stated that he had not been in the house alone with the deceased when the two women left in a taxi to go to the deceased's house. This statement was not denied by the appellant and it was conceded that, if it was made, it was a lie. The relevance claimed for it by the prosecution was that, on Lawford's version, she returned to the house to see the appellant and the deceased together and she observed the cut on the deceased's forehead and the blood on his clothing. The prosecution argued that the appellant falsely denied being alone with the deceased in order to avoid the adverse inference which might be drawn from Lawford's evidence of what she saw upon her return.

17. The learned trial judge directed the jury in accordance with the principles applicable when lies are relied upon as corroboration. These principles are set out authoritatively in Edwards v The Queen (1993) 178 CLR
193. After explaining the nature of corroboration his Honour stated that in order to be capable of amounting to corroboration the evidence must disclose a deliberate lie as to a material issue told because of a realisation of guilt and a fear that the telling of the truth would incriminate the appellant. The jury were warned to take into account other possibilities for the telling of the lie; they were also told that corroborative evidence must emanate from a source or sources independent of the witness to be corroborated.

18. Mr Tilmouth argued that the first of the alleged lies should not have been left to the jury as corroboration because it disclosed nothing more than a foolish lie told by the appellant in order to protect others. However that explanation was a matter for the jury. They were not required to accept it, nor was the trial judge bound to act on the appellant's explanation so as to exclude this lie as one of the matters which might provide corroboration. The trial judge reminded the jury that people lie for various reasons unconnected with a consciousness of guilt. He directed them "that there must be no other reason such as panic or embarrassment or the desire to protect another, to explain the lie". He also reminded them of the appellant's explanation to the police that the lie was told to protect Lawford and his explanation at the first trial that it was to protect his wife.

19. The argument against leaving the second lie to the jury as being capable of amounting to corroboration was based on the assertion that it was not concerned with a material issue. In my opinion there is no merit in this suggestion. The prosecution alleged that the appellant had been arguing with the deceased when the two women left the house; that when the women returned there was evidence of an assault on the deceased; that the argument continued and that the assault which led to the deceased's death then took place. If the cut to the deceased's forehead had been the result of an assault when he was alone in the house with the appellant, that circumstance had a clear bearing upon whether the appellant was involved in the further assaults. The prosecution was entitled to rely upon this incident as one of a series of events leading to the deceased's death. If the appellant lied about being alone in the house with the deceased and thus having the opportunity to inflict the assault and he made the false statement because he realised the truth could implicate him in the offence, then the false statement could be relied upon as corroboration.

20. In my view, therefore, both lies were capable of amounting to corroboration of Lawford's evidence and were properly left to the jury for this purpose.

21. The next ground of appeal concerns the learned trial judge's directions touching the failure of the appellant to give evidence. His Honour had this to say on the topic:
    "Ladies and gentlemen, the accused did not give evidence
    before you. The Crown tendered his evidence at the first
    trial as part of its case, not, as I understand it, because
    they accepted his evidence there, but because it revealed
    further inconsistencies. An accused person is not bound to
    give evidence. He is entitled to stay in the witness box
    (sic) and require the prosecution to prove its case. His
    silence is not evidence of either guilt or innocence. It
    cannot fill any gaps in the prosecution case. It cannot be
    used as a makeweight.

It is true that the tender of his evidence at the first
    trial revealed his answers there under cross-examination.
    On the other hand, you, the jury, in this case, have been
    deprived of the opportunity at this trial of observing him
    in the witness box, and hearing his story tested in cross
    -examination.

Whilst his absence from the dock (sic) does nothing to
    establish his guilt, it does nothing to add to or explain or
    to vary or to contradict the evidence led before you by the
    Crown at this trial."

22. The learned trial judge made it clear elsewhere in his summing-up that the onus was on the prosecution to establish guilt beyond reasonable doubt. In the passage quoted above he warned the jury not to draw any inference adverse to the appellant by reason of his decision not to give evidence. The comment that the jury had been deprived of seeing the appellant give evidence at the re-trial was in the context of the tender of his evidence given at the previous trial. What his Honour said was merely a qualification on the fact that the jury had the appellant's answers from the first trial: it was appropriate to add that they were not answers which they had heard him give. The trial judge did not go further and give a direction of the type discussed in Weissensteiner v The Queen (1993) 178 CLR 217 concerning inferences which might be more readily drawn from the facts proved by the prosecution case by reason of the failure to give evidence of relevant facts within his knowledge. Instead, he simply pointed out that the prosecution evidence was left without comment by the appellant at the re-trial.

23. However the evidence of the appellant at the first trial, having been tendered by the prosecution on the re-trial, could be used both for and against the appellant (M v The Queen (1994) 62 SASR 364) and the main thrust of the appellant's argument on this ground was that the trial judge should have given a specific direction to the jury to that effect.

24. A similar situation arose in R v McGregor (1967) 51 Cr App R 338 where, on a re-trial, the prosecution tendered evidence given by the accused at the previous trial. He did not give evidence at the re-trial. It was argued that the trial judge in that case had withdrawn from the jury explanations given by the accused explaining his conduct and left them to consider only the admissions he had made. However it was held that the effect of the summing-up, considered as a whole, was to leave both the admissions and explanations for the consideration of the jury. In my view the same can be said of the summing-up in the present case. It is true that the jury were told that the prosecution had tendered the evidence because it revealed further inconsistencies. However, in making this comment, the trial judge was doing no more than explaining how and why the evidence was before them in the first place. It would have been better if his Honour had made specific reference to the other use to which the evidence might be put. However the trial generally and the summing-up in particular proceeded on the clear understanding that this was the case.

25. The address of counsel for the appellant to the jury was based on the assumption that they were entitled to consider the appellant's version which was given in evidence at the first trial as an explanation upon which they could act in his favour. In his address counsel said at one point:
    "His case, of course, is, as you have heard from the
    evidence which has been read, that he tried to stop the
    strangulation, was overborne by her, hitting his head and
    went off to bed. I will talk to you about that later."

26. In other parts of his address counsel specifically referred to the appellant's evidence at the first trial and relied upon it to support the appellant's case.

27. When the trial judge came to deal in his summing-up with the evidence of the appellant at the first trial he emphasised the exculpatory version given by the appellant and the explanations he gave for some incriminating aspects of the prosecution case. His Honour said:
    "Now, I read a good deal yesterday from the various
    interviews that Leigh had with the accused. I now want to
    refer briefly to what he said in his evidence at the first
    trial, and I must needs be selective.

He said he saw Lawford hit Serbert with an iron bar once,
    only once, and he took it away from her. He told Serbert to
    take off his clothes, and put them in the washing machine.
    He gave him a mop and bucket and water, and Serbert started
    cleaning up. He agreed he took him to the bathroom door, and
    saw him walk into the shower cubicle. He picked up
    Serbert's jacket and put it on the bath.

Later, he said he saw Lawford pull something around
    Serbert's neck. He tried to pull her arms away, she pushed
    him away, and he fell down and hit his head on the door
    frame. He told Mavis to take over. Mavis took over and
    tried to stop Lawford. He went back to bed.

He said that one of his dogs had hurt itself on the
    Wednesday, the same day that the ambulance took Serbert to
    hospital. He said he got blood stains on him from the dog,
    and also from bleeding himself when he hit the door frame.
    He washed his hands at the bathroom basin. He never uses
    soap.

On the topic of drinking, he said he had two schooners on
    the Thursday at the Governor MacDonnell Hotel, two schooners
    at the Elizabeth Tavern, three or four at the Red Lion, and
    three or four cans of beer when he got home. He said he was
    not drunk. He said he went to bed because he had sore feet.

He agreed he told Leigh a pack of lies on the Friday, said
    he still did not know why he did. He said 'I don't know at
    all'.

Later, he said 'I wanted to protect Mavis. She is my wife'.
    He said he did not want to protect Dianne, and later again
    he repeated that, that he wanted to protect Mavis, he didn't
    want to protect Dianne.

He denied Leigh's evidence that in that conversation they
    had on the Friday night that he told Leigh he hadn't seen
    Serbert for one or two weeks before the Thursday night. He
    said about Leigh 'He make up a nice story there, that's not
    what I say'."

28. When dealing with one of the arguments advanced by the defence his Honour said:
    "As to the evidence of blood stains on his hands and
    clothing, he reminded you of the accused's evidence at the
    first trial, of attending to his bleeding dog, and to his
    evidence about bleeding himself when assaulted by Serbert on
    the Thursday night."

29. It is apparent, therefore, that not only did the learned trial judge refrain from telling the jury that they could not use the appellant's version given in evidence at the first trial in his favour, but it was implicit in his directions that such evidence could be used in that way.

30. In my view this ground of appeal cannot succeed.

31. The final ground of appeal complains of the learned trial judge's comments on the failure of the defence to call Mrs Van de Wiel, the appellant's wife. In the course of his closing address the prosecutor commented on the fact that the appellant had not called her to give evidence. In this State prosecuting counsel are now permitted to refer to the failure to call a spouse of an accused person and it was conceded on appeal that the particular comments made by the prosecutor in this case could not be criticised. However before the trial judge summed up he was asked a question by the jury in the following terms:
    "Why was Mavis (the appellant's wife) not called to testify
    in this trial?"

32. His Honour reserved the answer for his summing-up when he told the jury:
    "The answer to that is I do not know. We have not been told
    and you should not speculate as to the reason. Mr Pearce
    referred to her absence from the witness box and made the
    point that she was a person that the defence would be
    expected to call, not the prosecution, especially as the
    accused told the jury at the first trial that Mavis was
    apparently present in or about the dining room until at or
    near the end of the incident, and, moreover, had tried to
    stop Lawford assaulting the deceased. You may well think it
    is true that, if the accused's version to the first jury was
    true, Mavis had nothing to fear from cross-examination. I
    will simply close my remarks on this aspect of the case with
    the observation that the defence case was not strengthened
    by her absence from the witness box."

33. According to the argument for the appellant the trial judge should not have gone beyond saying that the jury should not speculate on the matter. The principal concern expressed was that his Honour conveyed the impression to the jury that if the appellant's version at the earlier trial was true then it was to be expected that Mrs Van de Wiel would give evidence and the fact that she did not do so is support for the view that the appellant's version is untrue.

34. In my view this process of reasoning is not reflected in his Honour's remarks. He began the direction by advising the jury not to speculate. However the jurors had heard the prosecutor's submission and the trial judge referred to it. The next observation would have been more complete if it had included a reference to Lawford's version of Mrs Van de Wiel's role, but I do not think the direction can be viewed as putting forward an argument against the acceptance of the appellant's version. The final remark that the defence case was not strengthened by Mrs Van de Wiel's absence from the witness box is a truism which was not detrimental to the appellant.

35. It is necessary to exercise caution when directing a jury in accordance with the considerations discussed in Jones v Dunkel (1959) 101 CLR 298 and I think it would have been appropriate to include a reminder in these directions that what was said was not intended to contradict other directions relating to the right of silence and the burden of proof. (cf R v Murphy Full Court of the Supreme Court of Victoria, 7 April 1992 (unreported) discussed in (1992) 66 Law Institute Journal 571.)

36. I remain of the view, however, that the directions given did not offend any principle of law and were not open to the construction which the appellant's counsel attempted to place on them.

37. In my view the appeal should be dismissed.

JUDGE2 DOYLE CJ I concur.

JUDGE3 NYLAND J In my view the appeal should be dismissed for the reasons expressed by Duggan J.